OT:RR:BSTC:CCR HQ H275206 SWM
Kristin Mowry
Mowry & Grimson, PLLC
5335 Wisconsin Avenue, N.W.
Washington, D.C. 20015
Richard L. Matheny, III
Goodwin Proctor, LLP
901 New York Avenue, N.W.
Washington, D.C. 20001
RE: 21 U.S.C. § 863; Drug Paraphernalia; CannaCloud Vaporizer; U.S. Const. art. VI, cl. 2; 21 U.S.C. § 903; 19 C.F.R. § 177.2; Colo. Const. art. XVIII §§ 16(3)(a), 16(4)(a)
Dear Ms. Mowry and Mr. Matheny:
This is in response to your correspondence dated April 22, 2017, in which you requested a ruling letter in accordance with 19 C.F.R. § 177.2, regarding the admissibility and classification of the CannaCloud Vaporizer. Our ruling is set forth below.
FACTS
The subject merchandise, called the CannaCloud, is a vaporizing device described as being a single-use, pod based cannabis vaporizing system. The CannaCloud, is said to be used with ground cannabis flower pre-packaged inside the pods. The pods consist of “various types of sativa, indica, hybrid and CBD-only strains [of marijuana].” The vaporizing function heats the marijuana, housed inside the pods, to a boiling temperature. The vaporizer dehydrates the marijuana, rather than burning it, creating a vapor rather than smoke. According to your submission dated April 22, 2017, this technology is patent pending. The CannaCloud will be manufactured in China and exported from Hong Kong to the Port of Los Angeles, California, and from there via in-bond transportation by truck to the Port of Denver, Colorado. The merchandise is intended to be sold, via retailers, in states which have legalized marijuana use; particularly, Colorado.
ISSUE
Whether the subject vaporizer is exempted from the prohibition on the importation of drug paraphernalia set forth in 21 U.S.C. § 863(a) and may be legally imported into the United States pursuant to the exemption provided in 21 U.S.C. § 863(f)(1) because the state into which the importation of the drug paraphernalia is destined allows the importing entity to sell the drug paraphernalia in that state?
LAW AND ANALYSIS
The relevant statute, 21 U.S.C. § 863, provides, in pertinent part:
In general
It is unlawful for any person-
to sell or offer for sale drug paraphernalia;
to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or to import or export drug paraphernalia.
* * *
(f) Exemptions:
This section shall not apply to-
any person authorized by local, State or Federal law to manufacture, possess, or distribute such items; or
any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.
You concede that the subject merchandise is “drug paraphernalia,” stating that the “CannaCloud is a ‘marijuana accessory’ under Colorado law [pursuant to Colo. Const. art. XVIII, § 16(2)(g)].” Accordingly, the CannaCloud product is plainly prohibited from importation by § 863(a). Importation of the merchandise would subject CannaKorp to the penalties set forth in § 863(b) absent application of one of the exemptions provided in § 863(f). You argue that the exemption found in § 863(f)(1) applies to these circumstances because the Colorado Constitution provides that it shall not be an offense under state or local law to possess, use, display, purchase, or transport marijuana accessories or to sell marijuana accessories to an individual who is 21 years old or older. Colo. Const. art. XVIII §§ 16(3)(a), 16(4)(a).
To determine whether § 863(f)(1) applies to state laws that legalize the possession or distribution of drug paraphernalia, we must analyze the meaning of the term “such items” as the term “items” is not defined by the statute. Although any analysis of a statute begins with its plain language, “in [a court’s] analysis of the plain language, [the court] must also ‘read the words in their context and with a view to their place in the overall statutory scheme.’” Courts also generally avoid interpretations that would render statutory language superfluous. We draw our conclusion from (1) the plain language of § 863(f)(1), considered in the context of § 863 as a whole; (2) the importance of avoiding an absurd result; and (3) the doctrine of Federal supremacy.
In the context of § 863, the generic term “items” does not mean or include “drug paraphernalia.” Rather, “items” applies to a legitimate use of an item not associated with narcotics. The prohibitions in § 863(a) plainly and unambiguously prohibit the sale, importation, exportation, and other transportation of “drug paraphernalia.” The term “drug paraphernalia” is then carefully defined in the statute to include “any equipment, product, or material of any kind” that “is primarily intended or designed for use” with “a controlled substance, possession of which is unlawful under this subchapter.” Section 863(d) also lists certain types of “items” which are “intended or designed for use in ingesting, inhaling, or otherwise introducing” certain narcotics into the body, which are classified as drug paraphernalia. In § 863(e), the statute sets forth a number of factors that may be considered “[i]n determining whether an item constitutes drug paraphernalia.”
Significantly, the exemption in § 863(f)(1) uses the term “such items” instead of “drug paraphernalia.” This choice by Congress reflects an intent that the term “items,” as used in § 863(f)(1), excludes items that become “drug paraphernalia” based upon their design or use. As the Supreme Court has stated, “[j]ust as Congress’ choice of words is presumed to be deliberate, so too are its structural choices.” Here, both Congress’ words and the structure of § 863 support the conclusion that § 863(f)(1) exempts items that are explicitly authorized for lawful uses unrelated to narcotics and other controlled substances.
First, Congress could have used the term “drug paraphernalia” directly in § 863(f)(1) if it intended to allow states to exempt themselves from the Federal prohibitions on drug paraphernalia. Congress plainly knew how to use the term, as the prohibitions in § 863(a) apply to drug paraphernalia, and subsections (d) and (e) go to great lengths to define and explain how to characterize particular objects as drug paraphernalia. Instead, Congress used the term “items” instead of the term “drug paraphernalia” in § 863(f)(1). Because it used this different term, we will not equate the use of the term “items” with the term “drug paraphernalia,” which is used elsewhere in the statute.
A plain reading of the statute supports the view that § 863(e) essentially establishes a dichotomy. If an “item constitutes drug paraphernalia,” the “drug paraphernalia” may not be sold, transported, imported, or exported under the prohibitions in § 863(a). An individual who violates this prohibition would be punished in accordance with § 863(b). By contrast, the exemption in § 863(f)(1), which applies to “such items,” is referring to “items” that are not “drug paraphernalia” because they have some legitimate, lawful use that is both unconnected to narcotics and explicitly recognized by statute.
Congress’ use of the term “such items” in § 863(f)(1), as opposed to “drug paraphernalia,” is significant. Based on this deliberate choice reflected in the plain language of the statute, we conclude that Congress did not intend to override, or allow states to override, the broad Federal prohibitions on drug paraphernalia included in § 863(a). Instead, Congress sought to carve out an exemption for possession of legitimate items for lawful purposes to protect individuals possessing those items in a lawful context from a potential determination that the items are, instead, drug paraphernalia.
Furthermore, reading the exemption in § 863(f)(1) to be inapplicable to the present circumstances preserves the legal doctrine of Federal supremacy. Indeed, interpreting the exemption to allow states essentially to exempt their residents from the Federal prohibitions on the importation of drug paraphernalia would lead to absurd results. A core principle of American law is that the Federal laws enacted by Congress constitute the law of the land. As part of this Federal supremacy, it would yield an absurd result to allow a state, through its legislative process, to effectively nullify the application of a Federal statute.
Here, § 863(a) relates in part to the importation and exportation of drug paraphernalia, an area of paramount Federal concern. By prohibiting the importation and exportation of drug paraphernalia into the United States, Congress sought to protect all states from the problems associated with drug paraphernalia. The current version of § 863 has been drafted broadly to provide a comprehensive prohibition on the importation of drug paraphernalia and the transportation of drug paraphernalia in interstate commerce. If a state could essentially exempt itself from this Federal statutory regime, then importations of drug paraphernalia into that state could easily be transported to other states in which drug paraphernalia remains illegal. We decline to interpret § 863(f)(1) in this way because doing so would deprive other states of the full protections afforded by Federal law.
Additionally, a broad construction of § 863(f)(1) would lead to an absurd result that is inconsistent with the explicit preemption provision included in the Controlled Substances Act (CSA), 21 U.S.C. § 903. The preemption provision in the CSA clarifies that Federal law is intended to be supreme in the regulation of controlled substances. While Federal law allows a range of state regulations in the area of controlled substances, it retains its “preemptive effect” over conflicting state provisions. It would create an absurd result to essentially create a contrary result here, in which a state law would have a preemptive effect over conflicting Federal law.
Moreover, the Colorado constitutional provisions at issue do not support the view that Colorado attempted to nullify Federal law. Both the provisions on possession of marijuana accessories and sale of marijuana accessories begin with the same preface:
Notwithstanding any other provision of law, the following acts are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law for persons twenty-one years of age or older.
These Colorado provisions plainly apply only for purposes of state law. This language does not suggest that the statute was intended to nullify the Federal provisions that protect citizens in all states against the distribution of drug paraphernalia. The language used in the Colorado provisions, which refers only to state and local law, emphasizes that allowing such state provisions to nullify the application of a Federal law would create an absurd result.
Finally, the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) establishes that Federal laws made pursuant to the Constitution constitute the supreme law of the land. Specifically, Article VI, Clause 2 requires that in the event of any conflict between state and Federal law, that Federal law must be applied. As such, the plain language of the exemption set forth in § 863(f)(1) nullifies the argument made on behalf of CannaKorp as it concerns Federal law. In particular, the language of § 863(f)(1) provides, in relevant part, that the violation shall not apply to “any person authorized…by local, State or Federal law to manufacture, possess, or distribute such items…” [Emphasis added]. In the context of 21 U.S.C. § 863, Federal law does not “authorize” the importation of drug paraphernalia under any circumstances. Hence, it is clear that Congress would not have created a provision allowing for the importation of drug paraphernalia in the same Statute in which the same is prohibited.
Based on the foregoing, § 863(f)(1) does not provide an importer a means to bring drug paraphernalia into this country for sale in a state where drug paraphernalia is legal under state law. Such state laws should not be read to eviscerate a comprehensive Federal enforcement regime that targets drug paraphernalia. The plain language of the statute, as well as the general rule against absurd results, the statutory purpose, and doctrine of Federal supremacy provide further support for this interpretation.
HOLDING
The subject merchandise is not exempted from the prohibition on the importation of drug paraphernalia set forth in 21 U.S.C. § 863(a) and may not be legally imported into the United States because the exemption set forth in 21 U.S.C. § 863(f)(1) does not apply.
Sincerely,
Lisa L. Burley
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection