On December 22, 2020, we blogged about the omnibus 2021 Consolidated Appropriations Act passed by Congress, which included 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, thereby subjecting remote sales of these products to various requirements and restrictions. Another important feature of this new law is that the defined term “ENDS” in this new legislation actually covers more than electronic nicotine delivery systems.
The Preventing Online Sales of E-Cigarettes to Children Act includes in the definition of an “electronic nicotine delivery system”: “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device” (emphasis added). While it remains to be seen how the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the states will enforce this provision, it is notable that this definition of ENDS is not on its face bracketed by the Food and Drug Administration’s (FDA) definition of a tobacco product (which in relevant part is any product made or derived from tobacco that is intended for human consumption). Thus, remote sellers of any product intended to be vaped (other than products approved by the FDA for tobacco cessation or therapeutic purposes) should be factoring in this new legislation into their compliance efforts.