Importer Did Not Clear State Exemption When Importing Drug Paraphernalia, DOJ Tells CIT

Importer Eteros Technologies USA could not have imported its motor frame assemblies -- a product deemed "drug paraphernalia" -- since there was no law specifically authorizing Eteros to possess or distribute the drug paraphernalia, the Department of Justice argued in a Nov. 5 brief to the Court of International Trade. Countering Eteros' position that it was allowed to import the drug paraphernalia since it was allowed under state law, DOJ said that Washington state law merely decriminalized the possession of drug paraphernalia but did not explicitly allow its importation (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). Eteros filed suit to contest the exclusion.

The importer argued that this exclusion violates Congress' intent and the plain and unambiguous letter of the law (see 2109140036). The law dictating that drug paraphernalia should be banned from entry very clearly outlined an exception for state and local authorities, Eteros said. This exception, outlined in 21 USC 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."

In its reply brief, DOJ then pushed back against this notion, holding that Eteros does not qualify for the state exemption since "Washington state law does not authorize Eteros to manufacture, possess, or distribute drug paraphernalia." The importer said that the state law reforming Washington's marijuana laws exempts it from the ban on the importation of drug paraphernalia. "Had Congress intended to permit the importation of drug paraphernalia simply where a state or locality has decriminalized the manufacture, use, or possession of such items, it would have said so," DOJ countered. "Instead, Congress explicitly requires that persons be specifically authorized by Federal, state or local law."

What Washington's law does, however, is merely decriminalize the possession of drug paraphernalia by removing the threat of prosecution for the sale or possession of marijuana-related drug paraphernalia. This is different than a granted exception to the ban on importing drug paraphernalia, the brief said. "Eteros’s broad interpretation of subsection 863(f)(1) would exempt from this federal prohibition all persons who import through a U.S. Port of Entry that is located in a State that has merely decriminalized the manufacture, possession, or distribution of drug paraphernalia under State law," DOJ said. "Such a reading of the statute essentially recreates the very loophole that Congress intended to close and runs contrary to Congress’s intent to create national uniformity with regard to drug paraphernalia."