The marijuana industry is rapidly growing, with more and more states legalizing its use for medical and/or recreational purposes. With this growth, there is an increase in the importation of products such as grinders, storage containers, rolling paper, pipes, and vape pens, both for business and personal use. More businesses are asking why there is an issue importing such items when they only intend to sell and distribute within the many states where marijuana is legal for medical or recreational use and have established their regulations for marijuana-related products. It is still essential to remember, while many states have legalized marijuana for medical or recreational use, marijuana remains illegal under federal law.
This blog will address recent Court of International Trade (CIT) cases on this very topic and will be a part 2 to our previous blog covering U.S. Customs and Border Protection (CBP) seizures of drug paraphernalia.
CBP Authority
CBP has the power to seize “drug paraphernalia” products. This does not only cover importations of products for commercial use, but also items for personal use with individuals traveling internationally seeking entry into the United States. CBP’s website section: Know Before You Go – Prohibited and Restricted Items encourages individuals to contact CBP prior to traveling and make sure that prohibited or restricted items, such as drug paraphernalia, are not brought into the country, as they are not only subject to seizure pursuant to 19 U.S.C. 1595a(c), but those individuals bringing in the items are subject to a monetary penalty pursuant to 19 U.S.C. 1595a(b).
Latest CIT Decisions Regarding Marijuana-Related Accessories
There are two decisions by the Court of International Trade that have significant implications for importers of marijuana-related paraphernalia. The first case, Eteros Technologies v. United States, No. 21-00287, concerns the interplay between federal and state laws governing marijuana-related drug paraphernalia. Pursuant to 21 U.S.C. § 863, it is illegal under federal law to import, export, or sell drug paraphernalia, which includes items used to manufacture, plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal controlled substances.
In Eteros, the court granted the plaintiff’s motion for judgment on the pleadings and denied the government’s cross-motion, finding that the plaintiff’s products (which included vaporizers, grinders, and rolling papers) were not drug paraphernalia under federal law. The court noted that while the plaintiff’s products could potentially be used to consume marijuana, they were also commonly used for other legal substances, such as tobacco. Moreover, the court found that the plaintiff’s products were marketed and sold in compliance with state laws governing marijuana-related products, which suggested that the products were intended for lawful use.
In Keirton U.S.A., Inc. v. United States, No. 21-00452, the court discussed exclusion from entry into the United States of “parts and components” used to manufacture a product called the “Twister Trimmer,” which is primarily used to process marijuana plants. The plaintiff, Keirton, challenged the denial of its protest of the exclusion by CBP. The court’s jurisdiction was pursuant to 28 U.S.C. § 1581(a), which grants the exclusive court jurisdiction over actions arising under federal customs law. The standard of review was de novo based on the record developed before the court.
In Keirton, the court granted the plaintiff’s motion for judgment on the pleadings and denied the government’s cross-motion, finding that the exclusion of the plaintiff’s parts and components was not supported by substantial evidence. The court noted that CBP had relied on a letter from the Drug Enforcement Administration (DEA) that stated that the plaintiff’s products were “designed and marketed for use with marijuana.” However, the court found that the DEA’s letter did not provide any specific evidence that the plaintiff’s products were intended to be used with illegal drugs, and that the plaintiff had presented evidence that its products were used in the legal cultivation of hemp, which is a non-psychoactive strain of the cannabis plant.
Conclusion
The Esteros and Keirton cases highlight the complex legal landscape surrounding marijuana-related products, and the importance of careful compliance with federal and state laws governing these products.
Importers of marijuana-related paraphernalia should:
- consult with competent customs counsel prior to importation and at the pre-compliance stage to carefully review and comply with both federal and state laws governing their products, including any licensing or regulatory requirements, ensure that their products comply with applicable laws and regulations and consider taking proactive measures to mitigate the risk of customs seizures like requesting a CBP Binding Ruling prior to importation.
- be aware of the potential risks of customs seizures at the time of importation.
- be aware of the potential for CBP to rely on guidance, policy or letters from other federal agencies, such as the DEA, in making their determinations.
If you have any questions about the importation of merchandise into the U.S., contact info@diaztradelaw.com.
