Amazon’s prohibited product algorithm gets drug paraphernalia analysis wrong

Amazon’s prohibited product algorithm is creating issues in the ancillary cannabis business space. In doing so it directly contradicts the company’s pro-cannabis public image. On September 26, Seattle Times reporter Lauren Roseblatt wrote an interesting article describing Amazon’s abrupt removal of an herb grinder company’s (“Golden Gate Grinders”) products from its platform last year. The company had been selling its products on Amazon for nine years before the e-commerce behemoth flagged the grinders as drug paraphernalia and removed them “overnight”. This result is clearly out of line with Amazon’s pro-cannabis public statements, which begs the question: what is going on?

What is “drug paraphernalia”?

Despite over 60% of Americans favoring federal legalization of cannabis, the Controlled Substances Act (“CSA”), still classifies cannabis as a schedule I substance. This means that as far as the federal government is concerned the possession, use, and distribution of cannabis or any cannabis paraphernalia is a federal offense. Drug paraphernalia is defined in 21 U.S. Code § 863 as a product “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”. As legal definitions go, this is about as broad as they get.

“Herb” or “Spice” Grinders are indeed commonly used to break up cannabis flower into smaller, finer pieces that make the flower easier to smoke. However, any cooking enthusiast or chef will tell you that herb grinders are commonplace in kitchens and not used for breaking up cannabis—at least not exclusively. It is therefore far from obvious whether a product marketed as an “herb grinder” is properly considered “primarily intended or designed” for using a controlled substance like cannabis. Grinders can be and often are used for non-cannabis related functions, so the argument that they are properly considered drug paraphernalia seems like the weaker case.

Amazon’s pro-cannabis stance v. the case of Golden Gate Grinders

What makes this situation more bizarre than simply an incorrect application of company policy is Amazon’s very vocal, pro-cannabis attitude. Amazon has taken significant and public pro-cannabis positions in recent years, and it was also one of the first Fortune 100 companies to do so. The company has supported several federal legislative efforts to reform cannabis laws. Those efforts include the Marijuana Opportunity Reinvestment and Expungement Act of 2021 (MORE Act), States Reform Act, and the Cannabis Administration and Opportunity Act. In supporting the latter, Amazon’s public policy division stated in a letter to senators, “we believe it’s time to reform the nation’s cannabis policy and Amazon is committed to helping lead the effort”. In June 2021, the company put its money where its mouth is and changed its pre-employment drug screening policy to exclude cannabis testing altogether.

It is hard to reconcile the company’s pro-cannabis attitude with its treatment of vendors like Golden Gate Grinders. But, the company may have a partial excuse in that the culprit is likely an unruly algorithm. Amazon’s policy guidelines prohibit the promotion and sale of drug paraphernalia and are in place to comply with the CSA. Amazon must have guidelines in place to protect itself from liability and prohibiting the sale of illegal drugs or drug paraphernalia on its platform is perfectly reasonable. But the company is far too large to have human beings perform policy guideline compliance. Amazon offers 353 million products for sale and ships 1.6 million packages a day, which is around 66 thousand orders an hour. As the world’s largest e-commerce platform operating at such an extraordinary scale, the role of policing the platform must necessarily be done by AI. This is not meant to excuse what appears to be an unjust result in the case of Golden State Grinders. Rather, it helps identify the problem: for all its utility, AI remains incapable of performing the human functions of exercising judgment and discretion.

In a case involving cannabis-related issues, one would think Amazon would be committed to working with vendors to resolve them and have a policy in place to do so. In the Golden State Grinders case, Amazon should have notified the company that its view of the grinder had changed and allowed an opportunity for remedial action. Immediately shutting down the company’s sole source of revenue after nine years of operating on the platform is unjustifiable and concerning.

What this means for other cannabis-related product manufacturers

Companies that sell products on Amazon’s platform that are tangentially cannabis-related or that are often used by cannabis businesses and users should take note. This is particularly true for companies like Golden Gate Grinders for whom e-commerce sales made up a significant percentage of net sales. The owner of Golden Gate Grinders said Amazon’s action effectively destroyed his business and was quoted in the Seattle Times article as saying “I’m done”.

The Amazon algorithm’s interpretation of what constitutes drug paraphernalia falls on the wrong side of reasonable. After all, we aren’t talking about selling a product as closely related to a controlled substance as a glass pipe. The Golden State Grinders case raises serious questions about whether other products that are used by cannabis businesses and users will suffer a similar fate at the hands of the algorithm. Equally troubling, there appears to be no notice period for perceived violations of Amazon’s guidelines or a mechanism to remedy the issue, other than filing a lawsuit. Most companies simply don’t have the resources to sue one of the wealthiest companies on the planet no matter how strong their case.

Amazon should also be concerned about the results of its algorithm’s policing efforts as in the case of Golden Gate Grinders. The results have, at least in certain cases, not been “equitable”, one of the company’s often quoted justifications for its support of cannabis reform. If Amazon wants to act as pro-cannabis as it says it is, it needs to take a serious look at the enforcement of its prohibited products policy because the algorithm is likely to become a repeat offender if left unattended.