US Court of International Trade Rules Importation of Cannabis Accessories Legal
Although the importation of drug paraphernalia is illegal under the federal Controlled Substances Act (CSA), the United States Court of International Trade (ICT) recently ruled that cannabis paraphernalia can be legally imported into Washington State.
The CIT made this decision when analyzing a Case in which Customs and Border Protection (CBP) barred entry into the Port of Blaine, Washington, of cannabis cutting equipment on the grounds that the machine constituted drug paraphernalia prohibited under of the CSA.
Assessing the interplay between federal and state laws governing cannabis-related drug paraphernalia, CIT concluded that the equipment could legally enter the state because Washington law expressly provides exemptions to the federal ban on importing drug paraphernalia.
Below is a summary of the main factors considered by the CIT in the assessment of this dispute, which presented a first impression.
- Federal ban on drug paraphernalia
In accordance with 21 USC § 863(a), it is “unlawful for anyone (1) to sell or offer for sale drug paraphernalia; (2) using the couriers or any other interstate commerce facility to transport drug paraphernalia; or (3) import or export drug paraphernalia.” (Emphasis added.)
“Drug consumption device” is broadly defined as “any equipment, product or material of any kind which is primarily intended or designed for use in the manufacture, compounding, conversion, concealment, production, transformation , preparation, injection, ingestion, inhalation or otherwise introduction into the human body of a controlled substance. 21 USC § 863(d) — In determining whether an item falls under this definition, federal officials consider eight factors listed under 21 USC § 863(e).
Therefore, as the federal agency responsible for enforcing federal import and export laws and regulations, CBP is responsible for denying and seizing drug paraphernalia.
However, 21 USC § 863(f) contains two exemptions to this prohibition, one of which applies to “a person [ ] authorized by the local, Stateor federal law to make, possess or distribute such items[.](Emphasis added.)
- Washington State Exemption from Federal Prohibition
In 2012, Washington State legalized the recreational use of marijuana by adults and amended its drug paraphernalia ban to specifically exclude marijuana from the definition of “drug paraphernalia.” See Initiative 502 in the Legislature, 2013 Wash. Sess. Lois c. 3 (codified as amended in RCW 69.50.101-710).
Eteros Technologies USA, Inc. (Eteros) attempted to import “Mobius M108S Trimmer”, equipment designed to separate cannabis leaf from flower and/or other plant material, through the port of Blaine, Washington.
Upon arrival at the port of entry, the equipment was seized by CBP as the federal agency questioned its intended use and whether the merchandise in question would be “used at any time, in any manner, to make, produce or process a product that has a [THC] concentration greater than 0.3 percent. — In other words, CBP considered whether the equipment met the definition of “drug paraphernalia” under the CSA; and therefore whether it violated the import ban.
In its response to CBP’s request for information, Eteros explained that the equipment did not qualify as a “drug paraphernalia” because the primary intended use of the Mobius M108S Trimmer was with hemp, not marijuana, and even if the Mobius M108S Trimmer was called a “drug”. accessories” under section 863(d), the exemption established in section 863(f)(1) rendered the import prohibition of section 863(a)(3) inapplicable to the light of Washington State’s legalization of marijuana and marijuana-related paraphernalia.
CBP rejected Eteros’ argument, so in response, Eteros filed this lawsuit.
The reasoning of the Court
The CIT’s analysis focused on whether Washington State’s repeal of certain prohibitions on marijuana paraphernalia “allowed” the importation of the Mobius M108S Trimmer.
Specifically, the court closely analyzed the CSA and the Washington state equivalent, but also considered and applied Murphy vs. NCAAa Supreme Court case in which the highest court ruled that New Jersey’s sports betting law “allowed” sports betting despite conflicting federal law, and found that Washington law allowed the importation of Eteros mower and deemed the CBP seizure unjustified.
This case is a major victory for the cannabis industry – thanks to Richard O’Neill of Neville Peterson LLPwho argued this case brilliantly – in that it suggests that the importation of cannabis paraphernalia is permitted as long as its entry takes place in a state where cannabis is legal and exempt from the state CSA.
If unchallenged by the U.S. government (which seems unlikely), this case would set a national precedent that would open up the import (and likely export) of drug paraphernalia currently prohibited by the federal government. . This is an exciting prospect for cannabis players, who for far too long have faced unfair and onerous challenges in importing cannabis accessories.
Nathalie Bougenies focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. Over the past four years, Nathalie has helped her clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises national and international clients on sales, distribution, marketing, labeling and import of these products. Nathalie speaks frequently on these issues and has made appearances in national media, including NPR’s “Marketplace.” She is also the author of a weekly column for “Above the Law” which features content on cannabis policy and regulation. For four consecutive years, Nathalie has been named Rising Star by Super Lawyers.