State Legalization Laws Don't Exempt Marijuana Paraphernalia From Federal Import Ban, DOJ Says

State marijuana legalization laws do not create an exemption to the federal ban on importation of drug paraphernalia, the Department of Justice said in a Jan. 31 filing at the Court of International Trade. Arguing against an importer's motion for judgment in the case, as well as its own cross-motion for judgment in November (see 2111100047), DOJ says an exemption from the federal ban at 21 USC 863 for any "person authorized by local, state, or federal law to manufacture, possess, or distribute such item" is not triggered by state laws that legalize marijuana across the board (Eteros Technologies USA v. United States, CIT #21-00287).

The Washington state law at issue merely decriminalizes the sale and delivery of marijuana rather than creating specific authorizations required to count as an exemption from federal import law, DOJ said. "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." Instead, the law refers to "persons" specifically authorized by law, something the Washington law does not do.

The case, brought by importer Eteros Technologies of Washington, follows a CBP-issued Notice of Detention and seizure of its imports in April. The items in dispute are motor frame assemblies intended to be combined into agricultural trimmers for the production of hemp products. Issues for Eteros began following a series of information requests where CBP inquired whether the subject merchandise will “be used ... to manufacture, produce, or process a product that ... is identified under the Controlled Substances Act." Following responses by Eteros, CBP subsequently categorized the items as "drug paraphernalia" and refused entry in May (see 2106140038).

Eteros petitions were denied before the importer brought the case to CIT via a complaint in June. Eteros admits that it is "engaged in the importation, manufacture, and distribution of agricultural machinery for cannabis and hemp" and that the items are drug paraphernalia, but argues that it has an exemption as a "person authorized by local, State, or Federal law to manufacture, possess, or distribute such items," citing its "Industrial Hemp Handler Certificate” from Nevada (see 2109140036). DOJ argues against the exemption despite the legalization of hemp production under the Agricultural Improvement Act of 2018 because, regardless of intent, the machinery creates two end products, one of which is a controlled substance.

Eteros says that its initial target market was licensed Canadian cannabis producers and that a conscious effort was made to move into the U.S. market following the 2018 Act. The company also argues that "any plant material that has a dense flower structure with a protruding leaf could be used with the device" and that its user manual directs customers to use the equipment only on legal plant matter. If Judge Gary Katzmann grants DOJ's motion, the case will be dismissed.