A letter was sent to Senator Rand Paul on July 16th by advocates and members of industries impacted by the recent PACT Act legislation that is set to outlaw the mailing of vape orders through the United States Postal Service (USPS). Kai's Virgin Vapor, along with vape advocacy groups and other industry stakeholders, signed the letter calling for a review of this legislation.
The stated goal of the PACT Act was to prevent the sale of nicotine containing products to children. However, questions remain as to whether that is actually achieved through the legislation as written and at what cost, both to adult vapers that may be using vape products as a harm reduction strategy, and to small businesses.
"This consideration is critical as the goal of the underlying bill was to stop the sale of ENDS to children; hence, the Proposed Rule should be drafted in a manner to achieve the goal without compromising the availability of ENDS to individuals that use an ENDS product as a harm reduction measure," the letter wrote.
As we have pointed out many times in this blog, the USPS already offers an "adult signature on delivery" option so forcing the industry to use far more expensive and less reliable delivery services feels punitive rather than productive.
Moreover, the legislation almost exclusively impacts small businesses who rely heavily on online sales supplemented by sales to 21+ vape shops. Big Tobacco products, meanwhile, remain untouched as they are sold through gas stations, convenience stores and similar establishments that generally do not restrict access to only adults of legal smoking age the way vape shops do.
The letter brought attention to the fact that the PACT legislation was not subject to an economic impact analysis as required by the Regulatory Flexibility Act. Had an impact analysis been performed, it would have revealed the devastating effect of the legislation on small businesses. The letter was addressed to Dr. Paul because he is the Ranking Member of the Senate Small Business Committee.
"An [economic impact analysis] would also have exposed the cost to comply with the Proposed Rule -- to include finding alternative methods to ship their products, and completing multiple registrations, extensive disclosures of customer identities and locations, and additional tax schemes. These costs could put most, if not all, of the small business the Proposed Rule impacts out of business," stated the letter.
Additionally, the letter points out that the PACT Act exceeds its statutory authority because it includes zero nicotine vape liquid, as well as vaped CBD and cannabis products under the definition of Electronic Nicotine Delivery System (ENDS). The letter calls the PACT legislation "a power grab that captures products outside of Congress' intent" because none of these products actually contain nicotine.
The letter calls for the PACT Act legislation to either be withdrawn until an impact analysis is performed or for the USPS to publish a supplemental impact analysis for public comment before publishing the final rule.
As a small business heavily impacted by the PACT Act, we felt it was important to put our names to this letter. We have spent hundreds of precious man hours on the complex and extremely burdensome process of complying with this legislation. Costs have been in the many tens of thousands of dollars and Kai's Virgin Vapor has had to absorb drastically increased shipping costs, a choice we have made because we feel this legislation is unfair to our customers who depend on us to provide them with high quality vape products--including many customers who are in their 60's, 70's and 80's and at increased risk from COVID-19. The additional burden from this legislation, being placed on small businesses that are already struggling to meet FDA PMTA requirements, has felt particularly punitive.
We sincerely hope Senator Paul will intervene to protect the industries affected as well as to preserve the availability of vape products to adult vapers who deserve affordable and uninterrupted access to e-cigarettes, vape liquid and accessories.
You can read the entire letter here.