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HQ 114988

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April 7, 2000

RES-2-RR:IT:EC 114988 CC

CATEGORY: RESTRICTED MERCHANDISE

Layne T. Rossi
Pipeline BC Tobacco Pipes
3225 North Island Highway
Campbell River, BC
Canada V9W 2H8

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

Dear Mr. Rossi:

This is in response to your letter of February 15, 2000, concerning the admissibility of certain pipes.

FACTS:

According to your submission, you would like to import certain pipes constructed entirely of glass. You have submitted illustrations of the pipes you wish to import. You state that the pipes are called “bubble” or “molecule” pipes because of the bubble within the body of the pipe. The models available are identical except that the numbers of bubbles in the body differ, being either 4, 6, or 9 bubble sizes. The glass may be either clear or colored. You state that the subject pipes are designed, distributed, sold and marketed for tobacco use only. You ask whether these items constitute restricted merchandise.

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.

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

HOLDING:

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

Sincerely,


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