The COVID-19 pandemic has inflicted a brutal toll on businesses. But one industry that is not only surviving but thriving is the cigarette industry. This is in part due to government policies that made it harder to buy safer alternatives, like nicotine vapor products, forcing many adults who relied on them to revert back to cigarettes. Now, a measure slipped into the 2021 omnibus spending bill in Congress would reduce access to these life-saving options even after the pandemic ends.
Buried within the omnibus spending bill, signed by outgoing President Trump at the end of December, the “Preventing Online Sales of E-Cigarettes to Children Act.” The Act, known as the “vape mail ban,” prohibits the U.S. Postal Service (USPS) from delivering nicotine or cannabis vaping products. Companies will have to rely on private carriers, like FedEx and UPS, for such shipments. Unfortunately, private carriers don’t deliver to all addresses, particularly in rural areas, and often rely on USPS for “last mile” deliveries. And even for those who are serviced by private carriers, there is no guarantee these private carriers won’t also ban vaping products, as FedEx announced it would in 2021. As Jim McDonald of Vaping360 recently conjectured, there is little doubt that anti-nicotine groups are already working on plans to pressure all other private carriers to follow suit.
On top of that, the new law also requires companies selling any type of vaping product— nicotine, non-nicotine, or cannabis—or vaping accessory to comply with the Prevent All Cigarette Trafficking (PACT) Act. The PACT Act, among other things, requires retailers to keep extensive records on customer purchases, submit those details to state officials who can collect taxes, and maintain records of potential violations for five years. It also requires retailers to collect applicable local and state excise taxes and affix to sold products any necessary “stamps” indicating excise taxes have been paid. Failure to perfectly comply with any of the PACT Act provisions could result in hefty fines and up to three years in prison.
The shipping restrictions and record-keeping demands will significantly raise the cost of doing business. Those costs will almost certainly be passed on to consumers. The increased price will be enough to deter some from continuing to vape. Particularly in rural communities, shipping may not be an option at any price, thanks to the prohibition on USPS. This may also force some people to give up vaping unless they happen to have a vape shop nearby that sells the products they want, the ability to travel to the shop, and a willingness to make the trip regularly.
No doubt, reducing the number of adult vapers is exactly the outcome supporters of the vape mail ban are not-so-secretly hoping for. Their assumption is that by forcing people to stop vaping, they will force them to quit nicotine. But they are dead wrong. As we have seen during the pandemic, the result of making nicotine vapor products less affordable and accessible for adults is that many simply return to the combustible cigarettes available at just about every corner store and gas station in America.
As its name implies, the supposed purpose of the Preventing Online Sales of E-cigarettes to Children Act is to discourage those under 21 years of age from attempting to circumvent the national minimum tobacco purchasing age. But, as Jacob Sullum wrote in Reason, this measure is overkill in the extreme. If the goal truly was to prevent those under 21 years of age from ordering e-cigarettes online, lawmakers could have simply required ID at delivery—an option offered by most mail carriers, including USPS, and one which much of the industry already utilizes.
But, that isn’t the goal. The real purpose of the vape mail ban is to hurt the legal vaping industry. On that score, it’s bound to be a success. And, in addition to boosting the cigarette business, it will also be a boon to the illegal online vaping market. Ironically, this will make it easier for minors to obtain e-cigarettes.
Despite many attempts, governments haven’t been able to stop drug trafficking online and, given the rapid pace of technology, it’s unlikely they ever will. Given the dangers associated with illicit goods, most of us prefer buying things from law-abiding businesses. But when government regulation makes some goods too expensive, hard to get, or illegal, consumers migrate to the illicit market. The more demand there is, the bigger the illicit market grows.
Moreover, dealers selling products on Snapchat or Facebook don’t just ignore shipping laws or skirt taxes, they also rarely verify the age of their customers. So, by passing the vape mail ban, Congress is not only kicking legal small businesses while they’re down, potentially putting thousands of people out of work, driving people back to smoking, and forfeiting much-needed tax revenue, they are also putting the most vulnerable consumers at greater risk. Congratulations.