As of October 20, 2021, the final rule of the U.S. Postal Service (the “USPS”) regarding the treatment of electronic nicotine delivery systems (“ENDS”) in the mail is available for public inspection via the link here. The final rule generally prohibits the mailing of ENDS, subject to certain exceptions, as of the date of its publication in the Federal Register, which we understand will be tomorrow, October 21, 2020. We also expect that as of October 21st, USPS will publish accompanying implementation materials on its websites.
We had previously blogged about this rule when it was issued in February 2021 its proposed form. In December 2020, Congress enacted 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, 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.