All across the US, hemp and CBD companies are facing problems with shipping CBD vapes and Delta-8 products. The situation with CBD vapes has come under question as a consequence of the ATF’s PACT Act amendment of March 2021. The legality of Delta-8 varies from state to state. This is a landscape that’s changing rapidly and confounding legally operating businesses.
CBD VAPE PRODUCTS
The ATF’s PACT (Preventing All Cigarette Trafficking) Act was signed into law in 2009, prohibiting the use of the United States Postal Service to deliver cigarettes and smokeless tobacco products directly to consumers. The 2020 PACT Act amendment, the “Preventing Online Sales of E-Cigarettes to Children Act,” modifies the original definition of “cigarette” in the PACT Act to include Electronic Nicotine Delivery Systems (ENDS). The term “ENDS” is defined very broadly to include all vaping products, liquids, components, and accessories, whether they contain nicotine or not. Specifically, an ENDS product is defined as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device,” including “an e-cigarette; an e-hookah; an e-cigar; a vape pen; an advanced refillable personal vaporizer; an electronic pipe; and any component, liquid, part, or accessory of a device described [above], without regard to whether the component, liquid, part, or accessory is sold separately from the device.” Based on this definition of ENDS, zero-nicotine e-liquids, synthetic “tobacco-free” nicotine e-cigarettes, and CBD/THC/hemp vape pens, among other things, would all appear to be captured.
The CBD industry workaround has been that since their products were not tobacco products, they could still ship to customers providing an adult signature could be obtained to ensure that children would not have access. United States Postal Service does not offer signature service for standard 1st class mail, but UPS has that capability. Companies felt safe to continue to ship with UPS.
Now UPS has elected to follow the United States Postal Service’s lead concerning CBD vape products. CBD companies are having their products seized at UPS distribution points and, in some cases, are being informed that UPS may also have to cease incoming deliveries to sellers that try to continue shipping CBD vape products with them.
There is less information available about the status and future of vape shipping, but for now, it appears that those online markets may be targeted for investigation.
DELTA-8
The FDA’s Delta-8 web page states that:
Delta-8 tetrahydrocannabinol, also known as delta-8 THC, is a psychoactive substance found in the Cannabis sativa plant, of which marijuana and hemp are two varieties. Delta-8 THC is one of over 100 cannabinoids produced naturally by the cannabis plant but is not found in significant amounts in the cannabis plant. As a result, concentrated amounts of delta-8 THC are typically manufactured from hemp-derived cannabidiol (CBD).
This means that Delta-8 is, at its base, a CBD hemp product, which is federally legal. But once it has been chemically converted into Delta-8, a form of THC, is it then federally illegal? The FDA has neither tested nor approved Delta-8, so how do sellers and shippers decide how to proceed?
Delta-8 is a naturally occurring cannabinoid in all cannabis plants – one of over 100 such substances by recent estimates – but in minimal quantities. Delta-8 falls into the adult use category of restrictions because it may cause some sensitive individuals to become intoxicated, leading to the question: Does the fact that the Delta-8 currently derived from CBD hemp make it a hemp product or a THC product?
The answer, or the lack of one, has resulted in several states, including Oregon, outlawing Delta-8. More are considering doing likewise. The challenge for CBD hemp companies becomes one of keeping up with constant policy changes at the risk of inadvertently missing a step. Here’s where it really gets challenging: Because hemp businesses conduct most of their sales online, products obviously must be shipped to buyers. Shipping companies know they cannot accept THC products for delivery. Still, the gray area into which Delta-8 falls puts them in a precarious position if they continue providing services to companies that sell Delta-8.
Now sellers must ask themselves, do we try to sort out the market and restrict sales only in particular states? What sorts of legal issues are they facing as the landscape constantly changes? As far as shipping companies are concerned, do they continue to provide services to companies that could be seen as distributing prohibited materials?
HEMP AND CBD-DERIVED PRODUCTS IN LIMBO
These questions are on literally everyone’s mind. Sellers, shipping companies, and buyers are frustrated by the state-to-state regulatory differences. Lawmakers at federal and local levels are dealing with the complexities of regulation and enforcement as producers develop new products from CBD/hemp.
Since the first states began to legalize adult-use cannabis (THC) in 2012, changes have been so wildly frequent and often so sweeping that it’s an almost daily battle to stay current. A decade is a very short time into the rebirth of an industry that has been illegal for more than a century. The hard work being put in on all fronts is commendable, if not enormously complex. Now the CBD/hemp industry, which has enjoyed a much more open business environment than adult use cannabis, is beginning to feel the regulatory squeeze. If history tells us anything, it’s that one regulation leads to another, and the domino-effect begins.
SPLITTING HAIRS
At what point does CBD/hemp cease to be CBD/hemp? Do CBD/hemp vape products differ enough from tobacco vape products to set them apart from the PACT act? These are the questions facing both shippers and shipping companies. Since the federal government is technically out of the picture as far as cannabis legalization is concerned (other than to maintain cannabis on the Schedule 1 list and, ironically and hypocritically, to collect taxes-as-usual from legal cannabis businesses), shipping falls under their jurisdiction. If Delta 8 derived from CBD/hemp is determined to fit the profile of a Schedule 1 drug, it cannot be legally be shipped across state lines. CBD companies that do most of their business in Delta 8 are keeping a close eye on developments in this area.
The fact that bears repeating on this issue, as with a proliferation of other unexpected consequences of legalization, is that for every new regulation created, an equal and opposite black market is also created. CBD/hemp is abundant currently, and vape oils and Delta 8 are made from easily-sourced solvents and acids. Since consumer safety is at the forefront of legal CBD companies’ business regulations and practices, all products they offer for sale must pass multiple tests conducted by accredited, independent labs. Public safety should always come first. Making it difficult or impossible for these businesses to ship their products to the states that accept them for sale puts more than just profits at risk.
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