ENF-4-02-OT:RR:BSTC:IPR H013316 AML
Mr. Ramnarayan Aiyer
Mr. John M. Peterson
Neville Peterson, LLP
17 State Street – 19th Floor
New York, New York 10004
RE: Admissibility of Glass Smoking Pipes; Drug paraphernalia; 21 U.S.C. § 863
Dear Messrs. Aiyer and Peterson,
This is in response to your request for a classification and admissibility ruling, dated April 16, 2007, made to the National Commodity Specialist Division, New York, regarding the three styles of glass pipes your client intends to import from India. Your request was forwarded to this office to determine whether the devices constitute drug paraphernalia as set forth in 21 U.S.C. § 863. Samples were provided for our examination.
FACTS:
The National Import Specialist described the merchandise in the transmittal memorandum:
The three samples differ in size, shape and/or design, but appear to be the same in terms of their basic features. Each is a one-piece glass smoking pipe having a small bowl and a carburetor hole. The bottom of each bowl incorporates a small opening leading to a chamber below it. We believe that the chamber may be intended to hold water, which will serve to cool the smoke before it is inhaled by the user. (The opening within the stem of the pipe leads to the chamber, thus allowing the user to draw smoke indirectly, i.e., via the intermediate chamber.)
You describe the merchandise at issue as “glass tobacco pipes” of various sizes, shapes and colors. You state that “the pipes will be imported into the United States solely for sale at retail stores which sell pipe tobacco.”
In support of your claim that the articles are admissible under 21 U.S.C. § 863, you convey the following information on behalf of your client:
Your client’s policy is to sell the merchandise to tobacco retailers, and said policy “makes clear that the sole use of its glass pipes is in conjunction with tobacco, and that any other use is strongly discouraged and subject to criminal penalties.” Your client does not sell directly to consumers, nor are its products offered by mail order, the internet or other sales channels.
The subject pipes are purportedly sold from glass display cases, requiring a purchaser to request a pipe from a retailer. The pipes are purchased with pipe tobacco and they are in sized suitably for storage in a tobacco pouch.
Glass pipes are increasingly being used in private homes, primarily because of tobacco consumption bans in public places.
Glass pipes are superior to metal or ceramic pipes because the latter retain heat and react chemically with combustion, whereas the glass pipes do not.
Glass pipes are superior because the soda-lime and borosilicate glasses are chemically inert, i.e., they do not produce unintended chemicals with combustion, instead producing only tobacco smoke.
The colors of the glass pipes intensify when heated and become more pronounced when resinous deposits accumulate with use.
Glass pipes are sold online by domestic and foreign producers and are advertised with other tobacco pipes by various associations and manufacturers.
Finally, you contend that 21 U.S.C. § 863 “did not intend to exclude glass pipes of this nature being sold in these specific circumstances.”
LAW and ANALYSIS:
The relevant statute, 21 U.S.C. § 863 provides,
(a) In general
It is unlawful for any person--
(1) to sell or offer for sale drug paraphernalia;
(2) to use the mails or any other facility of interstate commerce to transport
drug paraphernalia; or
(3) to import or export drug paraphernalia.
Under 21 U.S.C. § 863(d), the term “drug paraphernalia” is defined as “any equipment, product, or material of any kind 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, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body, such as –
(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2) water pipes;
(3) carburetion tubes and devices;
* * *
(7) chamber pipes;
(8) carburetor pipes;
* * *
(12) bongs[.]
As you acknowledge and CBP stated in Headquarters Ruling Letter (“HQ”) 116316, dated December 9, 2004, in determining whether an item constitutes drug paraphernalia, 21 U.S.C. § 863(e) provides that in addition to all other logically relevant factors, the following may be considered: (1) instructions, oral or written, provided with the item concerning its use; (2) descriptive materials accompanying the item which explain or depict its use; (3) national and local advertising concerning its use; (4) the manner in which the item is displayed for sale; (5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise; (7) the existence and scope of legitimate uses of the item in the community; and (8) expert testimony concerning its use.
Under 21 U.S.C. § 863(f)(2), it is provided that section 863 shall not apply to “any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.”
In Posters 'N' Things v. United States, 511 U.S. 513, 515 (U.S. 1994), in considering the statutory language of the statutory precursor to 21 U.S.C. § 863, the Supreme Court analyzed the statute and the determined that the scienter element of the offense requires the government to demonstrate that the importers knew only that the goods were likely to be used with illegal drugs, rather than having to prove specific knowledge that the goods were “drug paraphernalia as defined by the statute.” (In 1990, Congress repealed § 857 and replaced it with 21 U.S.C. § 863 (1988 ed., Supp. IV); see Crime Control Act of 1990, Pub. L. 101-647, § 2401, 104 Stat. 4858.) The language of § 863 is identical to that of former § 857 except in the general description of the offense. Section 863(a) makes it unlawful for any person “(1) to sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.” Posters 'N' Things v. United States, 511 U.S. 513, 516 (U.S. 1994).
The United States Supreme Court continued at 511 U.S. 513, 518 that:
The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the “designed for use” standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See United States v. Mishra, 979 F.2d 301, 308 (CA3 1992); United States v. Schneiderman, 968 F.2d 1564, 1567 (CA2 1992), cert. denied, 507 U.S. 921, 122 L. Ed. 2d 676, 113 S. Ct. 1283 (1993). Accordingly, the “designed for use” element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
In turning to the article at issue, we conclude, your client’s claims that the implements are intended solely for ingestion of tobacco notwithstanding, that the glass pipes are designed and are “likely to be used for” (see Posters 'N' Things, supra) the ingestion of marijuana. The samples provided are manufactured with an elongated stem which extends from the bowl into the chamber of the glass pipes (see images above and description of “bubblers” below), which is similar in design to a water pipe or bong.
Although your client’s policy is to sell to tobacco retailers for use with tobacco, after sale and importation, your client cannot control to whom and for what purpose such merchandise is sold. That is, your client’s subjective intent regarding the use of the glass pipes does not change the objective fact that such pipes are likely to be used to ingest illicit substances. A web search of the term “tobacco pipe” revealed sites with images depicting more traditional tobacco pipes made of wood, meerschaum and the like. A similar search of the term “glass pipes” produced results oriented toward the ingestion of illicit substances, leading to the conclusion that most glass pipes configured as your client’s are likely to be used as paraphernalia. Hence, the implements fail to satisfy the criteria of 21 U.S.C. § 863(e)(1) – (4), set forth above.
While there is evidence that your client is engaged in the legitimate tobacco products business (21 U.S.C. § 863(e)(5)), and although the glass pipes appear to be marketed as a single enterprise (21 U.S.C. § 863(e)(6)), there is no evidence that there is legitimate use of the product in the community (21 U.S.C. § 863(e)(7)). Finally, there is no expert testimony concerning any lawful use of the product (21 U.S.C. § 863(e)(8)).
HOLDING:
Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of the glass pipes at issue is unlawful and is prohibited. Because their importation is unlawful and prohibited, we are not authorized to return the samples.
This determination is consistent with previous rulings with respect to the admissibility of drug paraphernalia: HQ 116374, dated December 20, 2004, HQ 116316, dated December 9, 2004, HQ 115551, dated February 14, 2002 and HQ 115461, dated August 31, 2001.
If you have any questions regarding this determination, please contact Andrew Langreich of my staff at (202) 572-8776.
Sincerely,
George Frederick McCray, Chief
Intellectual Property and
Restricted Merchandise Branch