Debra BorchardtWhile the impact of rescheduling cannabis to Schedule III has taken many turns, one area that hasn’t been dissected is the move’s effect on accessories or paraphernalia.
R. Kevin Williams, a member at Clark Hill PLC, recently tackled the subject on Law360, questioning whether the rescheduling of marijuana will affect how U.S. Customs and Border Protection treats imports of accessories or other devices used to consume cannabis.
Currently, the Mail Order Drug Paraphernalia Control Act – codified as Title 21 of the U.S. Code, Section 863 – prohibits the importation or exportation of drug paraphernalia. This includes such items as pipes, bongs, and even clips. The CBP can seize any shipment with these products, though an importer can request that the CBP release a seized shipment. Williams noted that most petitions for this kind of relief are denied.
Technically, changing cannabis to Schedule III doesn’t change the fact that the drug remains a controlled substance, which means the CBP could continue to seize shipments of paraphernalia. Williams did suggest that the CBP could alter its enforcement policy through existing provisions in the statute.
Williams also pointed out that within the Section 863 language, there is a section that states the prohibitions do not apply to “any person authorized by local, state, or federal law to manufacture, possess, or distribute such items.” However, the CBP argues that the carve-out only applies to legitimate drug accessories, not to narcotics usage, meaning any such tests in court have generally failed.
On a positive note, when the CBP has seized products like machinery used to process cannabis plants, the Department of Justice has generally declined to pursue charges, and the products were ordered to be released. So, the question could become: Will the DOJ back up the CBP on seizing cannabis-related products?
“Rescheduling could ease up importing for U.S. paraphernalia companies. They’d be able to bring in product at a higher volume, resulting in cheaper rates,” Bryan Gerber, CEO of Hemper, an accessory subscription box, said. “Some might expect that to result in the U.S. being flooded with cheap products from overseas, but the truth is that they’re already here. It’s common to find cheap, overseas products at both bodegas and smoke shops.”
Gerber went on to add, “Generic products from China are all over the market, but they sell poorly unless they have copyright-infringing artwork on them. There are lots of ashtrays with Pokemon on them that aren’t licensed but sell well in cash-and-carry markets. However, we’ve seen at Hemper that our higher quality, functional and affordable products consistently outsell the generic products from overseas.”
