ENF 4-02 OT:RR:BSTC:CCI H150766 CK
Steve Homokay
Livingston International
670 Young Street
Tonawanda, NY 14150
RE: 21 U.S.C. §863; Drug paraphernalia; Hookahs; Hookah components
Dear Mr. Homokay,
This is in response to your correspondence dated February 7, 2011 to the National Commodity Specialist Division in New York, forwarding a request for an admissibility ruling, dated October 4, 2010 regarding complete hookahs that your client, Fumo Design LLC, intends to import from the Czech Republic. You requested a ruling as to whether the articles that Fumo Design intends to import constitute drug paraphernalia as set forth in 21 U.S.C. § 863. You provided copies of a couple of ‘User’s guides” for various designs of hookah.
FACTS:
You state that the hookahs are traditionally used to smoke flavored tobacco called shisha. The hookahs have a glass bowl at their top, in which tobacco is heated by charcoal placed on either a stainless steel or glass coal screen and tray. A glass downstem is placed inside the glass bowl. The bowl downstem assembly is placed into the large top hole of the hookah body (glass) which is partially filled with water. Flexible hookah hoses containing a glass hookah insert and glass or stainless steel hose mouthpiece to draw smoke from are inserted into holes in the side of the hookah body. If hoses are not inserted these holes can be inserted with a glass hookah side hole plug. The glass hookah jar (or body) is placed in a stainless steel jar stand (hookah base).
Fumo Design is a licensed retail tobacco products dealer in the state of Florida. You assert the hookahs, and hookah components, are intended for use with tobacco only and are therefore not drug paraphernalia.
Below are examples of the products section on Fumo Design’s website at http://www.fumodesign.com.
ISSUE:
Whether the hookah and hookah components under consideration constitute drug paraphernalia for purposes of 21 U.S.C. § 863.
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 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.
Since the hookah is a multiple-use item, the remaining issue is whether the hookahs are “primarily intended” for use with drugs. 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 hookahs 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.
You put forth the following arguments that the Fumo Design assembled hookahs and hookah component parts are not drug paraphernalia as defined by 21 U.S.C. §863, above.
In addressing the elements in section 863(e)(1) and (2), the attached “User’s guide for the Pod and Tank” design and ‘User’s Guide for the Jar” design hookahs include instructions and drawing and photographs showing how to use and the product with tobacco. Additionally, you have supplied a patent notification from the US Patent and Trademark Office granted to the owner of Fumo Design for the hookahs.
In addressing the element in section 863(e)(3) you attached information from Fumo Design’s website showing the use of the hookahs with tobacco. You also attached evidence of your planned participation at the 2011 Tobacco Plus Expo International in Las Vegas, which is a trade show for manufacturers and distributors to exhibit tobacco products and related merchandise.
In addressing the element in section 863(e)(4) you attached numerous pictures from a retail store located in Boca Raton, Florida showing the Fumo Design hookahs for sale with other hookah designs and tobacco products.
In addressing the element in section 863(e)(5), you reiterate that Fumo Design is a licensed retail tobacco products dealer in the state of Florida.
In addressing the element in section 863(e)(7), you provided advertising materials for a hookah lounge named Cloud 9 Hookah Lounge in Las Vegas, NV, which lists Fumo Design as a supplier of their shisha tobacco on its website. You also provided web pages from an online directory of hookah bars in the United States, including Florida.
Finally, in addressing the element in section 863(e)(8), you attach an article posted on the website of the Centers for Disease Control and Prevention (CDC), which defines a hookah as an item that is “used to smoke specially made tobacco.”
Additionally, we note your argument that CBP has already held in two prospective rulings that hookahs were admissible merchandise into the United States. In both HQ H022179, dated April 18, 2008, HQ 116060, dated November 7, 2003, CBP held that the hookahs at issue therein were not drug paraphernalia based on the weight of the evidence addressing the eight criteria as set forth in 21 U.S.C. §863.
In this case, as in the above two cited rulings, weighing the eight criteria described above, as no one criterion is determinative, sufficient evidence has been submitted that is probative of the claim that the hookahs and hookah components that will be imported are intended to be used with tobacco. As these hookahs and hookah components are intended to be used with tobacco, they are not drug paraphernalia as defined in 21 U.S.C. §863.
HOLDING
The subject articles are not drug paraphernalia as defined in 21 U.S.C. §863, and are not prohibited from admission.
Sincerely,
George Frederick McCray
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Immigration Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection