Marijuana Paraphernalia Illegal for Import Regardless of Individual State Laws

Marijuana vaporizers are prohibited from import into the U.S. regardless of the state laws on drug paraphernalia where such products are destined, CBP said in a March 24 ruling (here). Lawyers from Goodwin Proctor and Mowry & Grimson sought CBP's ruling on the vaporizer, called the CannaCloud, on behalf of CannaKorp. The "CannaCloud will be manufactured in China and exported from Hong Kong to the Port of Los Angeles, California, and from there via in-bond transportation by truck to the Port of Denver, Colorado," CBP said.

After import, "the merchandise is intended to be sold, via retailers, in states which have legalized marijuana use; particularly, Colorado," CBP said. Colorado's constitution "provides that it shall not be an offense under state or local law to possess, use, display, purchase, or transport marijuana accessories or to sell marijuana accessories to an individual who is 21 years old or older." While CannaKorp conceded that the vaporizers are "drug paraphernalia," the company argued that an exemption to the federal prohibition on imports of drug paraphernalia would apply. That law exempts "any person authorized by local, State or Federal law to manufacture, possess, or distribute such items;" or "any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory."

There's some question as to whether the phrase "such items" in the exemptions refers to drug paraphernalia, CBP said. The choice by Congress to refer to "items" and not drug paraphernalia "reflects an intent" to exclude "items that become 'drug paraphernalia' based upon their design or use," CBP said. Lawmakers could have specified "drug paraphernalia" within the exemptions to "allow states to exempt themselves," the agency said. Instead, "Congress sought to carve out an exemption for possession of legitimate items for lawful purposes to protect individuals possessing those items in a lawful context from a potential determination that the items are, instead, drug paraphernalia," CBP said.

CannaKorp's argument also goes against the "doctrine of Federal supremacy," the agency said. "Interpreting the exemption to allow states essentially to exempt their residents from the Federal prohibitions on the importation of drug paraphernalia would lead to absurd results," CBP said. The imported paraphernalia could also be easily transported into other states where such goods remain illegal, the agency said. Such an interpretation "would deprive other states of the full protections afforded by Federal law." Colorado also didn't seek to "nullify" federal law through its constitutional provisions, the agency said.

It's clear that the federal law doesn't provide "an importer a means to bring drug paraphernalia into this country for sale in a state where drug paraphernalia is legal under state law," CBP said. "Such state laws should not be read to eviscerate a comprehensive Federal enforcement regime that targets drug paraphernalia." The agency also declined to address a classification issue in the ruling request as a result of CBP's finding.