ENF-4-02-OT:RR:BSTC:IPR H030458 AML
Port Director
U. S. Customs and Border Protection
301 East Ocean Blvd.
Long Beach, CA 90802
Attn.: Team 733
RE: Protest # 2704-08-101223; Admissibility of “Solopipe”®; Drug paraphernalia; 21 U.S.C. § 863
Dear Port Director:
This is in response to protest 2704-08-101223, filed by counsel on behalf of the petitioner, Rocket Entertainment, LLC (hereinafter “petitioner” or “Rocket”), which pertains to the March 19, 2008 demand for redelivery made by your port, regarding what counsel argues to be “tobacco pipes” marketed and sold under the name “Solopipe”®. A brief with exhibits was submitted for our consideration. Also considered were arguments made via teleconference and counsel’s supplemental submission dated August 27, 2008.
FACTS:
We paraphrase counsel for protestant’s description of the merchandise as follows:
The Solopipe® is a new and unique product, designed as an “integrated smoking device (the device has a built in lighter) for holding tobacco and a duct for drawing smoke like a pipe.”
Images of the implement from the official website.
The name Solopipe® is a registered trademark and a patent application has been filed for its design. Rocket imports and sells the Solopipe® domestically to an exclusive distributor. The article is sold both to retail stores and to individuals via the internet.
Counsel for protestant alleges that the product is a self-contained smoking apparatus that is intended for use with tobacco. Referring to the official Solopipe® and other websites, counsel states that the article “contains a ¾ inch deep bowl which accommodates tobacco up to the equivalent of more than one half of one cigarette.” Counsel adds that the Solopipe® is sold to tobacco shops and tobacco product distributors, can be purchased online by individuals, is marketed in periodicals of national circulation as being intended for use with tobacco, and that its distributor participates in national trade shows for tobacco-related products.
Counsel contends that, with regard to CBP’s demand for redelivery (which was based upon the determination that the product is similar to an article previously determined by CBP to be paraphernalia under 21 U.S.C. § 863, see below), that port personnel did not consider the factors set forth in 21 U.S.C. § 863(e) or the exemption from the statute’s prohibition for products used with tobacco set forth in § 863(f) (both subsections are also set forth below). Counsel contends that the Solopipe®, in consideration of the factors and exemption mentioned above, is not prohibited paraphernalia and that 21 U.S.C. § 863 does not preclude entry of the article into the United States.
Specifically, counsel makes the following contentions regarding the factors set forth at 21 U.S.C. § 863(e):
That the Solopipe® is marketed solely as a tobacco pipe on its website: www.solopipe.com, in purported satisfaction of criteria 1 and 2; and the advertising for the article refers exclusively to its use as a tobacco smoking implement in purported satisfaction of criteria 3 and 4;
That the exclusive U.S. distributor, JMJL, Inc., participates in national trade shows for tobacco products, and is a member of tobacco trade associations; the exclusive distributor is engaged in the legitimate business of tobacco distribution in purported satisfaction of criterion 5;
Testimonials from handicapped users extolling the design of the Solopipe which enables use in one hand in purported satisfaction of criterion 7.
Counsel contends that the article is distinguishable from various implements which have been previously determined by CBP to be paraphernalia under 21 U.S.C. § 863, emphasizing the Solopipe’s® lack of a carburetor or “carb”, and emphasizing the constituent materials as contrasted to other smoking devices previously determined to be prohibited paraphernalia.
Counsel concludes that CBP’s demand for redelivery (based upon the conclusion that the Solopipe® is prohibited paraphernalia) is speculative and urges CBP to allow its entry.
Our independent search of the internet revealed the following information (all sites last visited on September 3, 2008):
That JMJL, Inc., the exclusive distributor of the Solopipe®, markets “the revolutionary Prizm transparent rolling paper, Prizm Flavored Transparent Rolling Paper, EZ Splitz, and the new revolutionary Solopipe® Lighter.” See http://www.alibaba.com/company/10933084.html.
The EZ Splitz is a device for cutting “blunts.” See www.ezsplitz.com/ and http://forum.grasscity.com/seasoned-tokers/237039-ez-splitz.html. See also http://www.cigaradvisor.com/ qa.cfm?id=88:
A “blunt” is made by taking something like a Phillies Blunt (any machine-made convenience store cigar will do), unrolling or splitting it open, removing the tobacco, replacing it with marijuana, and rolling it up again in the wrapper leaf which is often a “homogenized wrapper” made from bits of tobacco leaf and rolled into big sheets like paper bolts.
See also: http://www.oas.samhsa.gov/2k7/mjBlunts/mjBlunts.cfm.
Similarly, a search of the term “JMJL” also revealed a reference to “JMJL Global Inc. Dba The Clear Choice Worldwide” at http://www.tobaccoplusexpo.com/2007-PDF-Files/Exhibitors-Brochure.pdf, one of the tobacco expositions counsel for protestant cites as evidence demonstrating the legitimacy of JMJL as exclusive distributor. A visit to www.tccworldwide.com reveals not only that The Clear Choice Worldwide/TCC and JMJL operate in the same town in California, but also that, in addition to the Solopipe®, blunt cutters and splitters, clear and flavored rolling papers, the site also offers for sale wired rolling papers, articles listed as paraphernalia in 21 U.S.C. § 863(d)(14).
2. A search of the term Solopipe® produced results lauding the device for its use as an implement for ingesting marijuana:
See, e.g., http://shop.grasscity.com/shop/grasscity/misp059.html; see also http://the-gadgeteer.com/review/solopipe_self_igniting_tobacco_pipe:
I’m sure the HighTimes crowd can find gnarly uses for the Solopipe, as it seems that’s who it’s primarily aimed at. Solopipe mentions in their advertising that the handicapped or disabled can use the pipe since it is able to be operated with one hand. I guess I can see a certain medicinal use for this gadget. Especially by cancer patients who suffer from severe nausea and weakness while undergoing chemotherapy. However, I imagine arthritis sufferers would have a tough time trying to operate the Solopipe.
Say that reminds me, I know of a guy in Houston that would really enjoy this gadget! Especially at 4:20pm everyday, cough-cough. Now I know there are people that have legitimate medical needs for the wacky tobaccy, but he’s not one of them! Ah, but I divagate.
See also: http://gizmodo.com/gadgets/put-yer-weed-in-it/solopipe-self+igniting-bowl-lets-the-good-times-roll-273142.php: “No more fumbling around for a lighter with the brand new Solopipe, the self-lighting pipe that lets you put your weed in its bowl, slide the lid over it, and then you can carry around your own personal mobile smoking station right there in your pocket[,]”, and http://boards.cannabis.com/medical-marijuana-methods/147446-solopipe.html.
We note that the notice for redelivery was prompted by the perceived similarity of the Solopipe® to the article subject of Headquarters Ruling (“HQ”) 114968, dated May 2, 2000. In that ruling, CBP determined that “a smoking assembly which holds a pipe, lighter and smoking material” which “assembly will allow the lighter, pipe, and smoking supply to be carried in a single unit,” with dimensions that “permit ready transport in either a shirt or jacket pocket” constituted prohibited paraphernalia pursuant to 21 U.S.C. § 863.
In the supplemental submission, counsel for protestant contends that use of the screens in the Solopipe® (“Your Solopipe tool kit comes with 3 extra screens.” See www.solopipe.com, “How to clean your Solopipe”) is optional, based on the preference of the ultimate purchaser. Counsel adds that use of the screens prevents the buildup of ash cake (ash cake which builds up over time and enhances the flavor of tobacco used by smokers). Counsel surmises that the screens prevent the escape and inhalation of hot embers from the bowl of the implement to the mouth of the user. Finally, counsel contends that the use of the screens will lessen the frequency of maintenance cleaning of the implement by keeping the stem clear of resin and other debris.
Counsel further contests our interpretation of Posters 'N' Things v. United States, 511 U.S. 513 (U.S. 1994) vis-à-vis the purpose of 21 U.S.C § 863. Counsel states that the Supreme Court “specifically discussed the difference between the “possibility” that an article might be used in an illegal manner and the “likelihood” that it might be so used.” We address those contentions below.
Counsel contests our conclusion that JMJL, the wholesale distributor of the Solopipe®, is a purveyor of drug paraphernalia. Counsel states that JMJL and “the wholesalers to which it sells the Solopipe for ultimate retail sale to consumers, are legitimate sources of distribution.”
Finally, counsel argues that “unless Customs has tangible evidence showing general use of the Solopipe® is for the introduction of illegal drugs into the human body, Customs must accept the evidence [counsel] submitted showing that the Solopipe® is generally used for smoking tobacco.”
LAW AND ANALYSIS:
Initially we note that the matter protested is protestable under 19 U.S.C. §1514(a)(4) as a decision on the demand for redelivery of merchandise to CBP custody. The protest was timely filed on April 17, 2008, within 180 days of liquidation of the entry on February 26, 2008, and the March 19, 2008 demand for redelivery, pursuant to 19 U.S.C. §1514(c)(3) (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006).
As you are aware, 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:
[A]ny 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;
* * *
(7) chamber pipes [.]
As asserted by the protestant and as CBP acknowledged most recently in Headquarters Ruling Letter (“HQ”) H024722, dated June 10, 2008, 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.”
The demand for redelivery was based on the perceived similarity between the Solopipe® and the article at issue in HQ 114968. In HQ 114968, CBP ruled on a “smoking assembly” that held a pipe, lighter and smoking material. (The device was marketed as a “One hitter,” which is variously defined as single, chambered device for ingesting marijuana; see http://en.wikipedia.org/wiki/Dugout_(smoking);see also United States v. Search of Music City Mktg., Inc., 212 F.3d 920, 922, footnote 1 (6th Cir. Tenn. 2000) (“The “dug outs” and “SmokeLess Smoking Systems” consisted of a hollow wood or plastic box with a covered compartment in which the smoking material could be stored and another covered storage compartment in which a hollow metal or ceramic cigarette shaped “bat” was kept. When the cover was moved to expose the bat, a spring would partially eject it for smoking.”) The smoking pipe, made of brass, was cylindrical and measured 3 1/2 inches in length. The pipe bowl was in line with the pipe stem and was removable from the carrying case of the device. CBP determined that the small bowl was suitable only for small amounts of material consistent with the ingestion of controlled substances, and concluded that there were reasonable grounds for believing that the article was drug paraphernalia. We note that the brass portion of the device resembles a “chillum”; an article designated to be paraphernalia within the statute at 21 U.S.C. § 863(d)(11); see also the reference to “bats” at the website referred to above.
Below is a schematic drawing of the device at issue in HQ 114968:
We conclude, based on the description of the device in HQ 114968 and the image above, that the Solopipe® is not similar to the article determined to be prohibited paraphernalia therein. Therefore, this determination concerning the admissibility of the Solopipe® is not controlled by that ruling.
Nevertheless, we consider the admissibility of the Solopipe® in accordance with 21 U.S.C. § 863 and the relevant case law.
In Posters 'N' Things v. United States, 511 U.S. 513 (U.S. 1994), in considering the language of the statutory precursor to 21 U.S.C. § 863, the United States 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.” Via footnote 5, the Supreme Court noted that “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 Court continued at 511 U.S. 513, 518:
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 reaching this conclusion, the Supreme Court reasoned that:
Several considerations lead us to conclude that “primarily intended . . . for use” refers to a product’s likely use rather than to the defendant’s state of mind.
First, the structure of the statute supports an objective interpretation of the “primarily intended . . . for use” standard. Section 857(d) states that drug paraphernalia “includes items primarily intended or designed for use in” consuming specified illegal drugs, “such as . . . ,” followed by a list of 15 items constituting per se drug paraphernalia. The inclusion of the “primarily intended” term along with the “designed for use” term in the introduction to the list of per se paraphernalia suggests that at least some of the per se items could be “primarily intended” for use with illegal drugs irrespective of a particular defendant's intent -- that is, as an objective matter. Moreover, § 857(e) lists eight objective factors that may be considered “in addition to all other logically relevant factors” in “determining whether an item constitutes drug paraphernalia.” These factors generally focus on the actual use of the item in the community. Congress did not include among the listed factors a defendant’s statements about his intent or other factors directly establishing subjective intent. This omission is significant in light of the fact that the parallel list contained in the Drug Enforcement Administration's Model Drug Paraphernalia Act, on which § 857 was based, includes among the relevant factors “statements by an owner . . . concerning [the object’s] use” and “direct or circumstantial evidence of the intent of an owner . . . to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act.” Posters 'N' Things v. United States, 511 U.S. 513, 519-520 (U.S. 1994)(footnotes omitted)[Italicized emphasis added].
We find the following language of the Supreme Court, discussing the requisite knowledge of sellers of paraphernalia, to be instructive in the instant matter:
[W]e conclude that a defendant must act knowingly in order to be liable under § 857. Requiring that a seller of drug paraphernalia act with the “purpose” that the items be used with illegal drugs would be inappropriate. The purpose of a seller of drug paraphernalia is to sell his product; the seller is indifferent as to whether that product ultimately is used in connection with illegal drugs or otherwise. If § 857 required a purpose that the items be used with illegal drugs, individuals could avoid liability for selling bongs and cocaine freebase kits simply by establishing that they lacked the “conscious object” that the items be used with illegal drugs. [Italicized emphasis added.]
Further, we do not think that the knowledge standard in this context requires knowledge on the defendant’s part that a particular customer actually will use an item of drug paraphernalia with illegal drugs. It is sufficient that the defendant be aware that customers in general are likely to use the merchandise with drugs. Therefore, the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs. Cf. United States Gypsum, 438 U.S. at 444 (knowledge of “probable consequences” sufficient for
conviction). n13 A conviction under § 857(a)(1), then, requires the Government to prove that the defendant knowingly made use of an interstate conveyance as part of a scheme to sell items that he knew were likely to be used with illegal drugs. [Italicized emphasis added.]
Finally, although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are “drug paraphernalia” within the meaning of the statute. [Italicized emphasis added.] Cf. Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974) (statute prohibiting mailing of obscene materials does not require proof that defendant knew the materials at issue met the legal definition of “obscenity”). As in Hamling, it is sufficient for the Government to show that the defendant “knew the character and nature of the materials” with which he dealt. Id., at 123. Posters 'N' Things v. United States, 511 U.S. 513, 524-525 (U.S. 1994).
21 U.S.C. § 863 and Posters 'N' Things, supra, were discussed and applied in United States v. Search of Music City Marketing, Inc. (hereinafter “Music City”), 212 F.3d 920 (2000). In Music City, the United States Court of Appeals for the Sixth Circuit affirmed the district court's holding that seized merchandise was drug paraphernalia that as contraband could not be returned to Music City. At issue was merchandise seized pursuant to a search warrant by U.S. Customs Agents. Defendant Music City “argue[d] that the statute is unconstitutionally vague as applied to the items of inventory seized by the government in 1998.” 212 F.3d 920, 923. In analyzing 21 U.S.C. § 863, the Court stated that:
As an aid in determining whether particular items are drug paraphernalia, parts (d) and (e) provide detail. Part (d) lists items that generally qualify as drug paraphernalia “per se” and part (e) contains a non-exhaustive list of eight factors to consider while evaluating the items at issue. Id.
[S]ome of Music City’s arguments appear to challenge the district court's factual finding that the pipes and other items at issue qualified as drug paraphernalia under the statute. To the extent that Music City has made this argument, we affirm the district court. After conducting a two day evidentiary hearing, the district court individually evaluated each item at issue in detail. The court considered: descriptive material included with some of the seized items, the fact that Music City’s retail stores sold legitimate tobacco products, testimony from multiple witnesses, advertised and actual uses of the items in the community, a treatise defining slang terms, and expert testimony concerning the items’ uses. With regard to the pipes, the court credited Custom Agent Mangione’s expert testimony as to their use in the community and their design characteristics. Agent Mangione had been involved with drug paraphernalia investigations since 1989 and had extensive training and experience dealing with drug paraphernalia. The court observed that Agent Mangione testified as to the various pipes’ design characteristics that were more consistent with marijuana than tobacco use, including an invariably small bowl size, bowl covers without holes, lack of traditional mouthpieces and stems, lack of filters, and the fact that some of the pipes were constructed of material that would become too hot to hold in one’s mouth if smoked for any length of time . . . With respect to the metal screens, the court noted that Agent Mangione testified that they were commonly used in small marijuana pipes to keep seeds and stems from being sucked into the smoker’s throat, but were not used in traditional tobacco pipes . . . Based on this evidence, the court concluded that the items at issue were primarily intended or designed for use with controlled substances. Under these circumstances we cannot say that the district court erred in arriving at this conclusion. C.f. 57, 261 Items of Drug Paraphernalia, 869 F.2d at 958-59 (evaluating the evidence considered by the district court and concluding the court had not erred in concluding that the items at issue qualified as drug paraphernalia and thus were properly subject to civil forfeiture under the Customs Statute). United States v. Search of Music City Mktg., Inc., 212 F.3d 920, 928 (6th Cir. Tenn. 2000).
In turning to the article at issue, we consider first the nature of tobacco pipe smoking, given the exception in 21 U.S.C. § 863(f)(2) for (paraphrased) items traditionally intended for use with tobacco products, including any pipe.
The customs, vocabulary and etiquette that surround pipe smoking culture vary across the world and depend both on the people who are smoking and the substance being smoked.
For example, in the Western world, tobacco pipe smoking has sometimes been seen as genteel or dignified and has given rise to a variety of customized accessories and even apparel such as the smoking jacket, and the Pipe Smoker of the Year award in the UK. From http://en.wikipedia.org/wiki/Smoking_pipe.
See also, http://www.notsoboringlife.com/pipe-smoking/guide-to-pipe-smoking/:
Pipe smoking is really all about relaxation. Since tobacco was discovered it’s been a favorite pastime of men and now some women find themselves smoking a pipe. There are really only 3 ways to smoke tobacco: cigarettes, cigars, and the pipe. The tobacco pipe is the only option which gives the smoker a lasting sense of pleasure and a total state of relaxation.
A pipe is similar to a fountain pen or a fine time piece. It truly is a thing of beauty. Some even call a well-crafted pipe a work of art. It’s a pleasure to hold, inspect, perhaps tell a story about, and demands a certain amount of respect.
A web search of the term “tobacco pipe” revealed sites with images depicting more traditional tobacco pipes made of wood, meerschaum and the like (see, e.g., http://www.smokingpipes.com/pipes/new/tonni-nielsen/index.cfm). A similar search of the term “Solopipe®” (see the “Facts” section, supra) produced a significant number of results oriented toward the ingestion of illicit substances, viz. marijuana, leading to the conclusion that “all-in-one” pipes configured as protestant’s are likely to be used as paraphernalia.
Counsel for protestant objects to our reliance upon the “anecdotal” evidence gleaned from the internet searches described herein, especially as they pertain to the use of the Solopipe® as a marijuana pipe, arguing that it is incumbent upon CBP to review the 17,000 plus search results containing the word “Solopipe®” before concluding that those internet “hits” demonstrate use of the article. While we have not reviewed all of the search results, the initial ten pages of results we have reviewed demonstrate that the majority of references to the Solopipe® refer to it as a device for smoking marijuana. Short of actually witnessing the article in use, we conclude that these references suffice to establish the use of the Solopipe® as an implement to ingest marijuana.
The following conclusion made in HQ H013316, dated March 10, 2008, is appropriate here:
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. HQ H013316 at 4.
While counsel for protestant has provided evidence that the Solopipe® is advertised on the official website as being intended for use with tobacco products and that the descriptive materials accompanying the item which explain or depict its use with tobacco, there is a significant number of references to use of the article for ingesting marijuana. Likewise, although evidence has been presented by counsel for protestant which refer to national and local advertising concerning use of the Solopipe® with tobacco, given that the article is widely available for sale on the internet and the references for use found there are predominantly associated with marijuana use, such advertisements are undermined by those references. We reach a similar conclusion with regard to the manner in which the item is displayed for sale, viz. given that the article is widely available for sale on the internet, and the references for use found there are predominantly associated with marijuana use, such displays for sale are outweighed by the references on the JMJL and TCC websites to goods which can only be described as paraphernalia. Hence, while arguendo the Solopipe® satisfies criteria 1 and 2, 21 U.S.C. § 863(e)(1) and (2), the implements fail to satisfy the criteria of 21 U.S.C. § 863(e)(3) – (4), set forth above.
Counsel for protestant concedes that Rocket Enterprises is not exclusively engaged in the legitimate tobacco products business; however, counsel alleges that its exclusive distributor is engaged in the legitimate tobacco products business. Notwithstanding these assertions, we conclude from the websites cited above that the exclusive distributor, TCC/JMJL, is a purveyor of flavored and wired rolling papers and “blunt” splitters and cutters, goods which, at least in the case of the wired rolling papers and “blunt” tools, can only be considered to be paraphernalia. The Solopipe®, offered for sale in association with other paraphernalia on what is tantamount to an online “head shop,” therefore fails to meet the criteria set forth at 21 U.S.C. § 863(e)(5).
Although the Solopipe® appears to be marketed as a single enterprise (21 U.S.C. § 863(e)(6)), and there is some evidence (see the testimonials referred to in the “Facts” section above) that there is legitimate use of the product in the community (21 U.S.C. § 863(e)(7)), the evidence of legitimate use is contradicted by the numerous references to the use of the Solopipe® as an implement for ingesting marijuana. 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.
While the Solopipe® can be used to smoke tobacco, it appears to be actually associated with, virtually (i.e., on the internet) displayed, purchased and likely to be used as paraphernalia to ingest marijuana.
Finally, as protestant concedes, there is no expert testimony concerning any lawful use of the product (21 U.S.C. § 863(e)(8)).
In contrast to traditional tobacco pipes, the Solopipe® is made of metal, equipped with screens, is pocket-sized and easily concealable, characteristics found by the court in Music City, supra, to be those of paraphernalia. The retractable cover for the bowl, touted on the protestant’s website as preventing tobacco from falling into the user’s pocket, can also be used to conceal the contents of the bowl or prevent excess smoke from escaping the pipe. Screens are associated with marijuana pipes; not tobacco pipes. Id. While we are cognizant that the statute contemplates pipes intended for use with tobacco and that innovation in such articles should be accommodated, we conclude, the protestant’s claims that the Solopipe® is intended solely for ingestion of tobacco notwithstanding, that the implement is “likely to be used for” (see Posters 'N' Things, supra) the ingestion of marijuana.
HOLDING:
Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of the pipes at issue is unlawful and is prohibited.
The protest should be DENIED.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.
Sixty (60) days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
If you have any questions regarding this determination, please contact Andrew Langreich of my staff at (202) 572-8776.
Sincerely,
George Frederick McCray, Chief
OT IPR and Restricted Merchandise Branch