ENF-4-02-OT:RR:BSTC:IPR H047601 AML
Mr. Edward L. Earle
HBI International
3315 W. Buckeye Road, Suite B
Phoenix, AZ 85009
RE: Request for reconsideration of Headquarters Ruling Letter (“HQ”) H041682; Blunts; Blunt wraps/wrappers; Drug paraphernalia; 21 U.S.C. § 863
Dear Mr. Earle,
This is in reference to your letter of December 8, 2008, requesting reconsideration of the determination made in Headquarters Ruling Letter (“HQ”) H041682, dated November 26, 2008, which concluded that certain blunt wraps, also referred to as “blunt wrappers” are prohibited and inadmissible merchandise pursuant to 21 U.S.C. § 863.
FACTS:
You describe the articles at issue as “blunt wraps” and “blunt wrappers” which you state are comprised of flavored cigar wrappers for use with tobacco. You contend, in reliance upon 21 U.S.C. § 863(f) (set forth and discussed below), that by virtue of a tobacco distributor’s license issued by your state of residence that 21 U.S.C. § 863 “is not applicable in this situation.”
You further contend that the flavored blunt wrappers are intended to be used with tobacco, and in support of this contention, you provided promotional materials which emphasize the use of blunt wrappers with tobacco, emphasize the cost savings of “rolling your own,” and emphasize how individuals can customize their hand rolled cigars by choosing the type of tobacco and various methods of rolling the wrappers to create a cigar.
As we noted in HQ 041682, “blunts” are associated with the ingestion of marijuana. See also, http://en.wikipedia.org/wiki/Blunt_(cigar):
A Blunt also can refer to a marijuana cigar where the wrapping is a tobacco product. The cigar is emptied of tobacco and the resulting shell is then filled with marijuana and resealed. [2] Although Cannabis cigars had been a known way to smoke cannabis for years, the blunt didn’t become popular until individually-wrapped single cigars became available in large quantities for low cost. Since they were so cheap and potent (especially amongst a large group of people), their popularity spread in the 1980s and 1990s. Blunts are most commonly found in major urban areas, especially in cities with a large marijuana-using population and few places to purchase glass pipes. Blunts are preferred by many for the reason of a social smoke with a lot of people, or for lower grade marijuana for the large amounts that can be “rolled” into one blunt . . . There are also “blunt-papers” on offer that are similar to a cigars outer leaf, but in the usual king-size format. These are specifically for use with marijuana.
See http://www.cigaradvisor.com/qa.cfm?id=88:
A “Blunt” in the traditional sense is essentially a Corona-size cigar, which is rolled to around 5” x 42 on average. The ever-popular Phillies Blunts are actually 415/16” x 41. But the kind of “blunt” I believe you're referring to is a “cigar” rolled with marijuana.
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.
Today, the term “Blunt” is generally associated with the Hip-Hop subculture. There are also some tobacco shops and websites that sell “blunt” papers for rolling your own cigars, or blunts, depending on your “weed” of choice. (See also, HQ H030458, dated October 8, 2008, referring to same site.)
See also: http://www.oas.samhsa.gov/2k7/mjBlunts/mjBlunts.cfm: “Marijuana blunts are cigars with tobacco replaced with marijuana.”
The use of blunts and blunt wrappers to ingest marijuana is well-renowned. Major cities and counties have outlawed their sale:
PHILADELPHIA -- City Mayor John Street has signed an anti-drug paraphernalia bill into law, making the sale of flavored blunts, wood pipes, water bongs and other drug paraphernalia items, illegal, according to a report by CBS 3 News.
[Philadelphia police officer and community activist Jerry Rocks Sr.] told the television station that the battle began when he was stonewalled by . . . retailers who he said sell wrappers that kids buy to smoke marijuana. “I believe they’re drug paraphernalia. [One retailer] says old men smoke the blunts, and women. But I don't know any women who smoke watermelon blunts and any old men that smoke blueberry and raspberry blunts,” he said in a June 2006 interview. http://www.allbusiness.com/retail-trade/food-stores/4490797-1.html.
See also http://media.www.diamondbackonline.com/media/storage/paper873/ news /2008/ 11/21/News/County.Council.Bans.Individual.Cigar.Sales.To.Deter.Pot.Use-3557154.shtml:
The Prince George's County [Maryland] Council passed a bill this week that would ban the sale of individual cigars in an attempt to deter people from using the wrapping to roll marijuana blunts.
The legislation, which the council passed 8-1, would require businesses to sell cigars in packs of five or more. The measure is intended to discourage youth from smoking marijuana by making it more expensive to use cigar wrappings for other illicit purposes. The bill also would make cigars legally definable as drug paraphernalia in certain situations.
ISSUE:
Whether the “blunt wraps” and “blunt wrappers” 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 . . . into the human body[.]
As we stated in HQ H041682, 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)(1) provides that section 863 shall not apply to “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items[.]” 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 promotional materials which describe the articles as “blunt wrappers” for smoking tobacco, there has been no evidence presented that addresses the “logically relevant” factors set forth in 21 U.S.C. § 863(e), set forth above.
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.
In HQ H030458, in considering an argument similar to yours – that your company advertises and intends that the flavored blunt wrappers are to be used legally with tobacco – we made the following determination:
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. HQ H030458 at 12.
We conclude, your characterization that the implements are intended solely for smoking tobacco notwithstanding, that the flavored “blunt wraps” and “wrappers” at issue are designed and are “likely to be used for” (see Posters 'N' Things, supra) the ingestion of marijuana. As we stated in HQ H041682, a web search of the term “blunts” and “flavored blunts” revealed sites identifying and associating such products as those for use for the ingestion of illicit substances, primarily marijuana. A supplemental search conducted in response to the request for reconsideration revealed the information set forth in the “facts” section above; all of which confirms that flavored blunt wrappers are likely to be used to ingest marijuana. 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 concern is engaged in the legitimate tobacco business (21 U.S.C. § 863(e)(5)), and although the flavored “blunt wraps” and “wrappers” 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)).
Your request for reconsideration of HQ H041682 is therefore denied.
HOLDING:
Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of such articles is unlawful and is prohibited.
If you have any questions regarding this determination, please contact Andrew Langreich of my staff at (202) 325-0089.
Sincerely,
Jeremy Baskin, Director
Border Security & Trade Compliance Division