The Future for Smokable CBD Products is Not Great: Part 2

Back in January, I published the first part of this article, which, not surprisingly, is all about how bad the law is getting for hemp CBD vape companies. Since then, things have, also not surprisingly, gotten even worse. Let’s just jump right into it and see what’s happening.

First off, California recently proposed a law (AB-45) that would ban all smokable hemp products, including vapes. There’s been a lot of backlash already and, in my opinion, the law is unlikely to pass if it contains these provisions. But assuming it does, California will join a growing number of states that are banning smokable hemp or hemp-derived vapes in one form or another.

Second, the FDA sent out another warning letter since the first post in this series was published, and in part made allegations concerning vape products as follows:

Furthermore, [the vape] product is particularly concerning to the agency because the ingredients and potential impurities in oral inhalation products may trigger laryngospasm and bronchospasm and may be toxic to the tissues in the upper or lower airways. Inhalation products that are intended to act locally in the respiratory system also may be absorbed and exert undesirable systemic effects, such as increased heart rate or elevated blood pressure.

These statements from the FDA seem to reflect a growing dislike of CBD vape products, and we’ve seen the FDA take issue with hemp vape products now a number of times in written letters despite not taking the same strong position against vapes that it has with, say, CBD-containing foods.

Finally, and likely most importantly for now, is the new PACT Act modifications. The PACT Act is a federal law (the Prevent All Cigarette Trafficking Act) that has been on the books for a long time and was recently modified to address vape products. Essentially, the PACT Act requires that persons who sell and ship cigarettes to undergo certain state/federal registrations and reporting, and imposes additional requirements on B2C sellers.

Amendments to the PACT Act that were tacked onto a December 2020 congressional spending bill modified the PACT Act to include electronic nicotine delivery systems (ENDS), which is a broadly defined term that essentially includes any electronic device capable of allowing a user to inhale a substance from that device, AND components, liquids, or parts for those devices. This is a breathtakingly broad requirement and brings a host of different CBD vape products and accessories within the purview of the PACT Act, requiring all sorts of different compliance measures.

But even more of an issue is the fact that businesses that could comply with the PACT Act may be effectively prevented from doing so. The USPS recently came out with proposed rules that clarify that ENDS cannot be mailed unless one of a small handful of narrow exceptions applies, and these exceptions generally require applications and other compliance. So even if businesses can comply with the PACT Act’s requirements, they may not be able to ship products anyways (and non-compliance with these rules can even lead to criminal penalties). To boot, leading private carriers have also apparently announced that they won’t ship vape products either.

The business opportunities for hemp CBD vape companies, and smokable hemp products generally, keep getting narrower and narrower. Stay tuned to the Canna Law Blog for more developments.