DEA, CBP Can Both Detain Entries Suspected of Containing Controlled Substances, US Says

An importer challenging the detention of its shipment of dietary supplements failed to make any legal arguments and instead questioned “the veracity of the Government’s statements regarding [the Drug Enforcement Administration's] role with respect to the merchandise at issue,” DOJ said May 9 in reply to an importer’s opposition to its motion to dismiss the case (see 2404090029) (UniChem Enterprises v. U.S., CIT # 24-00033).

The case involves importer UniChem Enterprises’ sole entry of 7-keto dehydroepiandrosterone, which was intercepted by DEA in November due to concerns it contained anabolic steroids, a controlled substance. UniChem says the product is a commonly used dietary supplement. It argues CBP has detained the entry for too long without legal authority.

CBP “must engage in some sort of decision-making process in order for there to be a protestable decision,” the government said. But CBP has not made any moves because it is waiting for DEA’s admissibility decision, it said. And the statute governing administrative protests, it said, doesn't apply for merchandise for which an admissibility decision is being made by an agency other than CBP.

UniChem argues the entry was excluded by law, but that isn't true, DOJ said.

The importer is also wrong that such decisions are by law supposed to fall to CBP, not DEA, the U.S. said. It said both agencies are authorized to seize illegally imported controlled substances, so DEA is also “vested” with the power to rule on UniChem’s entry.

Because DEA is in charge of this matter, CBP’s notification requirements don’t apply, it said. So UniChem’s complaint about the content of CBP’s detention notices, issued every month from November to February, “is not determinative,” it said.

Finally, the U.S. pushed back on UniChem’s accusation that there is “no evidence” DEA hadn’t been involved initially.

UniChem’s counsel’s "direct communication with DEA regarding the specific entry at issue prior to commencing this action reveal that counsel knew about DEA’s involvement,” it said.