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Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules
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The Postal Service has determined that the exceptions above cannot feasibly be applied to inbound or outbound international mail, mail to or from the Freely Associated States, or mail presented at overseas Army Post Office APO, Fleet Post Office FPO, or Diplomatic Post Office DPO locations and destined to addresses in the United States. Publication 52, Hazardous, Restricted and Perishable Mail 472.2. As such, all cigarettes and smokeless tobacco in such mail are nonmailable, without exception.
Nonmailable cigarettes and smokeless tobacco deposited in the mail are subject to seizure and forfeiture. 18
U.S.C. 1716Ec. Senders of nonmailable cigarettes or smokeless tobacco are subject to criminal fines, imprisonment, and civil penalties, in addition to enforcement under other federal, state, and local laws. Id. at d, e, h.
Definition of ENDS
The proposed rule uses the definition of ENDS contained in 15 U.S.C. 3757, as amended by section 602a1C of the Act. Under this definition, 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. Examples include e-cigarettes, e-hookahs, e-cigars, vape pens, advanced refillable personal vaporizers, and electronic pipes.
Provisions relating to ENDS also extend to any component, liquid, part, or accessory of an ENDS, regardless of whether sold separately from the device.
Despite the name, an item can qualify as an ENDS without regard to whether it contains or is intended to be used to deliver nicotine; liquids that do not actually contain nicotine can still qualify as ENDS, as can devices, parts, components, and accessories capable of or intended for use with non-nicotinecontaining liquids.
Excluded from the statutory definition are products approved by the Food and Drug Administration for sale as tobacco cessation products or for other therapeutic purposes and marketed and sold solely for such purposes.
Accordingly, the proposed rule excludes such items from the definition of ENDS.
Approved tobacco cessation and therapeutic products thus remain mailable in domestic mail, international mail, mail treated as domestic, and mail from overseas APO/FPO/DPO addresses to United States destination addresses.
Extension of Existing Provisions to ENDS in General; Terminology In general, the proposed rule would extend the current treatment of cigarettes and smokeless tobacco to
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ENDS. This is consistent with how the Act formally includes ENDS within the definition of cigarettes in 15 U.S.C.
3752Aii, which is used in 18 U.S.C.
1716E. Consequently, all existing restrictions on and exceptions for cigarettes apply to ENDS, except where context indicates otherwise.
It is not intuitive that ENDS should be understood as a form of cigarette. In general parlance, cigarettes most commonly consist of ground leaf tobacco wrapped in paper, which deliver nicotine to a smoker when solid matter is combusted, and the resulting smoke inhaled. ENDS are electronic devices and their components and fillers, which deliver either nicotine or non-nicotine substances to a user when a liquid is vaporized, and the resulting vapor inhaled. To facilitate understanding by readers not versed in the statute, we propose to treat ENDS as a standalone category, albeit one generally subject to the same restrictions and exceptions as cigarettes, consistent with the statute.
We have considered two ways in which to express this generally equivalent treatment. First, cigarettes, ENDS, and smokeless tobacco could be listed serially in every applicable instance; however, this option appears to unduly clutter the rules text. Second, we could employ a shorthand term to encompass all three types of items.
Indeed, the statute itself appears to take this approach. Although the term is not defined in either 18 U.S.C. 1716E or 15
U.S.C. 375, tobacco product is used in the title of 18 U.S.C. 1716E and throughout its text as apparent shorthand for the products made nonmailable by that section i.e., cigarettes and smokeless tobacco.
Because ENDS now fall within that scope through their inclusion in the pertinent statutory definition of cigarettes, it seems reasonable to use the umbrella term tobacco product to refer to ENDS as well as cigarettes and smokeless tobacco. Hence, we propose to add a definition of tobacco products and to replace numerous instances of cigarettes and smokeless tobacco with tobacco products.
This proposed solution admittedly shares some of the same conceptual difficulty discussed above in relation to cigarettes: Technically speaking, ENDS
are not products derived from tobacco.
In this instance, however, the general conceptual alignment, together with the benefits of a shorthand term and consistency with the statutes use of the term, appear to weigh in favor of tobacco product in reference to all products nonmailable under 18 U.S.C.
1716E. Commenters are invited to
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propose alternative terminological approaches and to discuss the relative merits of their proposals.
Standards for Determining Nonmailability Current law requires the Postal Service to treat shipments of cigarettes and smokeless tobacco as nonmailable not only where Postal Service personnel have actual knowledge that a shipment contains such items, but also where Postal Service personnel have reasonable cause to believe that such contents are present. 18 U.S.C.
1716Ea1. Reasonable cause exists where a party is on the U.S. Attorney Generals List of Unregistered or Noncompliant Delivery Sellers, and where public statements or advertisements indicate an intent to mail nonmailable cigarettes or smokeless tobacco for payment. Id. at a2. The statutes use of includes before these enumerations of reasonable cause plainly indicates that the list is illustrative, rather than exhaustive, but it is silent on what else constitutes reasonable cause. Beyond those enumerated indicia of suspicion, other circumstances pertaining to a mailpiece may give rise to a reasonable suspicion that a package contains nonmailable cigarettes, smokeless tobacco, or ENDS. Where Postal Service personnel observe such circumstances and determine that reasonable cause exists, they may treat a package as nonmailable. The proposed rule would make this explicit.
In the specific context of ENDS, the new statutory definition conditions mailability on factors that are extrinsic to the physical item: Namely, whether a product is FDA-approved for therapeutic or tobacco-cessation use, and whether it is marketed and sold exclusively for such purposes. These circumstances are known or knowable by a mailer, but they are not necessarily apparent to Postal Service personnel reviewing a package. If the possessor of an FDA-approved and exclusively marketed therapeutic or tobaccocessation product wishes to mail it, then that person has the unique means and incentive to provide adequate information with the package so that Postal Service personnel can identify the otherwise nonmailable item as, in fact, mailable. If a mailer does not do so, then the Postal Service has no basis to disbelieve indicia indicating the presence of a nonmailable ENDS.
In expecting the mailer to supply such information, the Postal Service must be able to verify that the mailer is acting in good faith and not illegitimately treating the therapeutic/tobacco-cessation
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