The U.S. Court of International Trade (“CIT”) issued a recent opinion that indicates the import or export of “drug paraphernalia” to or from states where cannabis is legal represents an exception to the federal ban imposed by the Controlled Substances Act (“CSA”). Under 21 U.S.C. § 863(d), “drug paraphernalia” is broadly defined as:
any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
We’ve written about why this expansive definition may make decisions to import not worth the risk here.
Plaintiff Eteros had attempted to import trimming equipment (the “Mobius M108S Trimmer” to be exact) through the Port of Blaine, Washington in April 2021. When the equipment was presented to Customs and Border Protection (“CBP”) for examination, and CBP issued a Notice of Detention to Eteros. Eteros timely responded to the Notice, and indicated that while the equipment was intended to be used with hemp, it also was capable of use with marijuana. It also made two arguments:
- That the equipment didn’t constitute drug paraphernalia at all because it was going to be used for hemp, not marijuana; and
- That even if it qualified as drug paraphernalia, it should be exempted from the import prohibition because marijuana’s status as legal under Washington State law.
The following month, CBP informed Eteros it was nevertheless going to exclude the equipment because it constituted “drug paraphernalia.” Eteros filed a lawsuit to challenge CBP’s decision.
The opinion is as technical as it can get, delving into the history of Washington’s now-changed legislation relating to marijuana and applying rules of statutory interpretation. Ultimately, the CIT found that the exemption does encompass paraphernalia that is authorized under state law (“[t]his section shall not apply to[,] any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items.”) Therefore, the CBP was not justified in excluding Eteros’ equipment.
As the first opinion of its kind, this is potentially a really great development (and hopefully, trend) for the cannabis industry– especially as the industry struggles with rising costs domestically. But it’s important to remember that a challenge by the U.S. government is probably coming, and this is not something to cheer for as new law just yet.
We’ll be sure to keep an eye on future developments that hopefully continue to trend in favor of the cannabis industry and international import and export.