Lack of State Criminality Doesn't Mean Drug Paraphernalia Can Be Imported, DOJ Says

Washington-based importer Keirton USA isn't permitted to import drug paraphernalia since Washington state law doesn't expressly authorize the possession of such items, the U.S. told the Court of International Trade in a March 28 cross-motion for judgment. If the state's current laws did authorize possession of drug paraphernalia, then the mere absence of criminal liability -- the situation in Washington -- would consume the whole statute federally outlawing possession of drug paraphernalia, DOJ said (Keirton USA, Inc. v. United States, CIT #21-00452).

The facts of Keirton's case date back to 2012, when the importer first had a shipment of its signature product, Twister Trimmer, 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 at CIT. 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 filed suit at 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. The crux of Keirton's case rests on a purported exemption in federal law, exemption (f)(1), for goods deemed to be drug paraphernalia that are legal at the state level (see 2201060059).

The only problem is that nothing in Washington state law permits an individual or entity to possess drug paraphernalia, the U.S. argued. Keirton posits that it is exempt from the federal law banning the possession of paraphernalia since Washington state law does not outlaw the possession of such items. However, the U.S. now says that this exemption is not satisfied since the relevant state law does not expressly authorize possession.

"Since the (f)(1) exemption contemplates authorization under Federal law as well, taking Keirton’s argument to its logical conclusion would mean that the mere absence of Federal criminal liability for the possession of drug paraphernalia would constitute authorization for all," the brief said. "Under this interpretation, everyone would be authorized by Federal law to possess drug paraphernalia and accordingly exempt from section 863 because Federal law does not criminalize drug-paraphernalia possession."

"A hypothetical local law that purports to authorize all persons in the United States to possess drug paraphernalia would, under Keirton’s understanding, allow the subsection (f)(1) exemption to swallow the entirety of section 863," the federal law banning drug paraphernalia.