On March 27, 2021, Congress amended the Preventing All Cigarette Trafficking (PACT Act) to include new regulations regarding the delivery and sales of electronic nicotine delivery systems (ENDS), which include e-cigarettes, “vapes”, flavored and smokeless tobacco.
Any person or business that sells, transfers or ships for profit any ENDS in interstate commerce must now register with ATF according to 15 U.S.C. §§ 375 and 376. They must also register with any states that they ship vapes into.
The amendment includes additional laws designed to protect young people from long-term health effects associated with using vapes and other smokeless tobacco products. These include extending the PACT Act’s age verification delivery requirements to these devices and properly labeling packages that contain them.
Preventing Online Sales of E-Cigarettes to Minors
The Preventing Online Sales of E-Cigarettes to Children Act was created in 2019 to reduce children and teens access to online sales of smokeless tobacco products. According to a 2020 study by the Centers for Disease Control and Prevention (CDC), 85% of high school students and 74% of middle school students who used tobacco products in the past 30 days reported using a flavored tobacco product during that time. CDC also identified that most of the student users were influenced by mass media and their peers to use ENDS related products which often resulted in health issues such as delayed brain development, lung damage and the possibility of future addiction to other drugs.
Postal Ban on Shipping Vapes
The amended PACT Act statute bans the U.S. Postal Service (USPS) from mailing vapes and other smokeless tobacco products. This amendment to the PACT Act is a coordinated partnership between ATF and USPS, and includes the Food and Drug Administrations’ Tobacco 21 law that prohibits the selling of all tobacco products to people under the age of 21 years old. The final rule was published in the Federal Register on 10/21/2021 as 39 CFR Parts 111 and 121, at p 58398.
According to a 2019 CDC industry update, one out of every 10 high school students reported using tobacco products, due in part to easy access through mail deliveries and online sellers. In response to this issue, the PACT Act Amendment prohibits sellers from using the U.S. Post Office to ship e-cigarettes, vapes, flavored and smokeless tobacco products. The PACT Act applies to all shipments in interstate commerce (15 U.S.C. § 376) as well as to all delivery sales.
Tax Compliance
Under the PACT Act, delivery sales of electronic nicotine delivery systems must also comply with state, local or tribal laws involving excise taxes on these devices.
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