ENF 4-02 OT:RR:BSTC:IPR H084516 SEK
Michael Koseck
E. Besler & Co.
115 Martin Lane
Elk Grove Village, IL 60007
RE: Admissibility of “single hose hookah”; Drug paraphernalia; 21 U.S.C. § 863
Dear Mr. Koseck,
This is in response to your request for a ruling on the admissibility of single hose hookahs (“Request”) on behalf of your customer, SP Direct. You provided supporting documentation and a sample for our examination.
FACTS:
You describe the articles at issue as a “single hose hookah.” You provided material that defines a hookah as “a single or multi-stemmed (often glass-based) water pipe” which is used for “smoking tobacco fruits.” Request, p. 3. The material you provided describes the structure of a hookah as consisting of a bowl, a hose, the body of the hookah, a plate, and in some cases a windscreen, purge valve, and/or grommets. The bowl, or the head of the hookah, is a container that holds coal and tobacco during the smoking session, and you describe its use as follows: “The bowl is loaded with tobacco then covered in a small piece of perforated tin foil or a glass or metal screen. Lit coals are then placed on top, which allows the tobacco to heat to the proper temperature.” Request, p. 5. The hose consists of a slender tube through which the smoker inhales and draws smoke. The body of the hookah consists of a hollow tube, and the bowl is attached to the top of the body of the hookah. At the bottom of the body of the hookah is a thin tube called a downstem which is submerged in water. “The point where the body meets the water jar is sealed with a gasket. Near there are at least two holes that open into the space above the water. One or more may accept a hose.” Request, p. 5. The plate sits below the bowl to collect any ashes that fall from the bowl. If included, a windscreen covers the bowl area and contains air holes. A purge valve, if included, is “connected to the airspace in the water jar to purge stale smoke which has been sitting unused in the jar for too long. This one-way valve is typically a simple ball bearing sitting over a port which seals the port by gravity alone and will open if positive pressure is created by blowing into the hose. The bearing will be held captive with a screw-on cover.” Request, p. 5-6. Grommets may be used between the bowl and the body, the body’s gasket and the water jar, and between the body and the hose in order to seal the joints and therefore prevent air from coming in.
The material that you provided depicts the use of hookahs as follows:
The jar at the bottom of the hookah is filled with water sufficient to submerge a few centimeters of the body tube, which is sealed tightly to it. Deeper water will only increase the inhalation force needed to use it. Tobacco is placed inside the bowl at the top of the hookah and a burning charcoal is placed on top of the tobacco. Some cultures cover the bowl with perforated tin foil or a metal screen to separate the coal and the tobacco, which minimizes inhalation of coal ash with the smoke. This may also reduce the temperature the tobacco is exposed to, in order to prevent burning the tobacco directly.
When one inhales via the hose, air is pulled through the charcoal and into the bowl holding the tobacco. The hot air, heated by the charcoal evaporates (not burns) the tobacco, thus producing smoke, which is passed down through the body tube that extends into the water in the jar. It bubbles up through the water, losing heat, and fills the top part of the jar, to which the hose is attached. When a smoker inhales from the hose, smoke passes into the lungs, and the change in pressure in the jar pulls more air through the charcoal, continuing the process.
If the hookah has been lit and smoked but has not been inhaled for an extended period, the smoke inside the water jar may be regarded as “stale” and undesirable. Stale smoke may be exhausted through the purge valve, if present. This one-way valve is opened by the positive pressure created from gently blowing into the hose. It will not function on a multiple-hose hookah unless all other hoses are plugged. Request, p. 7.
The supporting documentation that you provided includes evidence of the presence of hookah lounges in the United States where hookahs are used to smoke flavored tobaccos. It states that in some jurisdictions in the United States that have implemented bans on smoking tobacco indoors, hookah businesses can still be exempted from the ban by obtaining special permits. Request, p. 4. You also contend that hookah lounges have been growing in popularity in some cities, and that between “[f]rom the year 2000 to 2004, over 200 new hookah cafes opened for business, most of which are targeted at a young-adult age group, [] and were particularly near college campuses or cities with large Middle-Eastern communities.” Request, p. 4.
A sample of the merchandise was received in this office and consisted of the hookah pictured below.
ISSUE:
Whether the hookah under consideration constitutes drug paraphernalia for purposes of 21 U.S.C. § 863(d).
LAW AND ANALYSIS:
As concerns what constitutes “drug paraphernalia” for purposes of 21 U.S.C. § 863, the statute provides, in part, as follows:
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 follows:
“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.
In determining whether an item constitutes drug paraphernalia, 21 U.S.C. § 863(e) states as follows:
[I]n 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.
Exemptions under subsection 21 U.S.C. § 863(f)(2) provide, in pertinent part, that this section 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 interpreting the statutory definition of drug paraphernalia, the Supreme Court has held that the government may demonstrate that an item is drug paraphernalia by showing either that an item is “primarily intended” for use with drugs, or that an item is “primarily … designed” for use with drugs. In Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), the Court, in considering the language of the statutory precursor to 21 U.S.C. § 863, analyzed the statute and determined that the phrase “primarily intended or designed for use” established objective standards for determining what constitutes drug paraphernalia. The Court determined that the “designed for use” standard focused on the physical characteristics and design features of the item:
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).
The Court also considered the “primarily intended… for use” prong of section 863(d) and concluded that mixed-use items could fall into this category of objects because “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.”
The Court found further support for an objective construction of the statute in § 857(f), which establishes an exemption for items “traditionally intended for use with tobacco products...” The Court stated that an item’s “traditional” use cannot be based on the subjective intent of a particular defendant, and further remarked that the addition of the word “traditionally” in place of “primarily” (which Congress added in order to clarify the limits of the exemption) suggests that the original “primarily intended” language did not refer to the fundamentally different concept of a defendant’s subjective intent. Accordingly, the Court concluded that the phrase “primarily intended or designed for use” in section 857(d) does not serve as a basis for a subjective scienter requirement on the part of the defendant, but rather establishes objective standards for determining what constitutes drug paraphernalia.
In turning to the article at issue, we conclude, the hookah at issue is not “primarily intended or designed for use” with drugs, and therefore does not constitute drug paraphernalia as defined in 21 U.S.C. § 863.
The “designed for use” standard requires that the objective features of the merchandise make it “designed specifically for use with controlled substances.” The “designed for use” element in the statute refers to the manufacturer's design and not the intent of the retailer or customer. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 501 (1982). In Hoffman Estates, the court explained that an item is “designed for use” if it “is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer.” Since the hookah at issue is designed for use with tobacco and not with controlled substances, it does not meet the “designed for use” standard. The hookah qualifies as a mixed-use item that may not have been designed for use with controlled substances, but nevertheless may constitute drug paraphernalia because of “the actual use of the item in the community.”
Since the hookah is a mixed-use item, we turn to the “primarily intended” for use standard. The phrase “primarily intended” indicates that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia. See Posters ‘N’ Things, 511 U.S. at 522, n. 11. The standard for determining whether the cigar wraps are prohibited drug paraphernalia is not whether the items are compatible for use with illicit substances, but whether they are primarily intended for use with illicit substances.
A consideration of the available evidence of the logically relevant factors listed in 21 U.S.C. § 863(e) reveals that the hookah is not primarily intended for use with illicit substances. There is evidence of the existence and popularity of hookah lounges where hookahs are regularly used to smoke tobacco which indicates that there is an established legitimate use of the product in the community. Although there is no indication that this particular hookah is intended for use in hookah lounges, a review of SP Direct’s website “supply2store.com” reveals that “Supply2Store is one of the major wholesale suppliers of tobacco products, novelties, medicine, energy supplement and general merchandise to wholesalers, gas stations, tobacco shops, convenient, and dollar stores throughout the United States.” This statement and a review of the items offered for sale on supply2store.com constitute evidence that SP Direct is “a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.” Under the link “Tobacco Products,” supply2store.com offers several tobacco products including tobacco chew, tobacco snuff, cigars, filter cigars, pipe tobacco, “Roll Your Own” products, and hookah tobacco. There is no indication in the manner that the hookah is displayed for sale on supply2store.com that the product is intended for use with illicit substances. There is no evidence in the record of any national or local advertising concerning the product’s use. Furthermore, there is no suggestion in the record, on the product, or on the package of the hookah that it is intended for use with illicit substances, and there are no descriptive materials accompanying the product that explain or depict hookah’s use with illicit substances. In light of the above, the information in the record supports a finding that the hookah under consideration is not primarily intended for use in ingesting and inhaling cannabis or marijuana by the customers who purchase it.
Please note that 19 CFR §177.9(b)(1) provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based."
HOLDING
The above-referenced hookah does not constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d), and is not prohibited for admission.
If you have any questions regarding this determination, please contact Suzanne Kane of my staff at (202) 325-0119.
Sincerely,
Charles R. Steuart, Chief
Intellectual Property & Restricted Merchandise Branch