Though importing drug paraphernalia is against the law underneath the federal Managed Substances Act (CSA), the USA Court docket of Worldwide Commerce (CIT) not too long ago held that hashish paraphernalia could possibly be lawfully imported into Washington state.
The CIT reached this determination when analyzing a case during which Customs and Border Safety (CBP) excluded from entry on the Port of Blaine, Washington, cannabis-trimming gear on the grounds that the machine constituted drug paraphernalia prohibited underneath the CSA.
In assessing the interaction between federal and state legal guidelines governing cannabis-related drug paraphernalia, the CIT concluded that the gear may lawfully enter the state as a result of Washington legislation expressly offers for exemptions to the federal prohibition of importing drug paraphernalia.
Under is a abstract of the primary components thought-about by the CIT in assessing this dispute, which introduced a matter of first impression.
Authorized Background
- Federal Prohibition On Drug Paraphernalia
Pursuant to 21 U.S.C. § 863(a), it’s “illegal for any individual (1) to promote or provide on the market drug paraphernalia; (2) to make use of the mails or another facility of interstate commerce to move drug paraphernalia; or (3) to import or export drug paraphernalia.” (Emphasis added.)
“Drug paraphernalia” is broadly outlined as “any gear, product, or materials of any sort which is primarily supposed or designed to be used in manufacturing, compounding, changing, concealing, producing, processing, getting ready, injecting, ingesting, inhaling, or in any other case introducing into the human physique a managed substance.” 21 U.S.C. § 863(d) — When figuring out whether or not an merchandise falls underneath this definition, federal brokers take into account eight components listed underneath 21 U.S.C. § 863(e).
Due to this fact, as a federal company answerable for imposing federal importation and exportation legal guidelines and rules, CBP is tasked with denying and seizing drug paraphernalia.
Nonetheless, 21 U.S.C. § 863(f) comprises two exemptions to this prohibition, certainly one of which applies to “an individual [ ] licensed by native, State, or Federal legislation to fabricate, possess, or distribute such objects[.]” (Emphasis added.)
- Washington State Exemption To Federal Prohibition
In 2012, the state of Washington legalized the grownup leisure use of marijuana and amended its prohibition on drug paraphernalia to expressly exclude marijuana from the definition of “drug paraphernalia.” See Initiative 502 to the Legislature, 2013 Wash. Sess. Legal guidelines ch. 3 (codified as amended at RCW 69.50.101-710).
Factual Background
Eteros Applied sciences USA, Inc. (Eteros) tried to import “Mobius M108S Trimmer,” gear designed to separate the leaf from the flower of hashish and/or different plant materials, via the port of Blaine, Washington.
Upon its arrival on the port of entry, the gear was seized by CBP because the federal company questioned its supposed use and whether or not the topic merchandise would “be used at any level, in any manner, to fabricate, produce, or course of a product that has a [THC] focus over 0.3 p.c.” — In different phrases, CBP questioned whether or not the gear met the definition of “drug paraphernalia” underneath the CSA; and thereby, whether or not it contravened the import prohibition.
In its response to CBP’s Request for Data, Eteros defined that the gear didn’t qualify as “drug paraphernalia” as a result of the first supposed use of the Mobius M108S Trimmer was with hemp, not marijuana, and even when the Mobius M108S Trimmer certified as “drug paraphernalia” underneath § 863(d), the exemption established in § 863(f)(1) rendered § 863(a)(3)’s import prohibition inapplicable in gentle of the state of Washington’s legalization of marijuana and marijuana-related paraphernalia.
CBP rejected Eteros’s argument, so, in response, Eteros initiated this lawsuit.
The Court docket’s Reasoning
The CIT’s evaluation centered on whether or not the state of Washington’s repeal of sure prohibitions relating to marijuana-related drug paraphernalia “licensed” the importation of the Mobius M108S Trimmer.
Particularly, the court docket carefully analyzed the CSA and Washington state’s equal, but additionally thought-about and utilized Murphy v. NCAA, a Supreme Court docket case the place the best court docket held that New Jersey’s sport-betting legislation “licensed” sport playing regardless of conflicting federal legislation, and concluded that Washington legislation licensed the importation of Eteros’s trimmer and deemed CBP’s seizure unjustified.
Implications
This case is a significant win for the hashish trade — because of Richard O’Neill from Neville Peterson LLP, who brilliantly argued this case — in that it means that the importation of hashish paraphernalia is allowed as long as its entry happens in a state the place hashish is lawful and exempt from the state’s CSA.
If unchallenged by the U.S. authorities (which appears unlikely), this case would set a nationwide precedent that might open up the importation (and certain the exportation) of presently federally prohibited drug paraphernalia. That is an thrilling prospect for hashish stakeholders, who for too lengthy now have been confronted with unfair and onerous challenges in importing hashish paraphernalia.
Nathalie Bougenies focuses her follow on well being and wellness, along with company transactions and regulatory compliance. For the previous 4 years, Nathalie has helped shoppers navigate the complicated regulatory panorama of hemp merchandise supposed for human consumption and advises home and worldwide shoppers on the sale, distribution, advertising, labeling, and importation of those merchandise. Nathalie incessantly speaks on these points and has made nationwide media appearances, together with on NPR’s “Market.” She additionally authors a weekly column for “Above the Legislation” that options content material on hashish coverage and regulation. For 4 consecutive years, Nathalie has been named Rising Star by Tremendous Legal professionals.