HQ H041682
ENF-4-02-OT:RR:BSTC:IPR H041682 RFC
Edward L. Earle
HBI International
3315 W. Buckeye Road, Suite B
Phoenix, AZ 85009
RE: Drug Paraphernalia; 21 U.S.C. § 863; Blunts; Blunt Wraps; Blunt Wrappers; Marijuana or Cannabis
Dear Mr. Earle:
This letter is in response to your September 11, 2008, dated request to U.S. Customs and Border Protection (CBP) on behalf of your company, BBK Tobacco & Foods, LLP, dba, HBI International (Phoenix, Arizona). In your request, you seek an advance or pre-importation ruling with respect to the classification of certain blunt wraps or blunt wrappers under the Harmonized Tariff Schedule of the United States (HTSUS). Please note that as we have determined below that the merchandise that is the subject of your ruling request to be prohibited and inadmissible merchandise, an advance or pre-importation ruling will not be issued with respect to the classification of the merchandise under the HTSUS. See 19 CFR 177.7(a) (No ruling letter will be issued in response to a request for a ruling in any instance in which it appears contrary to the sound administration of the Customs and related laws to do so.).
FACTS
In your letter, you state, in part, that:
I am writing on behalf of BBK Tobacco & Foods, LLP dba HBI International (“HBI”). HBI’s address is listed above and the merchandise referenced below will be entered in either Los Angeles, CA or Phoenix, AZ. This ruling request is in regards to a prospective importation of homogenized tobacco wrappers from the Dominion Republic or the Philippines. To HBI’s knowledge, there are no issues on the commodity pending before the Customs Service [sic] or any court.
I am writing to request a tariff classification ruling for the enclosed blunt wrapper samples. Enclosed are various types of blunt wrappers packaged in either a foil-type sleeve or a tube-shaped plastic container. The samples are identified as JUICY Blunts, KINGPIN Blunts and CYCLONE Blunts. These products are principally used in the United States for a consumer to use to make his own cigar. However, none of the referenced products can be smoked alone as a cigar or cigarette. It is important to note this distinction since these products are more accurately identified as a cigar wrapper rather than an actual cigarette or cigar.
The products referenced above consist of approximately [ ]% volatiles, [ ]% extractives, [ ]% wood fiber content, [ ]% inorganic ash and [ ]% tobacco fiber content. Overall, tobacco-wrapping papers were comprised of (1) volatiles—which included alcohol-based flavorings and water moisture; (2) extractives—which included non-volatile flavorings, added sugars and glues; (3) wood fiber—which was in the form of tree-based kraft pulped softwood and hardwood; (4) inorganic ash—which included filler such as calcium carbonate and clay added to the wrap during the paper marking process; and (5) tobacco fiber—which originated from national tobacco leaf, which was added during the paper making process.
Three samples of the merchandise were received in this office with the request. The samples are identified as follows: (1) “Juicy Double Blunts” (Made in the Dominican Republic: ); (2) “Kingpin Premium Blunts” (Made in the Dominican Republic: ); and (3) “Cyclones Pre Rolled Cone Blunts” (Made in the Philippines: ).
PICTURES OF THE THREE SAMPLES
ISSUE:
Whether the “blunt wraps” or “blunt wrappers” 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 particularized 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 number of web sites that sell or advertise or promote blunt wraps or blunt wrappers similar to those imported by HBI International that also sell or advertise or promote other items likely for use with drugs. See, e.g., www.monstersmokeshop.com.
In addition to the many above-mentioned web sites offering for sale or advertising or promoting blunt wraps or blunt wrappers, a number of references were found on the Internet relating to blunts, blunt wraps and blunt wrappers for use with marijuana or cannabis. They include the following ones:
Cannabis Smoking/Rolled/Blunt
A "blunt" is a method for smoking marijuana in which the marijuana is smoked inside a tobacco leaf obtained from the outer layer of a cigar.
There are three main methods for producing blunts. The first method is to hollow out the interior of a pre-made cigar and fill it with cannabis. The second method is to rip or cut the cigar lengthwise from end to end, after which the contents are discarded and the wrapping rerolled like a new cigar. The third method is to buy cigar paper (commonly referred to as a wrap) which can come in a variety of flavors, and roll it like a joint. (Emphasis added.)
See www.wikipedia.org
Tobacco Technical Assistance Consortium/Tobacco 101/Tobacco Products
Blunts - Regular cigars that have marijuana added to the tobacco
Blunts are made by hollowing out a factory-made cigar and stuffing it with marijuana or by rolling one’s own cigar.
Technology
While blunts generally contain more marijuana than a joint, they look like a regular cigar.
Philly Blunts are inexpensive cigars that are often used to create marijuana blunts.
Blunt wrappers
The term blunt is also used to describe the blunt wrapper, tobacco leaf that can be cut to the size of the blunt the user wants to make.
Blunt wrappers are often flavored to taste like rum, cherry, strawberry, vanilla ice cream, etc. (Emphasis added.)
See www.ttac.org
NYU Steinhardt School of Culture, Education & Human Development
Center for Health, Identity, Behavior & Prevention Studies/Substances--Marijuana
A blunt, by definition, is marijuana rolled into the emptied wrapper of a cigar.
See www.steinhardt.nyu.edu
Blunt: a marijuana cigarette, specif. one made by putting marijuana into the wrapper of a hollowed-out cigar.
See www.yourdictionary.com
Blunt: Slang. a cigar stuffed with marijuana.
See dictionary.reference.com
Blunt: a cigar that has been hollowed out and filled with marijuana.
See www.merriam-webster.com
Blunt - A joint rolled in tobacco-leaf wrapper of a cigar.
See www.marijuanadictionary.com
Facts About Marijuana
Marijuana is most often smoked in hand rolled cigarettes known as joints or nails. Some marijuana users cut open cigars, replacing the tobacco with marijuana to create a blunt. Blunts may also contain mixtures of marijuana and crack cocaine.
See www.psychiatric-disorders.com
How Stuff Works/How Marijuana Works/Marijuana Usage
Some users slice open a cigar, remove the tobacco and refill it with marijuana. The marijuana-filled cigar is often called a blunt.
See www.howstuffworks.com
Office of National Drug Control Policy: Street Terms
Blunt -- Marijuana inside a cigar; cocaine and marijuana inside a cigar.
See www.whitehousedrugpolicy.gov
National Institute on Drug Abuse/Marijuana: Facts Parents Need to Know
Q: How is marijuana used?
A: Most users roll loose marijuana into a cigarette (called a joint or a nail) or smoke it in a pipe or a water pipe, sometimes referred to as a bong. Some users mix marijuana into foods or use it to brew a tea. Another method is to slice open a cigar and replace the tobacco with marijuana, making what’s called a blunt. (Emphasis.)
See www.drugabuse.gov
National Institute on Drug Abuse/NIDA InfoFacts: Marijuana
How is Marijuana Abused?
Marijuana is usually smoked as a cigarette (joint) or in a pipe. It is also smoked in blunts, which are cigars that have been emptied of tobacco and refilled with marijuana. Since the blunt retains the tobacco leaf used to wrap the cigar, this mode of delivery combines marijuana's active ingredients with nicotine and other harmful chemicals. (Emphasis added.)
See www.drugabuse.gov
Office of National Drug Control Policy/Pulse Check: Trends in Drug Abuse April 2002
How do marijuana users take marijuana?
As reported in the last Pulse Check, joints remain the most common vehicle for smoking marijuana. However, blunts (hollowed-out cigars filled with marijuana) are more common than joints in many cities, as reported by epidemiologic/ethnographic and non-methadone treatment sources. (Emphasis added.)
See www.whitehousedrugpolicy.gov
In light of the above, it is quite clear that there is a very large and extensive market for blunt wraps or blunt wrappers similar to those imported by HBI International that are likely or primarily purchased for use with marijuana or cannabis (i.e., to wrap and smoke the marijuana or cannabis).
In your submission, you allege that the blunt wraps or blunt wrappers that HBI International imports “are principally used in the United States for a consumer to use to make his own cigar.” No evidence was submitted to establish or substantiate this allegation. In fact, you have not submitted any evidence to show or establish the likely or primary intended use of the imported blunt wraps or blunt wrappers by the customers who purchase them from or through HBI International or from or through HBI International’s customers and affiliates. Finally, the record does not show or establish that the blunt wraps or blunt wrappers under consideration are 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, promotions and references on the Internet relating to blunt wraps and blunt wrappers, they are likely sold and bought for use with marijuana or cannabis. This is a relevant factor to consider in determining whether the blunt wraps or blunt wrappers 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 blunt wraps or blunt wrappers by the customers who purchase them. Id. Upon review, then, we conclude that the blunt wraps or blunt wrappers under consideration are likely or primarily intended for use with marijuana or cannabis (i.e., to wrap and smoke marijuana or cannabis) by the customers who purchase them from or through HBL International or from or through HBL International’s customers and affiliates. Therefore, although the blunt wraps or blunt wrappers may have more than one use, 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 blunt wraps or blunt wrappers constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). Therefore, the blunt wraps or blunt wrappers are unlawful and inadmissible, and their importation is prohibited. 21 U.S.C. § 863(a). Any future importations of the blunt wraps or blunt wrappers will be subject to seizure. 19 U.S.C. § 1595a(c).
Sincerely,
George Frederick McCray, Chief
Intellectual Property Rights & Restricted
Merchandise Branch