Recent CIT Opinions Strengthen Cannabis Importers' Legal Argument, Lawyer Says
Cannabis and cannabis accessory importers now have a "strong legal argument with potentially broad applications to challenge CBP's seizures" of marijuana paraphernalia in light of two recent Court of International Trade decisions, Harris Bricken lawyer Adams Lee said in a Dec. 16 blog post. Both cases involved the question of whether an importer could enter marijuana-related drug paraphernalia into Washington state, given that marijuana was made legal at the state level but remained illegal federally. Lee said that given how the opinions were structured, a state law repealing a past prohibition on such products "could be enough of an 'authorization' by the state law to block the federal prohibition on importing drug paraphernalia."
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In September, the trade court made its decision in Eteros v. U.S., finding that the U.S. cannot seize goods federally deemed to be drug paraphernalia but whose delivery, possession and manufacturer were made legal at the state level (see 2209210034). The court noted an exemption under the Controlled Substances Act that says that the federal ban on the sale, distribution or import of drug paraphernalia does not apply to anyone authorized by local, state or federal law to manufacture, possess or distribute the goods. CIT then looked to whether Washington state made such an authorization.
The court held that Washington state's law, which repealed past restrictions on marijuana-related drug paraphernalia, constituted an authorization so that the goods could be imported. The trade court doubled down on its position in its ruling in Kierton v. U.S. (see 2210200033).
Lee said that the reasoning behind what constitutes a state authorization "has potentially broad applications" where certain states' marijuana laws could be seen as authorizing a "broad range of marijuana accessories that may have been at risk of being" seized. For instance, Lee pointed to marijuana packaging as a type of good that could be deemed drug paraphernalia for its use in the consumption of marijuana but could be cleared by state-level authorizations.
While there are still a host of questions over these decisions, including whether CBP has to separately consider each state's laws and what CBP should do where states do not have any specific authorization for cannabis accessories, Lee said the decisions are "very encouraging for those in the cannabis industry." This is especially appealing given the government's lack of an appeal thus far.
"It looks like the U.S. government has chosen not to appeal the CIT’s decision in Eteros. The government still has until December 19 to file an appeal of the CIT’s decision in Keirton," the blog said. "But if no further appeals are filed, the next step will be to see to what extent CBP changes their policy towards drug paraphernalia seizures. And there are still plenty of questions as to what CBP will do with these CIT decisions." The government did not file an appeal nor request a further stay in the matter at CIT.