Imported Drug Tests Not Considered Drug Paraphernalia, CBP Says

A product line of drug tests falls outside the meaning of “drug paraphernalia” and can be imported into the U.S., CBP said in an Oct. 18 ruling. Kappa City Biotech, a French company that makes the tests, asked CBP to rule on whether its urine, saliva and “forensic” tests are prohibited from import as drug paraphernalia.

Based on past court decisions, consideration of goods as drug paraphernalia involves multiple factors, CBP said. Here, “our determination considers whether the subject merchandise is 'primarily intended for use,' in the manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance,” the agency said.

The company provided information about how to use the tests, showing “that these items have the legitimate use of deterring the use of drugs and ingestion of harmful additions to drugs,” CBP said. The company's marketing also doesn't display the tests “in a way that encourages the use of drugs or ingestion of drugs into the human body, nor can they be used to prepare drugs for such a purpose,” CBP said.

Based on the factors, CBP ruled that the “drug tests should not be considered drug paraphernalia because the primary intended use for the products are not ingestion of drugs into the human body, but rather for testing, an intended use not included in the statute,” it said. “This implies that the statute did not intend to place limitations on drug testing.” However, “Kappa City has indicated that these tests have not been approved by the [Food and Drug Administration] as medical devices or drug tests, but that its facilities are FDA registered,” CBP said. “Failure to obtain FDA approval for these devices may introduce a separate legal issue for Kappa City. Therefore, our office recommends Kappa City seek FDA approval.”