Clark Hill: Marijuana Rescheduling’s Impact on U.S. Customs and Border Patrol Interdiction of Drug Paraphernalia

May 2, 2024

R. Kevin Williams

The Biden administration has proposed to reschedule marijuana from a Schedule I to Schedule III controlled substance. This reclassification will place marijuana in the same schedule as prescription drugs such as ketamine and Tylenol with codeine.

This raises the question whether the rescheduling will affect the ability of U.S. Customs and Border Protection (CBP) to seize imports of accessories or other devices used to consume marijuana. CBP currently seizes such merchandise under the authority of the Mail Order Drug Paraphernalia Control Act of 1986 (Paraphernalia Act or Act). The Act prohibits the importation or exportation of drug paraphernalia, which is defined as products used to ingest or inhale controlled substances. Marijuana will remain a controlled substance when it is reclassified into Schedule III. Thus, CBP will still have the authority to seize marijuana accessories under the Act, but will they do so?

The legalization of marijuana, either for medical or recreational use, and possession of marijuana accessories in 38 states brings another provision of the Paraphernalia Act into play by importers challenging CBP’s seizure of marijuana accessories. This provision states that the Act’s prohibitions shall not apply to “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items.”

This provision has been cited by numerous importers to challenge the lawfulness of CBP’s seizure of marijuana accessories. In published decisions and rulings, CBP has generally rebuffed these challenges with legally dubious and tortured analysis of the federal and state statutes. The U.S. Court of International Trade (“CIT”), however, has been more receptive.

In two recent cases, the CIT held that CBP’s exclusion of equipment used to process marijuana plants under the Act was unlawful because Washington state’s marijuana authorizes the possession of marijuana accessories. These decisions dealt with CBP’s exclusion of merchandise at the time of importation rather than seizure, but this is a procedural distinction that doesn’t impact the applicability of the CIT’s analysis to seizure cases.

Another development is that the U.S. Department of Justice has in some instances declined to pursue legal forfeiture of seized marijuana accessories when forfeiture proceedings have been requested by an importer in lieu of administrative petitioning against the seizure. A decision not to pursue forfeiture results in the release of the seized merchandise.

These developments are evidence of the shifting legal landscape in favor of the legalization of marijuana and marijuana accessories. The federal government has yet to embrace this shift through legislation, but the reclassification of marijuana to Schedule III is a shift in the direction of the state-led legalization trend in the United States.

While CBP may retain legal authority to seize marijuana accessories, the agency may follow along with policy shifts evidenced by the rescheduling of marijuana, the CIT’s application of the state law exclusion in the Act, and the reluctance of the Justice Department to devote resources to forfeit goods seized under the Act, and reduce its aggressive enforcement of this authority. Treatment of these items by the government will need to be continually assessed and may change in each instance.

If you need assistance navigating this complex legal landscape, please contact Clark Hill to better understand how these developments will impact your business interests.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.

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Jeff Hergot – Wildboer Dellelce LLP

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Tim Morales – The Cannabis Industry Association Costa Rica

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Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

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Teddy Eynon – Partner Fox Rothschild