Importing drug paraphernalia is illegal under the federal Controlled Substances Act (CSA). This in itself is not a shocker to most. What is more noteworthy, however, is how expansive the definition of “drug paraphernalia” can be, as well as the universe of information that federal agencies, in particular U.S. Customs and Border Protection (CBP), regularly consider when determining if a particular item is unlawful or not. Importers of psychedelic-related products need to be aware of the risks.
The Controlled Substances Act’s prohibitions
According to the CSA, it is unlawful for any person to (1) sell, (2) use any facility of interstate commerce (for example, cars) to transport, or (3) import or export drug paraphernalia. 21 U.S.C. § 863(a).
It is worth noting that state law may also prohibit certain activities involving paraphernalia, including possession.
Defining “drug paraphernalia”
The CSA lists some examples of drug paraphernalia, for example, roach clips and bongs. 21 U.S.C. § 863(d)(1)-(15). This list, however, is not exclusive. Any item that “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” is unlawful. 21 U.S.C. § 863(d).
In some cases, whether an item falls under the definition above is not a clear-cut matter. The CSA provides a series of factors that agents an consider when determining if a particular item is drug paraphernalia. 21 U.S.C. § 863(e). For example, CBP can look at advertising for the item or instructions provided with it.
The CSA’s approach means that the same product could be unlawful in some instances, and not in others. For example:
Take a water pipe made in Jordan. If the importer of that product is a company that sources Middle Eastern products, including flavored tobacco, and refers to the pipes as shisha or argileh on its website, they are unlikely to face issues upon entry into the United States on drug paraphernalia grounds.
On the other hand, if the importer calls the product a water bong and alludes to cannabis on its advertising, there is a good chance the products will be seized as drug paraphernalia.
CBP will hit the dislike button
As confirmed by its rulings on drug paraphernalia cases, CBP will look everywhere for evidence regarding an item’s use. This includes not just expected sources, such as a manufacturer’s website, but also social media and the comments section on e-commerce platforms such as Amazon. Oh, and they won’t just look at what the manufacturer or seller is saying about the item: They will also consider comments by outsiders. So if a satisfied customer is a little too honest in its product review, that could spell trouble.
Businesses need to be aware of the risks associated with importing psychedelic-related products, even if the product in question does not quite fit their idea of “drug paraphernalia.” Recognizing a possible risk is the first, necessary step to mitigating said risk—assuming that is a realistic possibility. An important part of risk mitigation is controlling messaging about the product. Certainly, they should ensure that their own messaging doesn’t treat the products as paraphernalia. At the same time, they must police cyberspace to identify and, where possible, address problematic messaging by customers and other third parties.