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HQ 114964

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April 7, 2000

RES-2-RR:IT:EC 114964 CC

CATEGORY: RESTRICTED MERCHANDISE

Ken Lacy
KEL International
1838 El Camino Real #222
Burlingame, CA 94010

RE: Pipes; drug paraphernalia; 21 U.S.C. § 863

Dear Mr. Lacy:

This is in response to your letter of December 16, 1999, on behalf of 3rd Rock, concerning the classification of certain pipes.

FACTS:

According to your submission, the merchandise consists of anodized, aluminum smoking pipes. You have submitted illustrations of the subject pipes. You state that the pipes are intended to be used for smoking tobacco.

ISSUE:

Whether the subject pipes are drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863.

LAW AND ANALYSIS:

21 U.S.C. § 863(a) provides that it is unlawful for any person to import or export drug paraphernalia. Pursuant to 21 U.S.C. § 863(d), the term “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in connection with controlled substances. Examples of drug paraphernalia, listed in 21 U.S.C. § 863(d), include, among other things, metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; water pipes; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs; and ice pipes or chillers.

In determining whether an item constitutes drug paraphernalia, 21 U.S.C. § 863(e) provides that 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; (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.

Pursuant to 21 U.S.C. § 863(f)(2), 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.

There is nothing in your submission, e.g., any of the documentation listed in 21 U.S.C. § 863(e), which shows that the subject pipes are traditionally intended for use with tobacco products. In addition, the subject pipes are the type of article listed as drug paraphernalia in 21 U.S.C. § 863(d). Consequently, we find that the subject pipes are considered drug paraphernalia pursuant to 21 U.S.C. § 863.

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:

The subject pipes are drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863.

Sincerely,


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