Back in January, I published the first part of this article, which is unsurprisingly about how bad the law is getting for hemp CBD vape companies. Since then, it’s not surprising that things have gotten worse. Let’s just jump in and see what happens.
First, California recently proposed a law (AB-45) banning all smokable hemp products, including vapes. There have been a lot of setbacks already and I think the law is unlikely to be passed if it contains these provisions. Assuming that it does, California will join a growing number of states banning smokable hemp or hemp-derived vapes in one form or another.
Second, the FDA has sent out another warning letter since the first post in this series was published, making some allegations regarding vape products as follows:
in addition, [the vape] The product is of particular concern to the Agency because the ingredients and potential contaminants in oral inhalation products can induce laryngospasm and bronchospasm and be toxic to tissues in the upper or lower airways. Inhalation products that are intended to act locally in the airways can also be absorbed and cause undesirable systemic effects such as increased heart rate or increased blood pressure.
These FDA statements seem to reflect a growing aversion to CBD vape products, and we have seen the FDA now have issues with hemp vape products several times in written letters, despite not having the same strong stance on vapes with who did it B. Foods containing CBD.
Finally, and probably most important for now, are the new changes to the PACT law. The PACT Act is a federal act (the Preventing the Cigarette Trafficking Act) that has long been on the books and was recently amended to deal with vape products. In essence, the PACT law requires people who sell and ship cigarettes to complete certain state / federal registrations and reports, and places additional requirements on B2C sellers.
Amendments to the PACT Act, which were included in a December 2020 Congress Spending Act, changed the PACT Act to include Electronic Nicotine Delivery Systems (ENDS). This is a generally defined term that essentially encompasses all electronic devices that allow a user to inhale a substance from that device AND components, liquids or parts for these devices. This is a breathtakingly broad requirement and brings a variety of different CBD vape products and accessories within the scope of the PACT Act that require all sorts of different compliance measures.
What is even more problematic, however, is the fact that companies that might comply with the PACT Act may be effectively prevented from doing so. The USPS recently proposed rules that make it clear that ENDS can only be sent if one of a few exceptions applies. These exceptions generally require requests and other compliance. Even if companies can meet the requirements of the PACT Act, they may not be able to ship products anyway (and failure to comply with these rules can even lead to criminal penalties). Leading private airlines have apparently also announced that they will not be shipping vape products either.
The business opportunities for hemp CBD vape companies and smokable hemp products in general are tightening. You can find more developments on the law Law Blog.