ENF-4-02-OT:RR:BSTC:IPR H024722 AML
Mr. Nohemy Valdivieso
Nohemy Customs Brokers, Inc.
11222 La Cienega Blvd., Suite 135
Inglewood, CA 90304
RE: Inhale, Inc.; Three styles of pipes; Drug paraphernalia; 21 U.S.C. § 863
Dear Mr. Valdivieso,
This is in response to your request for a classification ruling, dated January 10, 2008, on behalf of Inhale, Inc., made to the National Commodity Specialist Division, New York, regarding three products you describe as “tobacco smoking pipes”. Your request was forwarded to this office to determine whether any of the devices constitute drug paraphernalia as set forth in 21 U.S.C. § 863, such that they are precluded from admission into the United States. Samples were provided for our examination.
FACTS:
You describe the articles at issue as “tobacco smoking pipes” which are comprised of wooden bodies with plastic mouthpieces.
The first sample pipe features a one-piece wooden bowl/stem with a plastic mouthpiece. The pipe measures approximately 4 1/8 inches in length by ¾ of an inch in maximum width by 9/16 of an inch in maximum thickness. Its cylindrical bowl is approximately 3/8 of an inch in diameter by 3/8 of an inch deep. This model is shown here:
The second sample pipe features a wooden bowl and stem with a hinged, wooden bowl cover and an attached plastic mouthpiece. This model measures approximately 4 ½ inches in length by ¾ of an inch in maximum width by 1 inch in maximum thickness. Its cylindrical bowl is approximately ½ of an inch in diameter by 9/16 of an inch in depth. This model is shown here:
The third sample pipe features a wooden bowl with an attached plastic stem/mouthpiece. The pipe measures approximately 4 ¾ inches in length by 1 inch in maximum width by 1 inch in maximum thickness. Its cylindrical bowl is approximately 9/16 of an inch in diameter by 15/16 of an inch deep. This model is shown here:
ISSUE:
Whether the pipes at issue are admissible into the United States pursuant to 21 U.S.C. § 863?
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;
* * *
(3) carburetion tubes and devices;
* * *
(7) chamber pipes[.]
* * *
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.
21 U.S.C. § 863(f)(2) provides 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 (U.S. 1994), the Supreme Court of the United States, in considering the language of the statutory precursor to 21 U.S.C. § 863, analyzed the statute and 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.” Id. at 515. (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. Id., 511 U.S. 513, 516 (U.S. 1994).) 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.” Id.
The Supreme Court continued at 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 articles at issue, other than the description of the articles as “tobacco smoking pipes,” there has been no evidence presented that addresses the “logically relevant” factors set forth in 21 U.S.C. § 863(e), set forth above. The first sample (in order of presentation above) is manufactured with a “small bowl, which is suitable only for small amounts of material consistent with the ingestion of controlled substances, [and] leads us to find reasonable grounds for believing that” the first model is an article of drug paraphernalia. See Headquarters Ruling (HQ) 114967, dated April 7, 2000, citing HQ 459156, dated December 18, 1995. Further, the second sample is equipped with a small bowl, similar in size to the first, and is manufactured with a hinged cover which can be used to conceal the substance being stored or used in the pipe.
With regard to the third sample provided (and pictured third in the order above), although it resembles a more traditional tobacco pipe in shape, it is, like the other two models, of a smaller size than conventional pipes for tobacco smoking. In this regard, we are persuaded by the rationale of the Supreme Court in Posters 'N' Things, supra, as quoted in United States v. Marshall, 332 F.3d 254, 260 (4th Cir. Md. 2003), that:
the Court noted that the “objective” nature of the definition of “primarily intended” reached “beyond the category of items that are likely to be used with drugs by virtue of their objective features,” [Posters 'N' Things,] at 521 n.11, and included, under certain circumstances, mixed-use items. . . “Thus, while scales or razor blades as a general class may not be designed specifically for use with drugs, a subset of those items in a particular store may be ‘primarily intended’ for use with drugs by virtue of the circumstances of their display and sale.” Id.
Despite its traditional appearance, and given its comparatively small size and capacity, and the fact that it is sourced from the supplier of the other two models of what appear to be marijuana pipes, we are persuaded that this model too is an article of drug paraphernalia.
We conclude, your characterization that the implements are intended solely for smoking tobacco notwithstanding, that the pipes at issue are designed and are “likely to be used for” (see Posters 'N' Things, supra) the ingestion of marijuana. A web search of the term “tobacco pipe” revealed sites with images depicting more traditional tobacco pipes made of wood, meerschaum and the like, in sizes that are less susceptible to being easily concealed. Hence, the implements fail to satisfy the criteria of 21 U.S.C. § 863(e)(1) – (4), set forth above. There is no evidence that your client is engaged in the legitimate tobacco business (21 U.S.C. § 863(e)(5)), and although the pipes appear to be marketed as part of a single enterprise (21 U.S.C. § 863(e)(6)), there is no evidence that there is legitimate use of any of the products in the community (21 U.S.C. § 863(e)(7)). Finally, there is no expert testimony concerning any lawful use of the products (21 U.S.C. § 863(e)(8)).
HOLDING:
Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of such articles 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 Rights and
Restricted Merchandise Branch