HQ H025795
ENF-4-02-OT:RR:BSTC:IPR HQ H025795 RFC
Lawrence W. Hanson, Esquire
One Riverway, Suite 2300
Houston, Texas 77056
RE: Drug Paraphernalia; 21 U.S.C. § 863; Marijuana or Cannabis Grinders
Dear Mr. Hanson:
This letter is in response to your January 30, 2008, dated internal advice request to U.S. Customs and Border Protection (CBP) on behalf of your client, John Roberts Enterprises, Inc. Please note that your request does not qualify as an internal request because it does not involve specific current transactions. See 19 CFR § 177. Moreover, you have not provided sufficient information in order for CBP to determine the correct classification of the merchandise (e.g., specific features, specific composition, and specific size for each model number). Id. Therefore, an advance or pre-importation ruling will not be issued with respect to the classification of the merchandise under the Harmonized Tariff Schedule of the United States. Id.
We note that the record reflects that merchandise similar to that discussed in your request and imported by your client has been seized on the basis that it was considered to be drug paraphernalia. Accordingly, we shall consider whether your client’s merchandise (i.e., “grinders”) constitutes drug paraphernalia for purposes of 21 U.S.C. § 863.
FACTS
The record reflects that the importer is John Roberts Enterprises, Inc., of Pflugerville and Austin, Texas. It imports the merchandise under consideration through the ports of Austin and Houston, Texas.
In your letter, you state, in part, that:
We have been retained by John Roberts Enterprises, Inc. (“Roberts”), to assist them in obtaining advice regarding the correct classification of grinders which Roberts occasionally imports for wholesale and retail sale. Some of the grinders have been seized in the in the [sic] Port of Austin but not in other ports around the country. While these grinders can be used to grind spices, herbs, teas, and tobacco, the majority of the grinders imported by John Roberts are sold to licensed tobacco retailers for use as grinders and blenders of tobacco.
o o o
The grinders imported by Roberts are small, portable, cylindrical devices. They range in diameter from 30 mm (1.18 inches) to 90 mm (3.54 inches), and range in height when closed from approximately ½ inch to 1 ½ inches. The grinders typically consist of two components, a top and a bottom. When joined, the two components form an enclosed area for grinding and/or blending of tobacco. Four-piece grinders include an additional grinding wheel and a screen.
The top and bottom components of the grinders are made of a variety of materials, including aluminum, plastic and marble-like stone. On the inside surface of the top and bottom components are a series of teeth, pins, or other extrusions. These extrusions are typically made of aluminum or steel. Tobacco is inserted into the bottom components, and enclosed with the top component. Twisting the top and bottom components serves to grind the tobacco into smaller pieces, and also to achieve a blend of different types of tobacco.
These grinders are known in the industry as “grinders,” “spice grinders,” “grinders” (of various materials), or “tobacco grinders/blenders.” These different grinders appear to be somewhat interchangeable in their use, so that what one supplier describes as a “spice grinder” may be equally useable for purposes of grinding spices or tobacco.
John Roberts imports a variety of grinders, and sells them through a number of market channels, including through “Evolution.” “Doing business as” Evolution, Roberts possesses a permit to sell cigarettes, cigars, and tobacco products. Accordingly, it does sell the majority of the grinders it imports at wholesale to licensed tobacco and pipe stores. A copy of a flyer for these grinders is attached which provides an image of the exterior and interior of a typical grinder. Roberts also sells a portion of the grinders at its own retail outlet, and also operates a web site for the sale of grinders specifically for herbs and spices (www.grindspice.com). An image from the web site describes the grinders for herb and spice grinding, and shows the interior of a typical grinder.
o o o
The grinders imported by John Roberts are suitable for use as herb and spice grinding as well as tobacco grinding/blending. At the time of importation, Roberts does not know for certain how the grinders will be used by the retailers he supplies, or by ultimate consumers. (Emphasis added.)
o o o
The general characteristics of the grinders are equally suited to grinding herbs, spices or tobacco.
The copy of the above-referenced “flyer for these grinders” does not appear on its face to indicate or designate any materials for which the grinders are to be used or could be used. It merely states: “All Grinders are Engraved with Logo & Come with Drawstring Pouches” and “Quality Precision Grinders Offered Exclusively by Evolution.”
The web site cited in your letter (www.grindspice.com) indicates that it is from “John Roberts Enterprises, Inc.” It contains the following text (referencing herbs, spices and tea but not tobacco) and pictures:
Diamond Grind is a great way to crush your dried herbs before adding them to your favorite recipes. By crushing the herbs, you are releasing flavor and aroma. Simply add your herbs to the grinder and rotate the lid and bottom. The diamond teeth do all the work - the grinder parts are magnetized, so the grinder stays together until your ready to open it. Diamond Grind is dishwasher safe aluminum.
Great for dried herbs such as thyme, basil and oregano
Coarse grind peppercorns
Custom blend dried tea
ISSUE:
Whether the “grinders” under consideration constitute “drug paraphernalia” for purposes of 21 U.S.C. § 863(d).
LAW & ANALYSIS
As concerns what constitutes “drug paraphernalia” for purposes of 21 U.S.C. § 863, the statue, provides, in part, as follows:
(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.
o o o
(d) ``Drug paraphernalia'' defined
The term “drug paraphernalia” means 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, methamphetamine, 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;
(4) smoking and carburetion masks;
(5) roach clips: meaning objects used to hold burning material,
such as a marihuana cigarette, that has become too small or too
short to be held in the hand;
(6) miniature spoons with level capacities of one-tenth cubic
centimeter or less;
(7) chamber pipes;
(8) carburetor pipes;
(9) electric pipes;
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.
(e) Matters considered in determination of what constitutes drug paraphernalia
In determining whether an item constitutes drug paraphernalia, 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.
(f) Exemptions
This section shall not apply to--
(1) any person authorized by local, State, or Federal law to
manufacture, possess, or distribute such items; or
(2) 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.
21 U.S.C. § 863.
In Posters ‘N” Things v. United States, 511 U.S. 513, 114 S. Ct. 1747, 128 L. Ed. 2d 539 (1994), the U.S. Supreme Court had an opportunity to consider the phrase “primarily intended…for use.” Although the court was interpreting the text in former 21 U.S.C. § 857, in 1990, Congress repealed that section of title 21 and replaced it with the 21 U.S.C. § 863, which is indicated in Posters ‘N’ Things to be identical to current section 863. See Crime Control Act of 1990, Pub. L. 101-647, § 2401, 104 Stat.4858. See also, 21 U.S. at 516, n. 5; United States v. Search of Music Marketing, Inc., 212 F.3d 920, 925 (6th Cir. 2000).
In Posters ‘N’ Things, the court concluded that the phrase “primarily intended…for use” is to be understood objectively and refers generally to an item’s likely use. 21 U.S. at 521. Moreover, the court noted that this “is a relatively particularize definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features.” 21 U.S. at 521, n. 11. Additionally, the court stated that “items ‘primarily intended’ for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” 21 U.S. at 521-22, n. 11. Therefore, items having possible multiple uses can constitute drug paraphernalia for purposes of 21 U.S.C. § 863 if the likely use by customers of the seller of the items is for use with drugs.
An Internet search reveals a vast number of advisements relating to grinders similar to those imported by John Roberts Enterprises, Inc. for use with marijuana or cannabis. See, e.g., www.marijuanagrinder.com. Moreover, several references were found on the Internet also relating to such grinders for use with marijuana or cannabis. They include the following ones:
A herb grinder (also called a "bud-buster", or just a "grinder") is a cylindrical contraption with two halves (top and bottom) that separate and have sharp teeth or pegs aligned in such a way that when both halves are turned, material placed inside is effectively shredded.
Some grinders also have two or three compartments instead of just one, with a fine screen separating the bottom compartment from the top. This allows fine particles such as pollen to pass through, but blocks larger plant material. Grinders are typically associated with the use of cannabis, as they are a popular way of preparing the psychoactive herb to be smoked and/or vaporized. (Emphasis added.)
A grinder containing a small amount of cannabis.
(Picture and text from www.wikipedia.org)
See www.wikipedia.org
Herb grinders, as the name suggests, help in grinding herbs. The herbs may be anything like flowers, leaves, roots, barks, or anything having medicinal properties. They are also used to grind tobacco, marijuana and other plant-based drugs. (Emphasis added.) Herb grinders may be made out of wood, aluminum, polycarbonate steel, and plastic. Herb grinders may be operated manually, by means of batteries, or by electric current. Twisting is the operation done in all types. They grind the herbs, extract the essence of the herbs, and segregate the residue. The speed of the operation and the duration of the operation may be controlled according to your choice.
See www.e-grinders.com
The term “grinder” is defined as: “1. a container filled with small nails or little poles fitted into the insides to help grind marijuana up to make rolling blunts easier. Will often come with a keef screen so you can pack keef on top” and “2. a device, usually made of plastic, steel, or wood, that is used to grind up marijuana.” (Emphasis added.)
See www.urbandictionary.com
An “underground” use, if you will, for herb grinders is to chop cannabis to prepare it for smoking, similar to the way pipe smokers would chop tobacco. These grinders have come to be nicknamed “bud busters” because they break up flower buds of the marijuana plant. (Emphasis added.)
See gardening.savvy-cafe.com
In light of the above, it is quite clear that there is a very large and extensive market for grinders similar to those imported by John Roberts Enterprises, Inc. that are purchased for use with marijuana or cannabis (i.e., to grind and chop the plant particles for smoking).
In your submission, you allege that the majority of the grinders that John Roberts Enterprises, Inc. imports are sold to licensed tobacco retailers for use as grinders and blenders of tobacco. No evidence was submitted to establish or substantiate this allegation (i.e., (1) the above-referenced flyer does not indicate or designate any materials for which the grinders are to be used or could be used and (2) the above-referenced web site (www.grindspice.com) references use of the grinders with herbs, spices and tea—tobacco is not referenced in either case). In fact, you have not submitted any evidence to show or establish the likely or primary intended use of the imported grinders by the customers who purchase them from or through John Roberts Enterprises, Inc. or from or through John Roberts Enterprises, Inc.’s retail customers and affiliates. In deed, as referenced above, you state in your submission that “[a]t the time of importation, Roberts does not know for certain how the grinders will be used by the retailers he supplies, or by ultimate consumers.” Finally, the record does not show or establish that the merchandise is traditionally intended for use with tobacco products. See 21 U.S.C. § 863(f).
As shown above, it is quite evident that from the vast numbers of advertisements and references on the Internet relating to these types of grinders, they are likely sold and bought for use with marijuana or cannabis. This is a relevant factor to consider in determining whether the grinders under consideration constitute drug paraphernalia. See 21 U.S.C. § 863(e) (Logically relevant factors may be considered in determining whether an item constitutes drug paraphernalia.). Moreover, as indicated above, no evidence was submitted in the instant case to show or establish the likely use or intended primary use of the grinders by the customers who purchase them. Id. Upon review, then, we must conclude that the grinders under consideration are likely or primarily intended for use with marijuana or cannabis (i.e., to grind and chop the plant particles for smoking) by the customers who purchase them from or through John Roberts Enterprises, Inc. or from or through John Roberts Enterprises, Inc.’s retail customers and affiliates. Therefore, although the grinders may have multiple uses, they constitute drug paraphernalia. 21 U.S.C. § 863(d); See also, Posters ‘N’ Things, 21 U.S. at 521-22, n. 11 (“[I]tems ‘primarily intended’ for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.”).
CONCLUSION
The above-referenced grinders constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). Therefore, the grinders are unlawful and their importation is prohibited. 21 U.S.C. § 863(a). Any future importations of the grinders will be subject to seizure. 19 U.S.C. § 1595a(c).
Sincerely,
George Frederick McCray, Chief
Intellectual Property Rights & Restricted
Merchandise Branch