HQ 115551 - Cigarette holder; Drug paraphernalia; 21 U.S.C. § 863 - United States International Trade Commision Rulings

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HQ 115551

February 14, 2002

RES-1 RR:IT:EC 115551 RSD

CATEGORY: RESTRICTED MERCHANDISE

Mr. Richard Gaff
Springfield Scientific Inc.
2600 Main Street # A
Springfield, Oregon 97477

RE: Cigarette holder; Drug paraphernalia; 21 U.S.C. § 863

Dear Mr. Gaff:

This is in response to your undated letter submitted by facsimile requesting a ruling on the classification of a smoker article and whether such article could be imported into the United States. Initially, the letter was sent to the National Commodity Specialist Division in New York. The ruling request was forwarded to Customs Headquarters for a determination on whether the subject merchandise constitutes drug paraphernalia, the importation of which is prohibited by 21 U.S.C. § 883.

FACTS:

The submitted sample is a hollow cylindrical glass tube measuring about 3 3/8 inches in length and 1/2 inch in diameter. About two thirds of the tube consists of clear glass. The remaining third has a larger exterior diameter, with an uneven, patterned and multi-colored bubble glass surface that flares slightly at the end. The opening at the clear end measures approximately 1/8th inch. At the decorative end of the article, the opening is about 1/4 inch. While the clear end of the tube has a large, tube-like interior diameter, the colored end has a narrower diameter (about 1/4 inch) which extends about 3/4 inches into the tube, ending in a small, pin –like hole, much like a small pipe bowl. Although the flared end will accept a non-filter cigarette, the 3/4inch depth of the bowl, with a pinhole opening at the bottom would seem to indicate that this product structurally, is more like a small glass pipe, rather than a cigarette holder.

ISSUE:

Whether the alleged glass “cigarette holder” is drug paraphernalia, the importation of which is unlawful under 21 U.S.C. § 863. LAW AND ANALYSIS:

Title 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 interpreting 21 U.S.C. § 863(d), the United States Supreme Court has indicated that the term “primarily intended for use” should be understood objectively and refers generally to an item's likely use. See Posters “N” Things, LTD. v. United States, 511 U.S. 513, 114 S.Ct. 1747, 128 L. Ed.2d 539 (1994). In this decision, the Court further explained that it didn’t think that the knowledge standard in this context requires knowledge on the defendant’s part that a particular customer actually will use an item of drug paraphernalia with illegal drugs. Rather, it is sufficient that the defendant be aware that customers in general are likely to use the merchandise with illegal drugs. Accordingly, based on the Supreme Court’s interpretation of the statute, the test for determining whether an item is drug paraphernalia is based on its likely use.

In Headquarters Ruling Letter 114967, dated April 7, 2000, Customs ruled on parts of smoking pipes that could be fitted together to form a pipe. “Item EX-1 was a small, threaded, cylindrical, metal piece that measured 2 inches in length and 3/8 inch in diameter. It could be joined to “Item EL-6” to create a customized, metal tobacco pipe. “Item EL-6” was a small pipefitting that could be constructed from brass, nickel-plated brass or anodized aluminum. It was cylindrical and it measured 3/4 inch in length and 1/2 inch in diameter. Along the length, one end was closed and the other end was open to receive a fitting. It could serve as a pipe bowl, and when combined with “Item EX-1”, it formed a customized, metal tobacco pipe. We ruled that the small bowl, which was suitable only for small amounts of material consistent with ingestion of controlled substances, constituted drug paraphernalia. We found that the subject pipe was designated as merchandise specifically listed in 21 U.S.C. 863(d) as drug paraphernalia e.g. metal pipes.

In Headquarters Ruling Letter 114968,dated May 2, 2000, Customs ruled on a smoking assembly that held a pipe, lighter and smoking material. The smoking pipe, made of brass, was cylindrical and measured 3 1/2 inches in length. The pipe bowl was in line with the pipe stem. We determined that the small bowl was suitable only for small amounts of material consistent with the ingestion of controlled substances, and concluded that there were reasonable grounds for believing that the article was drug paraphernalia.

In reviewing your submission and the submitted sample, the National Commodity Specialist who handles tobacco-related products for Customs noted that there is nothing in the submission to support the assertion that the instant product is a cigarette holder of a type “traditionally intended for use with tobacco products.” The National Commodity Specialist further pointed out that on the contrary, the bubble glass section, which would be expected to hold any cigarette, is much deeper (3/4 inch) than necessary for use as a simple holder. The inner part of this section also is substantially closed, with a rather small hole so that this part of the item appears to be a small pipe bowl. Further, it appears that this small bowl would work in concert with the clear, tubular shaft either to burn small amounts of narcotic substances or to draw in fumes when near or over burning substances.

In addition, the National Commodity Specialist also explained that the alleged cigarette holder appeared to be from a Pyrex heatproof glass. Cigarette holders do not require heatproof materials because cigarettes are usually not permitted to burn in the holder. In contrast, pipes do require materials that can withstand combustion because they are vessels for burning substances.

The record as presented contains none of the documentation referenced in section 863(e) that would indicate that the product is traditionally intended for tobacco use. Consequently, for the reasons specified we find that the subject product, the alleged glass “cigarette holder”, is considered drug paraphernalia pursuant to 21 U.S.C. § 863.

Because the importation of this article is unlawful and prohibited, a determination as to the classification 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 sound administration of the Customs and related laws to do so.

HOLDING:

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

Sincerely,

Larry L. Burton

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