In a recent CBD-Intel briefing, noted cannabis lawyer Rod Kight (pictured) opined that the USPS had the authority to make exceptions when rulemaking to follow new legislation and that it could have done so in the case of CBD vaping devices.
The broad definition of what constitutes a vaping device under the PACT Act seemingly left precious little wiggle room. However, Kight said the final rule put forward by the USPS already showed some additions to the rule that went beyond the congressional statute.
For example, the USPS emphasised direct inhalation in the phrase: “Products that release aerosols into ambient air, not for direct inhalation.” This made the rule less restrictive than the broad definition put forward by the US Congress and would have allowed some more products originally in a grey area to be shipped.
The original definition provided for a vaping device or electronic nicotine delivery system (ENDS) broadly based on the definition of an ENDS as enabling the delivery of a substance to the user inhaling from the device. The USPS said this implied the user inhaling directly from the device, Kight said.
“This language could suggest physical contact or proximity between the user’s nose or mouth and the vapour-emitting ENDS device. By contrast, the products described in the comment release aerosolised matter into the ambient air, which in turn is breathed by persons in the room without directly placing their nose or mouth on the product,” he added.
That changed the definition of what was included in the ban on shipping to exclude products such as room diffusers.
A question of precise definition
“While these products may aerosolise solution to be inhaled by a user, the user arguably does not inhale directly ‘from the device’. As such, these products (and their components, liquids, parts, and accessories) might not fall within the scope of the POSECCA’s [PACT] definition of ENDS,” Kight explained.
He acknowledged that CBD vaping products would be included within the definition of an ENDS device as laid out in the congressional statute – making the products subject to mailing restrictions. But he argued that the room diffuser example – plus the USPS adding in B2B shipping requirements aimed at detecting paraphernalia not already in the statute, based on suggestions from state and local attorneys general – demonstrated the USPS’s claim that it would have to wait to make any exemptions from the act for CBD vaping devices until the rule was finalised was false.
“It is clear that the USPS purported not to have any discretion in drafting the rule, yet added language to certain statutory provisions that effected what could be called ‘policy’ changes,” Kight told CBD-Intel. “This belies the USPS’s contention that it merely implemented the statute without creating policy or effecting other changes.”
Kight said he was not arguing that the USPS could or should have ignored the PACT Act. Instead he was merely pointing out that it said it could not make changes in its rulemaking that differed from what Congress wrote but then went and did so anyway.
“This is simply hypocrisy,” he said. “Either the USPS could have implemented the statute verbatim, or it could have used its discretion and authority to work with the industry in small, but important ways. Instead, it claimed to have no discretion or authority while simultaneously exercising discretion and authority.
“Given that it did so – mostly to the detriment of the hemp industry’s vaping products – I contend that the USPS could have, and should have, implemented more flexibility into its rule.”
– Alyssa Choiniere CBD-Intel US correspondent