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CIT Again Says Importer Can Enter Marijuana-Related Paraphernalia Into Washington State

It's legal for importer Keirton USA to enter marijuana-related drug paraphernalia into Washington state, the Court of International Trade ruled in an Oct. 20 opinion. Building on the trade court's similar Eteros decision, Judge Claire Kelly said Washington's repeal of past restrictions on marijuana-related drug paraphernalia constitutes an authorization of the manufacture, possession and distribution of these goods, so that importing these goods qualifies for the exemption under the Federal Mail Order Drug Paraphernalia Control Act of 1986. Kelly, like Judge Gary Katzmann in the Eteros decision, relied on the Supreme Court case Murphy v. NCAA to construe the definition of "authorization."

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"We have been fighting CBP over this issue going on ten years and it is appropriate that the Court has applied the exception as it is written, and clearly as Congress intended," said Brad Thoreson, counsel for Keirton. "It permits our client to do what CBP has been stopping it from doing -- legally importing cannabis manufacturing products into the State of Washington without ... automatic seizures, exclusions, and the like."

In 2012, a shipment of Keirton's signature product, Twister Trimmer, was seized on the basis that it was "drug paraphernalia" and could be used in the cannabis industry. The matter was resolved via a nonconfidential settlement. No additional shipments of any Keirton parts were seized until May 2020. In the months that followed, CBP detained more than $1 million worth of 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 CIT was the proper jurisdictional home (see 2104160035). The importer then filed suit at the trade court. The crux of Keirton's case rests on a purported exemption in federal law, 21 U.S.C. 863(f)(1), for goods deemed to be drug paraphernalia but that are legal at the state level (see 2201060059). The U.S. said that nothing in Washington state law permits an individual or entity to possess drug paraphernalia, arguing this exemption is not satisfied because the relevant state law does not expressly authorize possession, rather it merely decriminalizes it.

Kelly sided with Keirton, ruling the exemption was satisfied. The judge's ruling echoed Katzmann's, who in September made a similar ruling in Eteros, finding that Washington's repeal of restrictions on drug paraphernalia was enough to satisfy the federal exemption to the ban on marijuana-related drug paraphernalia (see 2209210034).

Both cases looked to the Murphy case to establish a concept of "authorization." In the case, the Supreme Court considered whether a New Jersey law that made sports betting legal violated the federal Professional and Amateur Sports Protection Act, which made it illegal for states to authorize sports betting. The Supreme Court said that when a state repeals a law that prohibited something -- in this case the state law banning sports gambling -- the state authorizes the previously banned activity. For Keirton, this means the state authorized the import of its Twister Trimmers when it repealed the restrictions on their import.

"Although the range of meanings supplied by dictionary definitions might, in a vacuum, suggest a concomitant range of possible directives for a State to authorize activity, where the State acts against the backdrop of a prior prohibition, there can be no doubt that a repeal of that prohibition satisfies any definition of authorized," Kelly said. "Washington State’s specific exemption of marijuana paraphernalia from its prohibition on drug paraphernalia reflects the State’s intent to authorize persons to possess marijuana paraphernalia."

(Keirton USA v. U.S., Slip Op. 22-118, CIT #21-00452, dated 10/20/22, Judge Claire Kelly. Attorneys: Bradley Park Thoreson of Buchalter for plaintiff Keirton; Guy Eddon for defendant U.S. government)