What if I receive a Vape PACT Act Cease and Desist Letter?

[Anonymized Letter]

[Omitted Law Firm Name and Address]

December 27, 2023

[Recipient’s Name and Address Omitted]

Re: Sale of Flavored Electronic Nicotine Delivery System Products—Cease and Desist

Dear Sir or Madam:

We are legal counsel to [Tobacco Company’s Vape Division AKA ‘TCVD]. It was brought to our attention that [Recipient’s Name] is selling and/or causing the sale of flavored tobacco products in violation of the federal Prevent All Cigarette Trafficking Act (“PACT Act”).

The PACT Act requires delivery sellers of electronic nicotine delivery systems (“ENDS”) to comply with certain shipping requirements and limitations. Delivery sellers must comply with certain package labeling requirements. See 15 U.S.C. § 376a(b)(1) (“Required PACT Act Statement”). Delivery sellers must use a method of shipping that requires: (1) the purchaser (or an adult over the minimum age required for the purchase of ENDS products in the place of delivery) to sign to accept delivery; and (2) the person who signs to accept delivery to provide proof, in the form of a valid, government-issued photo identification, that the person is over the minimum age required for the purchase of ENDS products in the place of delivery. See 15 U.S.C. § 376a(b)(4)(A)(ii). Further, delivery sellers cannot accept a delivery sale order from a person without first obtaining the person’s full name, birth date, and residential address, and then verifying that information through a commercially available database. See 15 U.S.C. § 376a(b)(4)(A)(iii).

The PACT Act also generally prohibits mailing ENDS through the United States Postal Service (“USPS”). See 18 U.S.C. § 1716E(a)(1). Moreover, the PACT Act requires delivery sellers to ensure that, before selling or delivering any ENDS product to any consumer or tendering ENDS products to a delivery service, any applicable state excise taxes must be paid to the state. See 15 U.S.C. § 376a(d)(1). Delivery sellers must comply with all state and local laws generally applicable to the sale of cigarettes as if the delivery sale occurred entirely within the specific state, including laws regarding licensing requirements, restrictions on sales to minors, and excise taxes. See 15 U.S.C. § 376a(d)(1).

It was brought to our attention that your site sells, transfers, ships for profit, or causes the sale, transfer, or shipment for profit of ENDS to consumers in the United States. It was also brought to our attention that in doing so, your site violates the PACT. Act in that you utilize the USPS to ship ENDS products without meeting any of the narrow exceptions that would permit such a shipment; fail to label packages for shipment consistent with that federal law; and fail to use a method of shipping that verifies, through government-issued identification, that the purchaser is of age for such products. 

[TCVD] therefore demands that you immediately cease and desist from selling and/or causing the sale of ENDS products in violation of the PACT Act. If you continue the conduct described above, [TCVD] reserves the rights to pursue all available legal remedies, including but not limited to filing a lawsuit in federal court against you for violating the PACT Act. 

To avoid the potential of a lawsuit in federal court, please provide your written assurance by 5:00 p.m., January 5, 2024, that you have complied with the demands set forth in this letter and ceased all sales of ENDS in violation of the PACT Act. In the absence of a timely response, we have been authorized to take all steps necessary to preserve and protect the rights of [TCVD] without further notice to you. 

This letter is not a complete statement of [TCVD]’ s rights in connection with this matter, and nothing contained herein constitutes an express or implied waiver of any rights, remedies, or defenses of [TCVD] in connection with this matter, all of which are expressly reserved. 

Very truly yours,

[End of Anonymized Letter]