Utensils and the PACT law, explained

The PACT Act caused a stir in the cannabis and vaping community, but I caught a vague reference to the United States Postal Service’s (USPS) Controlled Substances Act (CSA) last month.

The update and notification of the USPS PACT Act indicated that the USPS would continue to reject drug paraphernalia as defined in 18 USC 863, as it did before the PACT Act went into effect. However, cannabis companies that sell accessories and other parts should be aware of a little-known provision of the CSA that is being passed on to state and local governments for enforcement purposes.

The definition of drug paraphernalia seems fairly straightforward and includes “any equipment, product, or material of any kind” that is “primarily intended for use in the manufacture, assembly, transformation, concealment, manufacture, processing, preparation, injection, Ingestion, inhalation or otherwise introduction of a controlled substance into the human body. “

RELATED: USPS Proposes Exemption for PACT Act Compliance for Shipments of Hemp and CBD Products

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The definition also lists examples of drug paraphernalia such as hookahs, “hashish heads” and “pierced metal bowls”. However, it also indicates that every item of drug paraphernalia will be checked on a case-by-case basis. There are several indicators of what can be used to determine drug paraphernalia, including instructions, promotional materials, and expert opinions on their use.

Then, finally, we come to the big exception: “This section does not apply to – anyone authorized by local, state, or federal law to make, own, or sell such items.” In the case of marijuana paraphernalia, most states would who have legalized medical, recreational, or both uses are authorized by local and state law to possess or distribute such items.

Well, this may not seem like big news, but there are concerns that the PACT Act’s shipping ban could make it impossible to ship vape products that are used with or intended for use with marijuana, as it is is a controlled substance under Schedule I at the federal level. In this case, there is a reasonable argument that the CSA does not criminalize the shipping of drug paraphernalia to and from or within states and other locations that have decriminalized possession of such items for use with cannabis.

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The language “approved by local and state law” is really the magic word in this case. It’s a needle in the haystack as it is the only reference in the CSA to local and state law enforcement agencies. This is a good thing, however, because legal interpretative principles emphasize that including such precise and unique language in a section called “Exceptions” is quite important. In other words, it would not be easy for a court to dismiss the language as superfluous; rather, the meaning of the phrase permitted under state and local law is important and should be interpreted with considerable weight by the courts.

RELATED: PACT Act Update: USPS Delays Ban on Shipping Vape Products

So far, few scholars and some law graduates have taken the time to sift through the language of the CSA drug paraphernalia exception, but the requirements of the PACT Act suggest that we should take another look at what drug paraphernalia exactly mean in states that have legalized recreational or medical marijuana.

Emily Burns is a recognized expert on legal, regulatory and policy issues related to cannabis who has worked with a wide variety of individuals and organizations in both the public and private sectors. You can contact Emily at info @.gl-lg.com or (503) 488-5424.

This article originally appeared in the Green Light Law Group and was republished with permission.