Comments on USPS’s Proposed E-Cigarette Rulemaking

March 22, 2021

 

Manager Product Classification
U.S. Postal Service
475 L’Enfant Plaza SW
Room 4446,
Washington, DC 20260-3436

RE: Docket Number 2021-03393; Treatment of E-Cigarettes in the Mail      

To whom it may concern,

Americans for Tax Reform thanks the United State Postal Service (USPS) for the opportunity to submit comments regarding a proposal to revise Publication 52, Hazardous, Restricted, and Perishable Mail. This proposed rule would incorporate new statutory restrictions on the mailing of electronic nicotine delivery systems (ENDS), pursuant to the passage of the Preventing Online Sales of E-Cigarettes to Children Act, and which subjects ENDS products to restrictions under the Jenkins Act and Prevent All Cigarette Trafficking (PACT) Act. These comments are intended to assist the USPS in ensuring the final rule is both practical and as closely aligned as possible to both congressional intent, which was to reduce youth access and not deny access to all adult users of ENDS products, and public health.

Electronic Nicotine Delivery Systems and Tobacco Harm Reduction

In preparing the final rule, it is critical that it be viewed in the broader context of public policy, and does not create unnecessary burdens beyond congressional intent which would prove damaging to public health in the United States through decreasing adult access to reduced risk tobacco alternatives. The science is overwhelmingly clear that ENDS are vital to the process of smoking cessation and are 95% less harmful than traditional combustible cigarettes[1] and more than twice as effective at helping smokers quit than traditional nicotine replacement therapies[2]. Nicotine replacement therapies like nicotine patches and gums have helped smokers quit the deadly habit of cigarette use for decades. In recent years, advancements in technology have created a more effective alternative: electronic nicotine delivery systems. These products use aerosolized vapor to deliver nicotine to users, mimicking the experience of smoking – thereby more effective than older nicotine replacement therapies – while removing the dangerous carcinogens found in cigarettes.

It is important to note that nicotine is not the component of cigarettes that causes illness, disease, or cancer, and is regarded by medical experts as a substance that “does not result in clinically significant short- or long-term harms”.[3] ENDS have been endorsed by over 30 of the world’s leading health organizations such as the Royal College of Physicians, the National Institute for Health and Care Excellence, Caner Research UK, Action on Smoking and Health, Royal Australian College of Physicians, and the Canadian Heart & Stroke Foundation as safer than smoking and an effective way to help smokers quit.[4] The US Food & Drug Administration itself stated that “Make no mistake. We see the possibility for ENDS products like e- cigarettes to provide a potentially less harmful alternative for currently addicted individual adult smokers who still want to get access to satisfying levels of nicotine without many of the harmful effects that come with the combustion of tobacco.”[5][6] Further, a ground-breaking study published recently demonstrates that ENDS dramatically help smokers with mental health issues, like schizophrenia, quit cigarette use, with users up to five times more likely to quit than without the use of these aids[7]

The intentions of the Preventing Online Sales of E-Cigarettes to Children Act are clear; stop sales of ENDS to children. While it is unfortunate that the blunt nature of the Act will disadvantage adult consumers unable to purchase products remotely, particularly given other carriers such as UPS, FedEx and DHL have already announced other provisions of the Act will lead them to end shipments of ENDS products, any subsequent regulations under the Act must be as precise as possible to ensure no further unintended consequences of smokers being unable to quit.

Business-to-Business Shipping Should Be Allowed & Simplified

New rules and regulations implemented by USPS should provide clarity and certainty on the exemption regarding the shipment of ENDS between legitimate businesses. The Jenkins Act prohibits business to consumer sales, not business to business sales. The business-to-business exemption already exists on tobacco products like traditional cigarettes, cigars, smokeless tobacco. While it is certain that it is the intention of USPS under the current rule to treat ENDS products similarly to combustible products for the purposes of this exception, it is submitted that in order to provide further clarity to businesses, both consumer-facing and manufacturing, that this exemption be further clarified.

If this exemption is not made certain, it would be near impossible for legitimate retailers, particularly in rural areas of the country, to receive legal products from licensed manufacturers. This would leave many adult consumers in these rural areas without access to electronic nicotine delivery systems. Covid-19 has hit rural communities the hardest and without access to ENDS, millions of Americans in rural communities would return to cigarette smoking, causing their health to suffer even more. Further, should the business-to-business exemption not be clearly acknowledged, retailers would be unable to receive components they offer for sale in their stores, forcing them to close their shops.

Similarly, consumers should also be able to return defective or potentially counterfeit products to manufacturers in a comfortable manner. Under the proposed rule, someone who wishes to return an ENDS product to the manufacturer through USPS would be required engage in a laborious procedure which would involve travelling to a physical Post Office and declaring the product to a USPS employee. This is something which may cause an insurmountable hardship for persons living a considerable distance from their nearest USPS office, may not have access to an easy method of transport, or are time-poor – all of which disproportionally affect the demographic in society most at risk.  Given that ENDS are a highly regulated industry, and the safety imperative of keeping harmful counterfeit products off the streets, it is vital that a consumer who believes they are in possession of a counterfeit or defective product be able to easily ship that item to the manufacturer for review. USPS can therefore create a safer market for consumers and enhance public health, within the framework of the Act, by clarifying a consumer-to-business exemption for returns and product complaints, as well as streamlining the process that they may be able to do so.

USPS also has the opportunity to streamline processes in a manner that will benefit both business owners and USPS itself. Due to the decisions of UPS and FedEx to stop shipments of ENDS, there will undoubtedly be an increase in the number of businesses and manufacturers that will rely on USPS for their shipping needs. Because of this, it is also vital that the process of shipping ENDS from business-to-business be simplified to ensure that legal businesses are not forced to withhold from shipping their products due to unnecessary business-to-business exemption application delays. This can be easily done by digitizing the exemption application. Digitization would significantly reduce the burden that will be placed on USPS when tens of thousands of ENDS businesses apply for exemptions so they can maintain their services, and thus would benefit both business owners, and USPS, saving considerable resources for both. Similarly, this process could also be applied to consumer to business shipments for products requiring returns, and would substantially benefit public health were this to be done.

An Exemption Should Be Granted for Consumer Testing & Public Health

The Preventing Online Sales of E-Cigarettes to Children Act clearly allows for testing exemptions and provisions under the current proposed rule would allow for business-to-laboratory shipments. As with any product, there are occasionally contamination scares with ENDS. A recent example of this was 2019, when lung injuries from black-market THC products were falsely attributed to ENDS. Without a clear business-to-laboratory exemption, manufacturers would be unable to ship their samples of their products to laboratories so that experts can determine the severity of the issue. Similarly, they would be unable to comply with FDA mandates for testing of various products required under the Premarket Tobacco Product Application (PMTA) process. Ensuring this exception is clearly codified in the final rule would protect public health and promote confidence in the safety of these products.

It is also important that the provision for testing be expanded for consumer testing as well. The current law, as it relates only to cigarettes, allows for shipping for consumer testing but places a limit on the amount of product that can be shipped, measured in packs of cigarettes. While the notice of proposed rulemaking states that ENDS do not have an equivalent measurement to cigarette packs; this should not exclude ENDS from consumer testing. Congress’ aim when passing the Preventing Online Sales of E-Cigarettes to Children Act was to have ENDS regulated at the same level of cigarettes in terms of shipping. Therefore, regulations should allow for consumer testing and be comparable to consumer testing regulations on cigarettes, and it would not place an undue burden on USPS to come up with a reasonable equivalent to what is presently in place for combustible tobacco products.  

Legitimate and licensed manufacturers should be allowed to have their products tested by the people who ENDS are designed to help. Having a future product tested by that product’s target customer is invaluable in creating a successful design. Without an exemption for consumer testing, legal manufacturers of ENDS would have no way of knowing what consumers think of a product before they offer it for sale, and what would be most effective to achieve quit-smoking aims. With ENDS, it is particularly important that manufacturers know what consumers think of their goods because a strong product will move more smokers away from cigarettes, undoubtedly saving lives. On the contrary, an un-tested, weak product will fail to incentivize adults to move away from combustible cigarettes, keeping more people smoking – and dying from – traditional cigarettes.

APO’s and FPO’s Should Be Authorized to Receive ENDS by Mail

Members of the United States Military, whether serving at home or abroad, are allowed to receive cigarettes and smokeless tobacco through USPS as an exemption to the Jenkins Act. This exemption should be extended to ENDS. Army Post Offices (APO) and Fleet Post Offices (FPO) are the sole method of mail delivery for service members and the only way to send mail to these post offices is through USPS. It would be unreasonable for the USPS to exempt traditional tobacco, but ban an alternative proven 95% safer, and common sense dictates that the same exemption apply.

As a reduced harm alternative to traditional cigarettes, ENDS have the potential to help countless service members quit the deadly habit of cigarette smoking. As of 2011, the most recent year from which data is available, 24% of military personnel smoked cigarettes, compared to 19% of the general population. Ensuring military personnel have access to ENDS should be a priority of USPS. Further, service members who are currently using ENDS to quit smoking deserve to be, and should be, permitted to continue their use of these products.

 

Ultimately, USPS should determine that ENDS deserve the same exemptions to the Jenkins Act as cigarettes and other tobacco products and clearly authorize business-to-business shipments, shipping for testing purposes, and shipping to military bases. None of these exemptions would lead to any increase in access to ENDS among minors but failing to clarify these exemptions would be incredibly detrimental to businesses across the country and have a disastrous impact on public health.

Thank you for taking the time to consider the points raised in this submission, and please do not hesitate to contact us if you have any further questions.

Sincerely,
 

Tim Andrews

Director of Consumer Issues
Americans for Tax Reform