CBP Drug Paraphernalia Seizure Presents Key Legal Question, Importer Argues

Eteros Technologies USA's challenge of CBP's seizure of its motor frame assemblies seeks to answer a “critical legal question" on the interaction of state and federal marijuana laws, the company said in a motion for judgment at the Court of International Trade. CBP seized the assemblies, finding them to meet the federal definition of “drug paraphernalia.” This move set the lines of the case over whether CBP can ignore the authorization exemption for drug paraphernalia where those goods are allowed to be imported and sold in a given state, Eteros said (Eteros Technologies USA, Inc. v. United States, CIT #21-00287).

Eteros imported the motor frame assemblies in April through the Port of Blaine, Washington, describing the goods as being used to create the Mobius 108S Trimmer, a marijuana and plant harvesting unit. CBP excluded the goods from entry, finding them to be drug paraphernalia (see 2106140038).

But this violates Congress' intent and the plain and unambiguous letter of the law, Eteros said. The law dictating that drug paraphernalia should be banned from entry very clearly outlined an exception for state and local authorities, it said. This exception, outlined in 21 U.S.C. Section 863(f)(1), says that the exclusions shall not apply to “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items," Eteros said.

“Congress’ authorization exemption cannot be written out of the law and CBP has no authority to reject Congress’ intent that States may, as they deem fit, authorize the possession, distribution or manufacture of certain drug paraphernalia,” the motion said. “The law does not give CBP discretion to refuse to consider state and local laws and authorizations granted thereby. Stated another way, CBP has no authority to ignore or disregard 21 U.S.C. s863(f)(1). If CBP’s interpretation of its own authority is correct, the exemptions Congress wrote into the drug paraphernalia law are wholly superfluous.”

Eteros also cited the 10th Amendment in its argument, which states that “all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the Constitution does not delegate the regulation of drug paraphernalia to the federal government, nor bar state governments from doing so, CBP cannot skirt this delegation of authority as laid out by the 10th Amendment, Eteros said: “The federal Congress itself has required recognition and application of state drug paraphernalia authorization regimes,” further ensconcing a state's right to permit the import of drug paraphernalia as defined federally.

Eteros said the authorization exemption makes it clear that CBP cannot exclude drug paraphernalia when state law permits the possession or distribution of the subject good. “In passing the Mail Order Drug Paraphernalia Control Act, Congress was clear that the federal government would abstain from enforcing laws relating to 'drug paraphernalia' when that conduct is authorized by inter alia State laws,” the motion said.