Washington State Legalized Marijuana 'Paraphernalia,' Making It Legal to Import, Importer Argues

Legalization at the state level allows importer Keirton USA to “manufacture, possess, or distribute” marijuana but doesn't constitute a specific authorization to go against the "uniform Federal ban" on drug paraphernalia imports, DOJ said in a June 6 brief at the Court of International Trade (Keirton USA v. U.S. Customs and Border Protection, CIT #21-00452).

Keirton first shipped Twister Trimmers to the U.S. in 2012, when the product was seized on the basis that it was drug paraphernalia. Keirton later settled for $180,000. From 2012, no additional shipments of any Keirton parts were seized, but in May 2020 CBP resumed detention of more than $1 million in Keirton shipments, alleging that the merchandise was to be used for illegal purposes.

Keirton filed suit at the U.S. District Court for the Western District of Washington (see 2102250038), where a federal judge said that the proper jurisdictional home for the action was CIT (see 2104160035). The importer then filed suit at trade court, arguing that it had an exemption under drug paraphernalia federal law 21 U.S.C. § 863(a)(3) for goods legal at the state level (see 2201060059).

The exemption in question allows for imports of drug paraphernalia only by "persons authorized by local, state, or Federal law to manufacture, possess, or distribute such items" (21 U.S.C. § 863(f)(1)). The government argues that simply decriminalizing marijuana possession at the state level does not constitute a specific authorization for Keirton. Authorization, says the government motion, "must mean more than simply 'lawful' because Congress distinguished between the two ... and because drug-paraphernalia possession is already legal under Federal law." To qualify for the exemption, Keirton must be specifically authorized to "manufacture, possess, or distribute the imported marijuana paraphernalia at issue," it said.

The Controlled Substances Act has several examples of specific authorizations that require "formal approval like a prescription, registration, or license," the government said. Keirton's meaning of "authorize" ignores the purpose of the Controlled Substances Act, which was to outlaw the drug trade, except under narrow circumstances. Because Keirton has failed to meet that requirement, the government has asked the court to enter judgment for the U.S. and dismiss the case.