Congress Passes Legislation Sweeping ENDS into PACT Act

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On December 21, 2020, as part of the omnibus 2021 Consolidated Appropriations Act, Congress passed legislation extending the applicability of the Prevent All Cigarette Trafficking (“PACT”) Act to electronic nicotine delivery systems or “ENDS.”  The legislation, called the ‘‘Preventing Online Sales of E-Cigarettes to Children Act,’’ sweeps ENDS into the PACT Act by amending the PACT Act’s definition of a cigarette to include electronic nicotine delivery systems.

The PACT Act provides that a “delivery seller” may not sell or deliver to any consumer, or tender to any common carrier or other delivery service, any cigarettes or smokeless tobacco pursuant to a delivery sale unless certain requirements are met in advance of the sale, delivery, or tender. A “delivery sale” is any sale of cigarettes or smokeless tobacco to a consumer if: (a) the consumer submits the order for sale by means of a telephone or other method of voice transmission, the mails, or the Internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or (b) the cigarettes or smokeless tobacco are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is otherwise not in the physical presence of the buyer when the buyer obtains possession of the cigarettes or smokeless tobacco.

The Act imposes numerous requirements on delivery sellers, including prohibiting the shipment and transport of the product through U.S. mail, prohibiting the online sale of the product to anyone under the legal sales age, labeling packages as containing tobacco, paying state taxes, and complying with state laws (including obtaining appropriate licenses) as if the sale occurred within the state.

Delivery sellers of nicotine vapor products will have 90 days from the enactment of this legislation to comply.  As of the time of this blogpost, the legislation had been sent to the President for signature but had not yet been signed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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