Our office has increasingly received requests for guidance
on importation of marijuana paraphernalia products to the U.S. where twenty-six
(26) states have
legalized
the use of marijuana for medical purposes and/or personal consumption such
as California, Massachusetts, Maine and Nevada. The purpose of this article is
to dispel the confusion as to why paraphernalia products (grinders, storage
containers, rolling paper, pipes, vape pens, etc.) are continuously being
seized by U.S. Customs and Border Protection (CBP), even when such products may
be used by tobacco smokers. It is important to address the realities between
federal and state laws regulating drug paraphernalia products so importers can
avoid CBP’s enforcement of U.S. Laws.
Why Does CBP Stop Drug Paraphernalia?
-
CBP secures America’s borders at and between
ports of entry by stopping inadmissible people and illicit goods. The
Tariff
Act of 1789 provides one of CBP’s core functions: to act as the leading
federal agency in determining the admissibility of goods that may enter the
Commerce of the United States. Even though each State has internally legalized
marijuana either for medical or recreational purposes, CBP still has the
express power to authorize
or not
any merchandise that comes into the U.S. Thus, CBP can detain and seize “drug
paraphernalia” even if you did not intend to use the product that purpose
pursuant to
19
U.S.C. § 1595a(c) stating a violation of
21 U.S.C. § 863.
What Constitutes Drug Paraphernalia?
In 2014, a smoke shop owner imported different merchandise
from China described as “glass hookahs and parts”. The Central District of
California considered these products, which were valued at $82,933.64 as drug
paraphernalia and thus detained and seized the merchandise pursuant to
19
U.S.C. § 1595a(c) for violations of
21 U.S.C. § 863. The U.S. sued the shop owner and the Court concluded that
“despite…[the] erroneous characterization of the merchandise as ‘hookah
pipes’…they are bongs, and are therefore barred from entry into the United
States.”
To determine whether the product is drug paraphernalia, the
Court will not only consider the Code, but also other relevant factors such as
the existence and scope of legitimate uses of the product in the community and
expert testimony concerning its use. Under 21 U.S.C. Section 863(e), the
following items are used to determine if a product is drug paraphernalia:
(1) instructions, oral or written,
provided with the item concerning its use;
(2) descriptive materials accompanying
the item which explain or depict its use;
(3) national and local advertising
concerning its use;
(4) the manner in which the item is displayed
for sale;
(5) whether the owner, or anyone in
control of the item, is a legitimate supplier of like or related items to the
community, such as a licensed distributor or dealer of tobacco products;
(6) direct or circumstantial evidence
of the ratio of sales of the item(s) to the total sales of the business
enterprise;
(7) the existence and scope of
legitimate uses of the item in the community; and
(8) expert testimony concerning its use.
What Must You Refrain From Doing?
- Sell or offer to sell drug paraphernalia
- Mail drug paraphernalia or transport it through
interstate commerce
- Import or Export drug paraphernalia
REMEMBER: CBP is the federal agency that has control over
everything that is imported and exported to/from the U.S. and therefore, they
have the power to detain and seize your products when it constitutes drug
paraphernalia. This will continue to happen until Congress decides to enact a
Federal Law that allows marijuana consumption on a federal level or drug
paraphernalia within the U.S.
What Do You Do if CBP Detains and/or Seizes Your Merchandise?
CBP has the
power
to detain persons or merchandise and make admissibility decisions. If CBP
believes merchandise should be detained, it is required to send a
Notice
of Detention no later than five (5) business days from the day of
examination. Often, the Notice of Detention does not specify the circumstances
of the detention or is not even issued. It is important during this detention
phase to communicate with CBP to discuss why your merchandise should not
constitute drug paraphernalia and should be released.
CBP also has the ability to seize your merchandise if it is
contrary to law and CBP will send a
Seizure
Notice, which you will have 30 days to respond, and typically we respond in
the form of a Petition. Seizure cases are complicated, it is best to hire an
expert who knows the policies, internal procedures and practices of U.S.
Customs. Most importantly, getting involved early in the detention process is
the best way to tackle this issue.
Want to Know if Your Product Will be Considered Drug Paraphernalia
Prior to Importing?
Prior to importing your product, we recommend you
review your product with an expert and determine whether to request a
Binding Ruling from CBP. In
CBP Ruling
HQ
H150766, an importer inquired on whether
its hookah and hookah components constituted drug paraphernalia. The major
issue CBP decided was whether the hookahs are “primarily intended” for use with
drugs since it is considered a multiple-use item.
CBP ruled that hookahs are admissible merchandise into the United
States and held that they are not considered drug paraphernalia based on
the weight of the evidence addressing the 8 criteria as set forth in 21 U.S.C.
§ 863, specifically its intended use for tobacco and not drugs.
If you have questions on whether or not your product
constitutes drug paraphernalia and are interested in requesting a binding
ruling, or if CBP has detained or seized your product, contact our office at
info@diaztradelaw.com or (305) 456-3830
for assistance.
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