A federal court has again rejected a U.S. Customs and Border Protection (CBP) attempt to block the import of marijuana trimming equipment into the U.S. because it was intended to be shipped to a state that has legalized cannabis and related paraphernalia.
The U.S. Court of International Trade (CIT) has already established precedent in this unique situation last month, upholding the right to importation of trimming technology from a Canadian company to a business in Washington State after CBP blocked the transfer.
Now it’s made the same judgment in a ruling on Thursday, determining that the the company Keirton can import equipment for its “Twisted Trimmers” product that are used to separate leaves from marijuana plants in the state-legal market.
CBP falls under the Department of Homeland Security, but the federal Justice Department represented the agency in the court challenge. DOJ tried to argue that the CBP exclusion from entry was warranted because the company intended to sell products used for the manufacturing of cannabis, a Schedule I drug under the Controlled Substances Act (CSA).
The court said that argument doesn’t hold up under a review of relevant statute that creates a drug paraphernalia exception for imports to states that have authorized the activity regardless of federal law.
Defendants said that CSA’s “overarching purpose is to create a uniform Federal prohibition and that allowing the exemption to extend to Washington State’s repeal would undermine the uniformity Congress intended,” the filing says.
“However, Congress did not impose complete uniformity,” the court said. “It provided an exemption. Had it wanted to limit that exemption, it could have done so.”
Federal law defines drug paraphernalia 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.”
But it carves out an exception to the import and export ban for any person “authorized by local, State, or Federal law to manufacture, possess, or distribute such items.”
After CIT handed down a similar ruling in another import case earlier this month, stakeholders cheered the decision, stating that it could have major implications for ancillary marijuana companies that have struggled to navigate the state-federal cannabis policy conflict.
One aspect that’s unique about this latest case is that the Washington State-based company expressly says that its trimmers are used for marijuana, whereas the business in the previous case said their trimmers were used for federally legal hemp. The court has now made abundantly clear that the type of cannabis crop doesn’t matter as long as the state has authorized it.
The expectation is that the federal government will appeal the rulings.
But for the time being, “it is lawful for Keirton to possess and import its merchandise into the State of Washington,” the court said. “Therefore, Keirton’s motion for judgment on the pleadings is granted, and Defendant’s cross-motion for judgment on the pleadings is denied. Judgment will enter accordingly.”
Meanwhile, CIT also recently dismissed a different case brought by a cannabis company that challenged CBP for seizing an import of its extraction products that the agency determined to be drug paraphernalia.
But the company’s lawsuit focused on technical disputes related to the agency’s notification of the seizure, rather than the overarching importation authorization. CIT said that the matter needed to be settled in a different federal judicial jurisdiction.
While each of these cases concern paraphernalia imported into states from other countries, there’s also a growing conversation in the U.S. around a different kind of cross-border cannabis commerce, with certain states taking steps to prepare for interstate trade across the country once federal prohibition is lifted.
California Gov. Gavin Newsom (D) signed a bill last month that will allow for such commerce after the federal government enacts a policy change or when guidance is issued to protect the commerce activity.
New Jersey Senate President Nicholas Scutari (D) filed a bill in August that would authorize the governor to enter into enter into agreements with other legal states to import and export cannabis.
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The bill is similar to interstate cannabis commerce legislation that was filed and signed into law by Oregon Gov. Kate Brown (D) in 2019.
Two members of that state’s congressional delegation followed up on that action by filing a measure that would similarly allow for such activity, preventing the Justice Department from interfering in states that have affirmative agreements to sell marijuana across state lines. The legislation did not advance, however.
In August, a federal appellate court ruled that Maine’s law prohibiting non-residents from owning medical marijuana businesses in the state violates the U.S. Constitution. And legal experts say that the decision could have more far-reaching implications for interstate cannabis commerce—and could create possible complications for social equity programs.
Photo courtesy of Chris Wallis // Side Pocket Images.