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Final Rule Alert: e-Cigarettes, e-Liquids Now Nonmailable

Posted on 10/21/2021 by Roger Marks

Update (10/21/21)

A USPS Final Rule to make e-cigarettes and their parts and components (including e-liquid) nonmailable, with limited exceptions, took effect on October 21, 2021. These products are referred to collectively as "electronic nicotine delivery systems" or ENDS products. 

From the Final Rule: 
ENDS products comprise...

(1) any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device; and

(2) any component, liquid, part, or accessory of an ENDS, regardless of whether sold separately from the device.

86 Fed. Reg. 58399 (October 21, 2021) 

USPS posted guidance for e-cigarette and e-liquid shippers in the Federal Register in April 2021, to help them submit complete exception applications for mailing ENDS products. 

Electronic cigarettes and other "vapes" are one of the seemingly endless applications for lithium batteries. US and international authorities regulate lithium batteries as hazardous materials by all modes of transportation. To ship lithium batteries with major ground and air carriers, shippers must comply with US DOT's Hazardous Materials Regulations (HMR) and/or the IATA Dangerous Goods Regulations (DGR).

NoteIATA updated its regulations for 2022 to remove a widely-used exclusion for some shipments of "excepted" lithium batteries and cells by air. 

Online Training: Shipping Lithium Batteries 

Update (5/12/21) 

On April 19, USPS issued new guidance to assist ENDS mailers in preparing exception applications for submission following the final rule.

Original Article Text (Posted 02/15/2021)

A proposed change to the US Postal Service’s rules for mailing electronic nicotine delivery systems (ENDS) could have a significant impact on shippers who use USPS to ship e-cigarettes and e-liquid. 

USPS plans to revise its Publication 52, Hazardous, Restricted, and Perishable Mail, to expand mailability restrictions for cigarettes to cover all ENDS.

Why Now?

The Preventing Online Sales of E-Cigarettes to Children Act was enacted in December 2020. The law adds ENDS to the definition of “cigarettes” subject to regulation under the Jenkins Act. 

Because USPS relies on that definition of “cigarettes” to determine mailability, they must now update their regulations to ensure that ENDS are subject to the same mailability restrictions and exceptions. 

Definition of ENDS

One thing to note in the definition of electronic nicotine delivery system is that not all of them contain nicotine. Under US law, an ENDS is "any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device."

Restrictions on mailing ENDS would also apply to “any component, liquid, part, or accessory of an ENDS, regardless of whether sold separately from the device.” 

Hazmat Considerations for ENDS

Most e-cigarettes (i.e., vape pens, vapes, e-hookahs, etc.) are powered by a rechargeable lithium battery. Lithium batteries are regulated as a miscellaneous hazardous material in transportation.

To ship lithium batteries by ground, air, or vessel using carriers like FedEx, UPS, etc., shippers must comply with the 49 CFR, IATA DGR, and/or IMDG Code regulations, respectively. That includes providing required hazmat training to employees who prepare and handle shipments.

Even when shipped in-equipment or with-equipment, lithium batteries are subject to stringent packaging, marking, labeling, and documentation standards that vary based on the mode of transportation. In some cases, the "e-liquid" that gets vaporized (“vaped”) is also a regulated hazardous material. Some of these products may be regulated as toxic hazardous materials (i.e., Class 6), for instance.

US DOT requires training for hazmat employees within 90 days of hire date, and once every three years thereafter. For air shippers, the IATA DGR requires recurrent hazmat training once every 24 months

Hazmat Limited Quantity and Lithium Battery Training

If you currently ship e-cigarette components or e-liquid by USPS, those shipments most likely qualify for relief as limited quantities under the 49 CFR Hazardous Materials Regulations (HMR) when you ship them with a non-postal carrier.

At Lion.com/Hazmat, find courses that guide you through a step-by-step process to identify, package, mark, label, and document shipments of hazmat limited quantities or lithium batteries. Effective training is crucial to keep your shipments moving safely, on time, and in compliance. 

Relevant hazmat training courses:
Shipping Lithium Batteries Online Course  
Shipping Excepted Lithium Batteries Online Course
Shipping Limited Quantities & Consumer Commodities Online Course
Comprehensive hazmat training:
Hazmat Ground Shipper Certification (DOT)
Hazmat Air Shipper Certification (IATA)

Tags: ENDS, Final Rule, hazmat shipping, USPS

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