21 USC 863(a) makes it “unlawful for any person . . . to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or . . . to import or export drug paraphernalia.
Although marijuana is becoming decriminalized, even legalized for both medical and sometimes recreational use by some of the 50 states, this federal law still makes it illegal to import drug paraphernalia.
What is drug paraphernalia?
Drug paraphernalia is defined very broadly 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 the Controlled Substances Act.”
It also lists specifically pipes of any kind, including water pipes, roach clips, chillums, bongs, ice pipes, chillers, wired cigarette paper, cocaine freebase kits. But that is not all. The law allows CBP (and other law enforcement) to consider “all other logically relevant factors” when decided if something is drug paraphernalia, such as instructions that come with the item, descriptive materials, advertising, manner displayed for sale, what kind of business the owner operates, and the existence and scope of legitimate uses.
This last consideration, “all other logically relevant factors” is really just a common-sense test. For instance, if you’re importing glass pipes it is beyond obvious that it will not have a legitimate non-drug use. Yes, you can smoke tobacco, or cloves, in a glass pipe, but that is not it’s primary intended or designed use. Everyone knows this.
Likewise, you cannot import glass vases which are essentially unfinished water pipes; this becomes more obvious if the glass vases have psychedelic colors, or feature pictures of Bob Marley. Any simpleton can figure out that these will not be used to hold flowers, but instead will be converted into bong.
Water pipes are not drug paraphernalia if they are imported for use with hookah tobacco (shisha), or waterpipe tobacco. But, if they are primarily designed or intended for use with a controlled substance, then they become drug paraphernalia. In making a determination whether or not to seize a water pipe (hookah) shipment, CBP will (or should) look to see what they know about the importer; do they have a tobacco license, or do they sell to tobacco shops? If so, then it’s likely not designed or intended for use with a controlled substance. But if they do not have a license, and sell primarily to headshops, then voilà, it is drug paraphernalia.
What is the penalty for importing drug paraphernalia?
The penalty for importing drug paraphernalia is equal to the domestic value of the shipment. In other words, if you paid $20,000 for smoking pipes, the penalty issued by CBP is $20,000.
A penalty can occur at the same time as a seizure, but most often it happens after the goods have been seized and the forfeiture process is complete. The importer receives by regular mail a form called “notice of penalty or liquidated damages incurred and demand for payment” which explains the essence of the alleged violation, and gives you 60 days to pay it or file a petition for mitigation.
The notice cites the laws violated as 19 USC 1595a(b) and 21 USC 863; namely, this means that the penalty is being assessed for importing merchandise into the United States contrary to law because it is drug paraphernalia.
Is mitigation of drug paraphernalia penalties possible?
Mitigation of drug paraphernalia penalties is possible, but you have to file a petition in order to get them mitigated. Mitigation is the reduction, or discounting, of the penalty amount owed to U.S. Customs & Border Protection. A petition must be filed within 60 days of the date of the penalty, unless the penalty notice states otherwise.
A drug paraphernalia charge can be mitigated from anywhere between 10% of the original penalty to 80% of the original penalty, depending on the various circumstances. It is important to make good legal arguments in the petition to try to get the penalty as low as possible, and the changing legal treatment of marijuana in the states may have an important role in reducing, or even eliminating, a penalty (but see HQ H275206; also Eteros Technologies USA, Inc. v. United States, Slop op 22-111 (CIT, 2022). It is something that should be considered with an attorney who prepares your petition.
If you’ve received a notice of penalty contact Great Lakes Customs Law today and we can discuss what opportunities are available for obtaining mitigation of the penalty for importing drug paraphernalia.