RES-OT:RR:BSTC:CCI H155055 GOB
Jonathan Sayag
2604 Brighton Dam Road
Brookeville, MD 20833
RE: 21 U.S.C. § 863; Drug Paraphernalia; Electric Hookahs
Dear Mr. Sayag:
This is in response to your correspondence which was received in the National Commodity Specialist Division (“NCSD”) of U.S. Customs and Border Protection (“CBP”) on February 12, 2011. By memorandum of March 8, 2011, the NCSD forwarded your correspondence to this office. On March 30, 2011, you provided additional information to this office. Our ruling is set forth below.
FACTS:
You describe the pertinent facts as follows. You wish to import from China hookahs with a glass base, iron metal stem, plastic hose, and porcelain bowl. You intend to convert the imported hookahs into electric hookahs and sell the hookahs on the Internet with flavored tobacco-free nicotine liquid; the liquid will be a mixture of food grade vegetable glycerin, distilled water, and flavoring. The liquid is to be poured into a bowl on the top of the hookah; when the hookah is turned on and the user inhales from the hose, the liquid will be pulled down the stem of the hookah, heated, and vaporized. You state that the only possible use of the hookahs, once converted into electric hookahs, is the smoking of vaporized liquid. You further state that you will place a non-heat resistant funnel on the top of the hookah so that tobacco or drugs will not be able to be heated at the top by either a lighter or charcoal without burning the funnel.
ISSUE:
The issue presented is whether the subject hookahs are prohibited from importation into the United States by reason of the fact that they are drug paraphernalia within the meaning of 21 U.S.C. § 863.
LAW AND ANALYSIS:
21 U.S.C. § 863 provides, in pertinent part, as follows:
§ 863. Drug paraphernalia
In general
It is unlawful for any person-
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
to import or export drug paraphernalia.
…
(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, 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 . . .;
(6) miniature spoons . . .;
(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;
the manner in which the item is displayed for sale;
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;
direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
the existence and scope of legitimate uses of the item in the community, and
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 by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.
You state that the hookahs you wish to import into the United States are to be used predominantly with vaporized liquid, not drugs. You further state that the manner in which you will change the hookahs renders them almost useless as drug paraphernalia.
In Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), the U.S. Supreme Court had an opportunity to consider the phrases (1) “primarily intended for use” and (2) “designed for use” with respect to drug paraphernalia. 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, 511 U.S. at 516, n. 5; United States v. Search of Music Marketing, Inc., 212 F.3d 920, 925 (6th Cir. 2000).
With respect to the above-mentioned first phrase, the Court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. Posters ‘N’ Things, 511 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.” Id. 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.” Id. at 521, 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 illegal drugs.
With respect to the above-mentioned second phrase, “designed for use,” the Court referred to Village of Hoffman Estates et al v. The Flipside, Hoffman Estate, Inc., 455 U.S. 489 (1982), where the Court concluded that it also is to be understood objectively and that it refers to an item’s objective characteristics. Id at 501. “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….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 base). Items that meet the ‘designed for use’ standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them.” Id.
Title 21, United States Code, § 863(e) provides eight factors which may be considered, in addition to all other logically relevant factors, in determining whether an item constitutes drug paraphernalia. You have provided some information relevant to the factor stated in 21 U.S.C. § 863(e)(2) (i.e., descriptive materials accompanying the item which explain or depict its use) in your initial correspondence and accompanying materials. In your submission of March 30, 2011, you state that your company is a “start up” and therefore you do not have complete information with respect to the eight factors enumerated in 21 U.S.C. § 863(e). You provide the following information with respect to the eight factors. Factor (1) - “instructions, oral or written, provided with the item concerning its use.” You provide information concerning two Internet forums which are “dedicated specifically to hookahs and their proper use. Both forums only allow posts about hookah use for tobacco and do not permit the discussion of hookahs as drug paraphernalia.” Factor (2) – “descriptive materials accompanying the item which explain or depict its use.” You provide information from two Internet sites which “strictly refer to and demonstrate using hookah to smoke tobacco or legal tobacco substitutes.” Factor (3) – “national and local advertising concerning its use.” You state that “[m]any hookah retailers offer free flavored tobacco with the purchase of one of their hookahs. Other retailers offer combo packs with hookahs and flavored tobacco.” Factor (4) – “the manner in which the item is displayed for sale.” You state that every large hookah retailer in the U.S. also sells hookah tobacco. You provide information from six Internet sites (the first six retailers in a “hookah” search conducted on Google) which “all sell flavored tobacco products (also called shisha) alongside their hookah inventory.” You state that you “will be selling hookahs alongside eliquids (oil, water, nicotine, and flavoring). The same liquids are used in e-cigarettes. These liquids are free of illegal drugs …” Factor (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.” You state that you never intend to be a distributor of tobacco products because you are offering a healthier alternative to hookah users. You further state that your hookahs will not be used as drug paraphernalia. Factor (6) – “direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise.” You state that your projections indicate that more than 60% of revenues will come from hookah sales while the remainder will come from the sales of the liquid and accessories. Factor (7) – “the existence and scope of legitimate uses of the item in the community.” You state that hookahs in the United States are used for smoking tobacco. You offer the following quotation from The New York Times of April 19, 2006: “Many middle-age former hippies – and campus security officers – wonder whether college students really see hookahs as a good smoke, or a smokescreen behind which to hide drug use. But today’s fresh-faced college students, even those who confess freely, if off the record, that they smoke marijuana, say they use hookahs for tobacco, not drugs.” Factor (8) – “expert testimony concerning its use.” You have provided a paper published in Nicotine & Tobacco Research (Volume 10, Number 2 (February 2008), pp. 393-398): Waterpipe tobacco smoking: Knowledge, attitudes, beliefs, and behavior in two U.S. samples by Stephanie Smith-Simone, Wasim Maziak, Kenneth D. Ward, and Thomas Eissenberg (the “Eissenberg Paper”). You state that Dr. Eisenberg, “considered an expert on everything hookah,” refers “to hookah as a waterpipe for smoking tobacco throughout the whole paper.”
In certain rulings, CBP has determined that hookahs are not drug paraphernalia based in part on information submitted by the requester relating to the factors enumerated in 18 U.S.C. § 863(e). In HQ 116060, dated November 7, 2003, where CBP determined that certain “Nargilehs/Hookahs” were not drug paraphernalia, CBP stated:
In this case, in regard to the above criteria the requester submitted numerous newspaper articles, definitions, New York ruling letters, and photographs depicting the traditional use of the hookahs with tobacco products. Regarding criteria 1 and 2, while no evidence has been submitted regarding accompanying materials imported with a hookah, as stated earlier, and in the FACTS portion of this ruling, numerous newspaper articles, definitions, and two New York rulings from CBP describing the use of hookahs to smoke flavored tobacco were submitted. Also, this submission included the packaging of flavored tobacco, which contains a diagram of a hookah. Regarding criteria 3 and 4, newspaper articles advertising and reporting on hookah bars were submitted, as were photographs of a menu from a hookah bar, hookah cafes, and advertisements for hookah bars. As to criteria 5, the newspaper articles and photographs show hookahs being offered for sale, and the revenue of hookah dealers. However, no evidence of criteria 5 or 6 is directly attributable to your business. Once again, for criteria 7 and 8 numerous photographs, newspaper articles, and dictionary and encyclopedia definitions describe the long history of hookahs in the Middle East, and the growing popularity of hookah bars in the United States for smoking flavored tobacco.
In HQ H022179, dated April 18, 2008, where CBP determined that certain hookahs were not drug paraphernalia, CBP stated:
This case is similar to HQ 116060, dated November 7, 2003, concerning the admissibility of hookahs. In that case, along with a prospective ruling request, the importer submitted numerous articles reporting on the rising popularity of hookah bars in the U.S., dictionary and encyclopedia definitions of the terms “nargileh” and “hookah,” and photos depicting the traditional use of hookahs with tobacco products. In addition, the importer submitted two New York binding rulings on flavored tobacco. See NY 814794, dated September 28, 1995 and NY C86794, dated April 23, 1998. CBP found the supporting documentation to be “sufficient evidence ... probative of the claim that the nargilehs/hookahs … are intended to be used with tobacco; they are not drug paraphernalia.”
In HQ H084516, dated March 22, 2010, where CBP stated that certain single hose hookahs were not drug paraphernalia, CBP stated that “[t]here 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.”
We believe that certain of the information cited in these rulings is applicable here. For example, in HQ 116060, the requester provided articles from the Voice of America News, The Washington Post, Time Magazine Archive, and The Economist describing the use of hookahs with tobacco. The requester also provided photographs depicting the use of hookahs in connection with the use of tobacco. We believe this general information is applicable in this case with respect to the factors stated in 21 U.S.C. § 863 (e)(3) (national and local advertising concerning its use) and (e)(7) (the existence and scope of legitimate uses of the item in the community). Further, the Eissenberg Paper indicates that the use of hookahs for tobacco smoking has increased since HQ 116060 was issued on November 7, 2003. Additionally, we find that the Eissenberg Paper is highly probative with respect to the existence and scope of legitimate uses of hookahs in the United States. See also H084516, excerpted above, re the established, legitimate use of hookahs in the community.
As indicated above, there are two tests as to whether an item is drug paraphernalia within the meaning of 21 U.S.C. § 863(d) – whether the item is (1) primarily intended or (2) 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 chapter.
With respect to the “primarily intended for use” test, “it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” Posters ‘N’ Things, supra. We find that the information described above is clearly indicative of the conclusion that the primary and/or likely use of hookahs in the United States is not with illegal controlled substances. Therefore, we find that the subject hookahs are not primarily intended for use in inhaling (or any of the other activities enumerated in 21 U.S.C. § 863(d)) an illegal controlled substance. In making this finding, we note that there is no information in the record to the effect that the subject hookahs will be used with illegal controlled substances.
With respect to the “designed for use” test, the Court in Village of Hoffman Estates, supra, stated that “[a]n 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…. 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 base).” We find that the hookahs do not possess objective characteristics which establish that they are designed specifically for use with controlled substances. The hookahs clearly have legitimate uses. Therefore, we determine that the hookahs are not designed for use in inhaling (or any of the other activities enumerated in 21 U.S.C. § 863(d)) an illegal controlled substance.
Accordingly, we determine that the hookahs are not “drug paraphernalia” within the meaning of 21 U.S.C. § 863(d). Therefore, they are not prohibited from importation into the United States.
Please note that 19 CFR §177.9(b)(1) provides in pertinent part as follows:
Each 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 [now CBP] 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 hookahs at issue herein are not considered “drug paraphernalia” within the meaning of 21 U.S.C. § 863(d), and are therefore not prohibited from importation into the United States.
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