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News, Politics

State Marijuana Legalization Justifies Exemption in Ban on Paraphernalia Imports, Court Rules

Bethan Rose

by Bethan Rose

December 14, 2022 11:00 am ET Estimated Read Time: 4 Minutes
State Marijuana Legalization Justifies Exemption in Ban on Paraphernalia Imports, Court Rules

A federal court recently issued a groundbreaking ruling that could set a nationwide standard permitting the legal importation of marijuana paraphernalia from other countries into legal states.

Although drug paraphernalia import and export is outlawed under the federal Controlled Substances Act (CSA), the ruling was confirmed by the U.S. Court of International Trade (CIT). Moving forwards, states that have enacted cannabis legalization will be exempt from the ban. The case came to light after the U.S. Customs and Border Protection (CBP) forbade cannabis trimming equipment imports from Canada to Washington state in 2021. 

That particular ban denied entry on the grounds of its paraphernalia statute definition of the CSA. Eteros Technologies USA responded to the ban by filing a lawsuit. Based in San Jose, CA, the company contested that the paraphernalia rule is irrelevant to them since the device is designed to trim federally legal hemp.

Eteros argued that even if the paraphernalia rule was associated with marijuana, federal law safeguards the importation of paraphernalia after localities or states have given it the green light.

The Federal Definition of Drug Paraphernalia

Under federal law, drug paraphernalia is defined as “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.”

However, federal law clearly states that any person “authorized by local, State, or Federal law to manufacture, possess, or distribute such items” is exempt from the import and export ban. The court’s approval of the statute is likely to have a major influence on ancillary cannabis companies, many of which have run into troubles due to state-federal cannabis policy confusion.

“In sum, upon consideration of the ordinary meaning of the statutory terms, relevant case law, and Congress’s purpose, the court determines that Eteros is ‘authorized’ under 21 U.S.C. § 863(f)(1) such that § 863(a)(3)’s federal prohibition on importing drug paraphernalia does not apply to Eteros’ Subject Merchandise at the Port of Blaine, Washington,” the opinion, reported earlier by Above The Law, says.

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“The court reiterates that it is not within its province to weigh policy arguments regarding the merits of legislation or to entertain invitations to rewrite legislation; its charge is to interpret and apply the statute as enacted by Congress,” it continues.

The Case Is Likely to Be Appealed by Federal Lawmakers

Although stakeholders are supporting the paraphernalia import exemption, the decision is set to face a federal appeal. One of the attorneys who provided representation for industry leaders in post-harvest cannabis automation equipment noted in a press release that the court’s ruling “is a huge win for the cannabis industry.”

“States’ authorization of persons to manufacture, possess, and/or distribute marijuana-related drug paraphernalia serves to trigger the federal authorization exemption, therefore exempting cannabis-related paraphernalia from the import prohibitions which prevent the importation of all other forms of drug paraphernalia,” attorney Richard O’Neill expressed to reporters.

His opinion was shared by the CEO of the National Cannabis Industry Association (NCIA), Aaron Smith, who said that the company “commends” Eteros “on this important issue and bringing about this win for the legal cannabis industry.”

“Legitimate businesses all over the world are serving the legal cannabis industry, which generates hundreds of thousands of U.S. jobs,” he said, adding that, “hopefully, this decision will ensure that these law-abiding businesses will no longer face unfair impediments to importation or exportation of legal products across our borders.”

Separate Cannabis Import Case Dismissed by CIT

In the interim, CIT rejected another case that was put forward by a cannabis company that protested against CBP for confiscating an extraction product import on suspicion of drug paraphernalia. However, instead of focusing on the underlying subject of importation authorization, the company’s lawsuit highlighted technical disputes. CIT officials responded to the lawsuit by saying that the incident needed to be resolved in a different federal judicial jurisdiction.

The discussion surrounding paraphernalia imports and cross-border cannabis commerce has been heating up recently. Federal law stipulates that it is unlawful for any person to import or export drug paraphernalia. A handful of states have taken the plunge and laid the groundwork for countrywide once federal prohibition is lifted.

For example, California Gov. Gavin Newsom (D) signed 10 cannabis-related bills on Sept. 18, one of which would permit cannabis import commerce once policy change is enacted by the federal government or when relevant guidance is published to safeguard cannabis commerce activity. Additionally, New Jersey Senate President Nicholas Scutari (D) submitted a bill in August that would allow the governor to venture into agreements with other cannabis-friendly states to import and export the plant.

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