Washington State Legalized Marijuana 'Paraphernalia,' Making It Legal to Import, Importer Argues
Washington state did not simply remove the threat of prosecution over the possession and distribution of marijuana and marijuana "paraphernalia," and in fact legalized it, making importer Keirton USA's import of marijuana "drug paraphernalia" legal, the importer argued in a May 2 reply brief at the Court of International Trade. CBP tried to argue that the importation of such paraphernalia was illegal since Washington merely decriminalized possession of the materials rather than legalizing it. Keirton argued that this is untrue and that CBP admitted as much in a headquarters ruling (Keirton USA v. U.S. Customs and Border Protection, CIT #21-00452).
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The facts of Keirton's case date back to 2012, when the importer first had a shipment of its signature product, Twister Trimmer, seized on the basis that it was "drug paraphernalia." The matter was resolved via a nonconfidential settlement. From 2012 to 2019, no additional shipments of any Keirton parts were seized, and that continued until May 2020. In the months that followed, CBP detained more than $1 million in Keirton shipments, alleging again that the merchandise was to be used for illegal purposes.
Keirton originally filed suit at the U.S. District Court for the Western District of Washington, where a federal judge said that the proper jurisdictional home for the action was CIT (see 2104160035). The importer then filed suit at CIT. The crux of Keirton's case rests on a purported exemption in federal law, exemption (f)(1), for goods deemed to be drug paraphernalia that are legal at the state level (see 2201060059).
CBP contested this, though, arguing that nothing in Washington state law permits an individual or entity to possess drug paraphernalia (see 2203290052). The U.S. now says that this exemption is not satisfied since the relevant state law does not expressly authorize possession, rather it merely decriminalizes it. Keirton chalked this up as nonsense.
"Washington State has gone beyond simply removing the threat of prosecution for marijuana drug paraphernalia and instead has legalized a substance and activity that is regulated and taxed," the reply brief said. "Furthermore, Washington State has removed agricultural equipment for processing marijuana, such as the equipment manufactured and distributed by Keirton, from its definition of 'drug paraphernalia.' Keirton is therefore exempt from marijuana retailer license requirements."
Keirton brought the receipts as well on this point, pointing to court rulings, the writings of legal scholars, rulings from the Washington State Liquor and Cannabis Board and CBP itself to emphasize this point. A 2020 CBP headquarters ruling said that "the fact that cannabis possession is legal under the state laws of California, Washington, and other states has no bearing on the present ruling request; regardless, the sale and possession of cannabis remain unlawful in Georgia, the state in which you intend to import the subject merchandise." Even the deputy attorney general in 2013 sent out a memorandum on marijuana enforcement acknowledging legalization in some states, Keirton said.
"The idea that CBP is now trying to make the legalization of marijuana in Washington State something different is an indicator of how threadbare its opposition truly is," the brief said. "After all, even the Federal government agrees that Washington State has legalized marijuana."