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HQ 114939

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February 14, 2000

RES-1-RR:IT:EC 114939 GOB

Category: RESTRICTED MERCHANDISE

Ken Lacy
K E L International
1838 El Camino Real, #222
Burlingame, CA 94010

RE: 21 U.S.C. 863; Drug paraphernalia; Hookahs water pipes

Dear Mr. Lacy:

FACTS:

This ruling is in response to your letter of December 16, 1999 which requested a binding classification ruling on behalf of 3rd Rock with respect to certain articles.

In your request, you describe the articles as “Hookahs water pipes.” You state that the use of the articles is “Per impoter [sic] tobaco [sic] use.” The photographs submitted show four water pipes described in the photographs as “medium 21 inch hookah” and “large 31 inch hookah.”

ISSUE:

Whether admission of the subject articles into the United States is prohibited?

LAW AND ANALYSIS:

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 –
metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
water pipes;

[and numerous other articles, including certain pipes].

(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.

It is our determination that the subject articles are “drug paraphernalia,” within the meaning of 21 U.S.C. 863(d). Water pipes are among the type of item listed as drug paraphernalia in 21 U.S.C. 863(d). The requester has not submitted any documentary evidence which would establish or tend to establish that the articles are primarily intended for use with tobacco products.

Accordingly, pursuant to 21 U.S.C. 863(a)(3), the importation of such articles is unlawful and is prohibited.

Because the importation of these articles is unlawful and prohibited, a determination as to the classification of the articles is not appropriate. In this regard, we note 19 CFR 177.7(a), which provides in pertinent part:
no ruling letter will be issued with regard to transactions or questions which are essentially hypothetical in nature or in any instance in which it appears contrary to the sound administration of the Customs and related laws to do so.

HOLDING:

Pursuant to 21 U.S.C. 863(a)(3), the importation of the subject articles is unlawful and is prohibited.

Sincerely,

Jerry Laderberg
Chief,

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