US Says It Found Emails Showing DEA's Involvement in Detention of Weight Loss Supplement

After oral argument, the U.S. asked the Court of International Trade to supplement its motion to dismiss in a case involving seized weight loss dietary supplements, saying that it had found emails from CBP “responsive to the Court’s questions" (UniChem Enterprises v. United States, CIT # 24-00033).

The U.S. was criticized repeatedly by the court in oral argument for failing to provide any contemporary documentary evidence whatsoever regarding the involvement of the Drug Enforcement Administration in CBP’s seizure of the supplements -- the issue upon which many of the legal questions in the case currently hinge (see 2409200048).

The government’s attorney noted during the argument that most of the communication between DEA and CBP during the investigation of the supplements would have occurred via phone calls, but claimed that there could be emails between the two agencies as well.

In response, Court of International Trade Judge Timothy Reif asked, “We’ve had eight or nine months of this case ongoing, and you’re still trying to find emails or other documentation to support the government’s position?”

Now, “after the Court expressed concern over the lack of contemporaneous documentation showing DEA’s involvement,” CBP reviewed its internal records and discovered email communications between the agencies regarding the investigation between Nov. 8, 2023, and Jan. 29, 2024, the U.S. said. These demonstrated “that CBP was detaining the merchandise at issue until DEA completed its investigation,” it said.

The U.S. also asked CIT to include another supplement responding to a supplemental submission by the case’s plaintiff, UniChem Enterprises. The plaintiff importer argued in its supplement that DEA wasn’t authorized to detain imported merchandise on its own and had to rely on CBP; the government said it wanted the opportunity to “explain why the authority to detain and admit is not the controlling analysis for the jurisdictional question here,” especially now the merchandise has gone from being detained to being seized.

UniChem is facing a jurisdictional challenge to its case raised by the government. CIT jurisdiction over this case requires CBP to have made a protestable decision regarding the merchandise in question. The U.S. claims that it was DEA, not CBP, that made the determination to detain UniChem’s entry, so, because CBP made no protestable decision, the case is in the wrong court and UniChem failed to exhaust its administrative remedies (see 2405100064).

In turn, UniChem argues that it had no idea DEA was even involved in the seizure, as none of CBP’s monthly detention notices to the importer ever mentioned the other agency. It said it still hadn’t been aware when it brought its case to court in January to have its entry released from a nearly yearlong detention, pointing out that, under statute, CBP may only detain entries for up to 60 days.

UniChem’s entry was seized by the government in September 2024 (see 2409190018).