Vapes and E-Cigarettes
ATF compliance checks and audits will depend on numerous factors including industry compliance; thus, ATF cannot answer this question at this time. ATF currently conducts periodic PACT Act inspections and issues civil fines for PACT Act violations.
Whether one person is responsible for the bad acts of another depends on general principles of law such as those pertaining to aiding and abetting and conspiracy and must be analyzed on a case-by-case basis. Generally speaking, one’s liability will be tied to one’s knowledge of and complicity in the other’s bad act.
Example of Bad Acts
For example, a manufacturer or wholesaler may reasonably believe that an out-of-state retailer/person who drives hundreds of miles to buy a tobacco product that they can readily purchase in their home state is evading tax and reporting requirements.
If the seller sells products to this retailer/person despite having reasonable cause to believe the retailer/person is not a legitimate tax-paying retailer, the seller may potentially be liable under the PACT Act and other laws.
Whether the USPS, a third-party common carrier, or your own delivery service is used, any person who sells, transfers or ships electronic nicotine delivery systems (ENDS) for profit in interstate commerce into a state, locality or Indian country of an Indian tribe taxing the sale or use of ENDS or who advertises or offers ENDS for such sale, transfer, or shipment, must register with ATF and file reports with the states, localities and Indian countries where the ENDS are being sold, transferred or shipped. See 15 U.S.C. §§ 375 and 376.
Additionally, an online sale of ENDS to a consumer who is not physically present is a delivery sale.
The term “delivery sale” means any sale of cigarettes (including ENDS) or smokeless tobacco to a consumer if:
- the consumer submits the order for the sale by means of a telephone or other method of voice transmission, emails, traditional mail, the internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or
- the cigarettes or smokeless tobacco are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer obtains possession of the cigarettes or smokeless tobacco.
See 15 U.S.C. § 375.
Delivery sales are subject to legal requirements relating to:
- shipping;
- recordkeeping requirements;
- all state, local, tribal, and other laws generally applicable to the sale as if the delivery sales occurred entirely within that specific state and place, including laws imposing—
- (A) excise taxes;
- (B) licensing and tax-stamping requirements;
- (C) restrictions on sales to minors; and
- (D) other payment obligations or legal requirements relating to the sale, distribution, or delivery of cigarettes or smokeless tobacco; and
- the tax collection requirements set forth in subsection (D).
See 15 U.S.C. § 376a.
No. Monthly reports for electronic nicotine delivery systems (ENDS) only need to be filed in states, localities and Indian territories that tax the sale or use of ENDS, not with ATF.
The PACT Act not only applies to shipments in interstate commerce (see 15 U.S.C. § 376), but also to all delivery sales (see 15 U.S.C. § 376a).
The term “delivery sale” means any sale of cigarettes (including electronic nicotine delivery systems, a.k.a. ENDS) or smokeless tobacco to a consumer if:
- the consumer submits the order for the sale by means of a telephone or other method of voice transmission, the mails, or the internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or
- the cigarettes or smokeless tobacco are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer obtains possession of the cigarettes or smokeless tobacco.
See 15 U.S.C. § 375.
Delivery sales are subject to legal requirements relating to:
- shipping;
- recordkeeping requirements;
- all state, local, tribal, and other laws generally applicable to the sale as if the delivery sales occurred entirely within that specific state and place, including laws imposing—
- (A) excise taxes;
- (B) licensing and tax-stamping requirements;
- (C) restrictions on sales to minors; and
- (D) other payment obligations or legal requirements relating to the sale, distribution, or delivery of cigarettes or smokeless tobacco; and
- the tax collection requirements set forth in subsection (D).
See 15 U.S.C. § 376a.
The first PACT Act reports were due on April 10, 2021.
According to 15 U.S.C. § 376(a)(2), all reports are due on the 10th day of each calendar month with the tobacco tax administrator of the state into which shipments are made, a memorandum or a copy of the invoice covering every shipment of cigarettes (includes electronic nicotine delivery systems, a.k.a. ENDS) or smokeless tobacco made during the previous calendar month into the state. Each memorandum or invoice must include the name and address of the person to whom the shipment was made, the brand, the quantity, the name, address, and phone number of the person delivering the shipment to the recipient on behalf of the delivery seller. All invoice and memoranda information relating to specific customers must be organized by city or town and by zip code.
