Industry Seizures

Customs and Border Protection is seizing packaging as “drug paraphernalia”

It’s not unusual for the Customs and Border Protection to seize foreign glass like bongs, pipes and chillums at the various ports of entry around the country. It is, after all, “drug paraphernalia” as defined by the U.S. legal code.

But beginning last year, the CBP seemingly widened its focus to include, among other things, glass of a different sort: jars.

Hundreds of thousands of dollars’ worth of jars and other packaging set for use by the legal cannabis industry are currently sitting among the stacks of items that have been seized, with higher numbers seeming to come from ports in the Seattle/Tacoma area. To many in the industry, that seems like a change in policy for the CBP, the federal agency within the Department of Homeland Security charged with enforcing trade laws and regulations.

“It’s fairly confusing,” said the CEO of one affected company, who wished to remain anonymous. The CEO said his company had issues in the past in Los Angeles, but never had issues in Washington state prior to a recent shipment that was held. “We’ve typically never had any issue out of that port.”

“Why all of a sudden?” he asked, wondering if it is part of the Trump Administration’s trade war with China.

It’s not an uncommon refrain.

Simple jars, such as the ones regularly used by state-licensed cannabis companies, are being seized by Customs and Border Patrol. Photo by Greg James.

Attorney Ryan Espegard, a partner at Gordon Thomas Honeywell in Seattle, said he has personally dealt with one client’s packaging being seized, but has also heard from other attorneys about similar experiences. Espegard said the seizure came as a surprise.

“They had, I believe, many routine imports of packaging prior to this and one random day had a seizure of what had been coming through without problem,” he said, adding that what was held was “clear packaging with a label” that indicated that the items were intended to package cannabis.

The items are being seized, according to the daily reports available from CBP, under the “drug paraphernalia” section of the U.S. Code, 21 USC 863, which defines it 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 even in citing that code, Espegard called it an “overreach” and said he does not believe that gives CBP the right to seize items like jars or other packaging.

“It’s primarily anything that is used in the production and consumption of an illegal drug, it doesn’t say anything about storage,” he said of the code.

Espegard said regardless of the item, he believes the “exemptions” section of the law makes the items lawful anyway. According to Section F of the code, it does not apply to “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items,” which he said should cover any state-licensed cannabis business, including his client.

“My understanding is customs is sporadically stopping packaging that’s coming through under the claim that they don’t know whether it’s for a legal or an illegal marijuana business,” Espegard said. “The absurdity in my client’s claim is it had labeling on the packaging themselves that indicated it was for a licensed marijuana business.”

Jason Givens, a spokesman for CBP, declined to be interviewed for this story but offered the following explanation via email: “Despite certain U.S. states having legalized the use of recreational marijuana including related paraphernalia, it remains a controlled substance under U.S. federal law. Importation of marijuana or related paraphernalia into the U.S. remains illegal and is subject to forfeiture or seizure depending on the facts and circumstances of the case.”

Givens went on to say that this is not a new emphasis but that CBP officers are “having increased success in their efforts to seize prohibited merchandise.”

“Their explanation for it doesn’t really add up,” said Espegard, adding that his clients eventually had their packaging returned. “I believe that packaging that is intended for a licensed business would not be paraphernalia.”

Espegard cited the 1992 2nd U.S. Circuit Court of Appeals decision U.S. v. Hong-Lian Lin, which determined that plastic vials, while intended to be used for crack cocaine distribution, did not qualify as paraphernalia.

Givens, however, cited the 2018 case U.S. v. Assorted Drug Paraphernalia Valued at $29,627 from a U.S. District Court in New Mexico that ruled that the exemptions sections protects an individual from criminal prosecution, but is inapplicable from civil forfeiture or seizure of items like jars.

Espegard said the case supports CBP’s position, but he thinks the analysis is wrong because the decision “ignores the statutory language and replaces it with new language.”
“The statute is much more specific and seemingly excludes items used solely for packaging controlled substances,” he said. “In other words, there appears to be conflicting case law and the issue has not been definitely resolved.”

Because of that, Espegard said licensed cannabis businesses should “Consider only using U.S.-based suppliers to avoid these issues.”

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