Importer Asks CIT to Overturn CBP Exclusion of "Hemp" Processing Equipment

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Jun. 22, 2021

Eteros Technologies USA has filed a complaint in the Court of International Trade claiming that certain motor frame assemblies were improperly excluded by CBP as drug paraphernalia.

The motor frame assemblies at issue here are intended to be combined with other parts in the United States to create the Mobius M108S Trimmer, an agricultural machine. The Mobius M108S Trimmer is designed to separate the leaf from the flower of cannabis or other plant material.

Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, merchandise can be excluded, and seized by CBP under authority of 19 U.S.C. § 1595a(c)(2)(A). 21 U.S.C. § 863. The CSA makes it “unlawful for any person—

(1) to sell or offer for sale drug paraphernalia;

(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or

(3) to import or export drug paraphernalia.

“Drug paraphernalia” may cover a wide range of items used to prepare, conceal, and ingest controlled substances and is defined under 21 U.S.C. § 863 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, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body …

Eteros argues first that CBP should not have excluded the motor frame assemblies as "drug paraphernalia" because the primary intended use of the Mobius M108S in the USA is with “hemp.” “Hemp” cannot be “drug paraphernalia” under 21 U.S.C. § 863(d) because “hemp” is not a controlled substance. Eteros further argues that CBP should not have excluded the motor frame assemblies because even though the Mobius M108S may be used for marijuana processing, this is legal in the states of Washington and Nevada. As part of the complaint, Eteros points to a statutory exemption to the Paraphernalia Control Act, which provides for consideration of local, state, and/or federal authorizations of the manufacture, possession, or distribution of merchandise meeting the federal definition of “drug paraphernalia.”

As CBP consistently rejects this exemption to the Paraphernalia Control Act, Eteros is not the first company to bring an exclusion of marijuana production equipment to the CIT. However, this cased demonstrates that as state cannabis laws continue to liberalize, pressure will continue to mount for the Federal government to recognize these laws. If you have any questions relating to this case or the importation of marijuana processing equipment, do not hesitate to contact an attorney at Barnes, Richardson & Colburn LLP.