'Drug Paraphernalia' Allowed to Be Imported in States Where It's Legal, Importer Tells CIT

A clear reading of the law allows for an importer to bring in goods deemed "drug paraphernalia" federally if they are legal at the state level, Washington-based importer Keirton USA told the Court of International Trade in its Jan. 5 motion for judgment. Seeking to get back its imports of cannabis processors from CBP, Keirton told the trade court that the exemption allowing for the import of drug paraphernalia where it is legal at the state level is "plain and unambiguous and must be applied accordingly" (Keirton USA, Inc. v. U.S. Customs and Border Protection, CIT #21-00452).

The importer's troubles with CBP date back to 2012, when it first had a shipment of its signature product, Twister Trimmers, seized on the basis that it was "drug paraphernalia." The matter was resolved via a nonconfidential settlement, and another government agency sold a part of the seized machines through an online auction in Florida, Keirton's lawyer said in the complaint. From 2012 to 2019, no additional shipments of any Keirton parts were seized until May 2020. In the months that followed, CBP detained more than $1 million in Keirton shipments, alleging again that the merchandise was to be used for illegal purposes.

Keirton originally took its case to the U.S. District Court for the Western District of Washington, where a federal judge said that the proper jurisdictional home for the action was CIT (see 2104160035). The importer then filed suit at CIT (see 2108190066).

The crux of Keirton's case rests on a purported exemption in federal law for goods deemed to be drug paraphernalia that are legal at the state level. "Congressional intent is clear: local and State law should control when in conflict with Federal law with regards to drug paraphernalia," the brief said. "... as Washington State has legalized marijuana, the State law authority governs that the Subject Merchandise is admissible as 'drug paraphernalia.' As Plaintiff has met all the required elements in the authorization exemption, CBP must apply the exemption to the Subject Merchandise by allowing the Plaintiff to import and all other components of its Twister Trimmer, which are all legal under Washington State law."

The importer further argued that CBP's position disregards congressional intent and conflicts with the reading of the relevant statute. "The law does not give CBP the discretion to refuse to consider State and local laws and, in fact, Congress," the brief said. "Put another way, CBP has no authority to ignore or disregard 21 U.S.C. § 863(f)(1). If CBP’s interpretation of its own authority is correct, the exemptions Congress wrote into the drug paraphernalia law are wholly superfluous... ."