On February 19, 2021, a proposed rule from the U.S. Postal Service (the “USPS”), regarding the treatment of electronic nicotine delivery systems (“ENDS”) in the mail, was published in the Federal Register. The USPS will receive comments on or before March 22, 2021.

Statutory Background

The proposed rule follows Congress’ enactment of the Preventing Online Sales of E‑Cigarettes to Children Act (part of the larger 2021 Consolidated Appropriations Act).  Pub. L. No. 116-260, §§ 601-03 (2020). In addition to extending the Jenkins Act’s application to ENDS, id. § 602(a)(1), that statute requires the USPS to “promulgate regulations to clarify the application of the prohibition on mailing of cigarettes under [18 U.S.C. § 1716E] to” ENDS, id. § 603(a). The mailing prohibition will extend to ENDS upon the promulgation of these regulations, id. § 603(b), which is required no later than April 26, 2021, id. § 603(a).

Proposed Rule

The proposed rule would amend the USPS’ Publication 52, Hazardous, Restricted, and Perishable Mail (“Publication 52”) to prohibit the mailing of ENDS subject to certain exceptions allowed under 18 U.S.C. § 1716E.

Regarding the exceptions to nonmailability, the proposed rule:

• would treat ENDS the same as cigarettes or smokeless tobacco under the “noncontiguous states,” “business/regulatory purposes,” and “certain individuals” exceptions but
• would not extend the “consumer testing” or “public health” exceptions to ENDS.

In addition, the proposed rule would make certain terminological/definitional changes in Publication 52 and address standards for determining nonmailability.

Regarding the eventual final rule, the USPS has stated that its effective date will be “immediate” because “Congress expressly abrogated the standard 30-day notice period for a final rule under the Administrative Procedure Act (APA), which would otherwise apply to rulemakings concerning the mailability statute here. . . . .”

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These regulations will be of significant interest to various stakeholders, particularly in light of the broad definition of ENDS in the statute and the proposed rule.

We will monitor for further developments.