U.S. Customs and Border Protection, in response to the claims, is denying any new action to stop shipments bound for companies operating within Washington’s recreational or medicinal markets. The federal agency, responsible for enforcing federal trade laws at points of entry in the United States, reiterated that marijuana remains illegal per the U.S. code.
“CBP is not putting a new emphasis on identifying overseas shipments to licensed marijuana businesses in Washington state,” said Jason Givens, a spokesman for the agency based in Seattle, in an emailed response last week to questions about seizures.
A spokeswoman for the Port of Tacoma said via email Tuesday they weren’t “aware of any seizures for this commodity through our gateway.”
But Washington attorneys and the firms they represent provided documentation to The Spokesman-Review showing seizures of glassware valued in the hundreds of thousands of dollars in September. The companies provided the information on condition of anonymity, concerned about future actions by federal agents that would interrupt their supply of packaging materials for the drug.
Seized materials included spice jars and glass vials that bore no markings indicating they were bound for a marijuana producer and processor, representatives of the companies said.
Those types of materials are not explicitly listed among the items prohibited from import by federal law, which is instead focused on methods of delivery including pipes and bongs, said Aaron Pelley, an attorney for the firm Cultiva Law based in Seattle who said he’s heard from several affected businesses.
“If you read the case law, and what federal drug paraphernalia is defined as, glass jars are not contemplated,” Pelley said.
Pelley disputed Customs’ claims that policies hadn’t changed, noting he’d never received phone calls from businesses with issues about glass shipments until recently.
In 2017, the manufacturers of a childproof storage bag for marijuana based in Colorado reported Customs agents there seized $16,000 worth of product as drug paraphernalia, according to a story that appeared in Inc. magazine.
The Washington Cannabusiness Association, a trade group that advocates on behalf of the state’s legal marijuana providers, also confirmed it was working with businesses affected by the seizures.
“We are continuing to work with appropriate federal officials to resolve the issues as soon as possible for all affected businesses,” said Aaron Pickus, a spokesman for the association, in an email. “While I can’t share an exact number of affected businesses, we have heard from several of our members who have been affected.”
The reported seizures are occurring at a time when the Border Patrol is reporting far fewer and less marijuana seized at ports of entry than in previous years, suggesting legalization in a number of U.S. states has reduced the amount of the drug that people are trying to smuggle into the country.
In 2014, the year legal sales began in Washington and Colorado, the agency reported seizing 1.9 million pounds of marijuana. In 2018, agents confiscated a little less than 267,000 pounds, a reduction of nearly 86%.
The jars and packaging Washington companies reported seizedwere mostly imported from China, where glass is cheaper than similar products produced in America. The disruptions in recent weeks were the first time many companies reported having trouble importing the products for packaging.
Businesses receive a letter indicating their product has been seized. Givens did not provide data on the number of seizures that had occurred in recent weeks, but the federal government publishes a list of seized items online daily that includes items taken at each port of entry, along with a legal citation for the law allegedly violated.
On Oct. 23, the agency reported multiple seizures of contraband at the port of Tacoma between the dates of July 30 and Aug. 14. They included shipments of glass bongs, promotional bags and grinders, among other items. Some were valued at more than $1 million.
Shipment owners may petition to have their property returned to them, but to do so they must post a bond of $5,000 or 10% of the shipment’s assessed value, whichever is less.
The success of the petition is also not guaranteed. Previous administrative and court rulings have given Border Protection far-reaching authority to seize products involved in the federally illegal marijuana industry, despite a provision in the law that provides an exemption for “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items.”
A 2017 opinion authored by Lisa Burley, a branch chief with the Border Protection’s Office of Trade, Regulations and Rulings, found the importation of a marijuana vaporizing product to Colorado violated the federal code on importation because the exemption only applied to products that “have some legitimate, lawful use that is both unconnected to narcotics and explicitly recognized by statute.”
That interpretation would seem to exempt the jars and packaging reportedly seized from Washington businesses. But a subsequent court ruling, authored by a federal judge in New Mexico in December, found that exemption only protected people from criminal prosecutions. The government could still seize items tied to drugs as a civil matter, the judge ruled.
Pelley said he’s working with affected businesses on potential legal options, but in many cases getting the seized glass materials back would cost more in legal fees than they’re worth, he said. Those who own a seized product have 30 days to file a petition seeking restitution of their products.
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