RES-2-RR:IT:EC 116374 GOB
Category: Restricted Merchandise
Shu Wang
President
Global Business Trading Inc.
63 Flushing Ave., Bldg. 280
Suite 411, Unit #246
Brooklyn, NY 11205
RE: 21 U.S.C. 863; Drug paraphernalia; Glass pipes; Water pipes; Dry pipes
Dear Mr. Wang:
This is in reply to your submission of December 6, 2004 with respect to certain glass pipes.
FACTS:
You request a ruling with respect to the admissibility of 11 glass pipes; samples were provided.
Four of the pipes are “water” pipes; seven of the pipes are “dry” pipes. The seven dry pipes are “straight” in form and range in length from approximately four and three-quarters inches to approximately six and one-half inches. The diameter of the bowls of these pipes at the top of the bowl is between seven-eighths of an inch and one inch. The water pipes are not “straight” in length and are somewhat larger than the dry pipes.
Each of the 11 pipes has a small hole in the side of the bowl. These holes are known as “carbs” or “carburetors”; they allow additional air to be mixed with the smoke inside the pipe as the smoker inhales. The subject pipes might be referred to as “carburetor pipes.”
ISSUE:
Whether importation of the subject articles into the United States is prohibited?
LAW AND ANALYSIS:
The Pertinent Statutes
21 U.S.C. 863 provides, in pertinent part:
§ 863. Drug paraphernalia
In general
It is unlawful for any person-
to sell or offer for sale drug paraphernalia;
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;
chillums;
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:
instructions, oral or written, provided with the item concerning its use;
descriptive materials accompanying the item which explain or depict its use;
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-
…
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.
Your Claims
You claim that the pipes are not drug paraphernalia within the meaning of 21 U.S.C. 863.
In support of your claim you have submitted the following documentation: information from various sources on pipes in general and glass pipes more specifically; instructions to your customers with respect to the marketing and sale of your pipes; photographs of 32 dry pipes and 24 water pipes; two CBP classification rulings (NY 814794 and NY C86794) with respect to the classification of tobacco which is intended to be smoked with water pipes; remittance statements with respect to the sale of your products to eight customers; statements from numerous individuals with respect to their use of glass pipes with tobacco.
Our Analysis and Determination
We note initially that the subject pipes are glass pipes and carburetor pipes. Four of the subject pipes are water pipes. These types of pipes (glass pipes, carburetor pipes, and water pipes) are specifically enumerated in 21 U.S.C. 863(d) – see subsections (1), (2), and (8). This enumeration does not necessarily mean that these pipes are drug paraphernalia within the meaning of 21 U.S.C. 863, but is illustrative of goods which may be considered drug paraphernalia.
We have carefully considered your submission. We believe that glass pipes, water pipes, and carburetor pipes are traditionally known for their use with controlled substances. The information you have submitted does not cause us to question or change our belief as to this usage. The extent of your previous business in selling these pipes is unclear. The instructions which you provided on your letterhead are self-serving and of limited value with respect to 21 U.S.C. 863(e)(1). The numerous statements you have provided by users of these pipes do not qualify as expert testimony pursuant to 21 U.S.C. 863(e)(8).
We are not persuaded, and we do not believe, that the subject pipes, and the general class of pipes to which they belong (i.e., similar glass pipes, carburetor pipes, and water pipes), are primarily intended, or traditionally intended, for use with tobacco products. We believe, and find, that the subject glass pipes are primarily designed or intended for use in ingesting, inhaling or otherwise introducing marijuana or other controlled substances into the human body. We therefore find that the subject glass pipes are “drug paraphernalia” within the meaning of 21 U.S.C. 863(d). The exemption in 21 U.S.C. 863(f) is not applicable.
Accordingly, pursuant to 21 U.S.C. 863(a)(3), the importation of such articles is unlawful and is prohibited. Because their importation is unlawful and prohibited we are not authorized to return the samples.
Our determination is consistent with previous rulings with respect to the admissibility of glass pipes, e.g., HQ 116316 dated December 9, 2004 and HQ 115461 dated August 31, 2001.
HOLDING:
The subject glass pipes are “drug paraphernalia” within the meaning of 21 U.S.C. 863(d). Pursuant to 21 U.S.C. 863(a), their importation is unlawful and prohibited.
Sincerely,
Glen E. Vereb
Chief
Entry Procedures and Carriers Branch