H306125

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H306125 August 5, 2020 OT:RR:BSTC:CCR HQ H306125 MNM CATEGORY: Restricted Merchandise Gregory T. Ourada Hill, Kertscher & Wharton, LLP Riverwood 100 3350 Riverwood Parkway Suite 800 Atlanta, GA 30339 RE: 21 U.S.C. § 863; Drug Paraphernalia; ElevareCo Saber; Elevated Society, LLC; desktop vaporizer Dear Mr. Ourada: This is in response to your correspondence dated August 12, 2019, in which you requested a prospective ruling in accordance with 19 C.F.R. § 177.11, regarding the admissibility and classification of the ElevareCo Saber vaporizer. As our research revealed that units of the ElevareCo Saber vaporizer have been imported into the U.S. since your submitted your ruling request, we are issuing to you a ruling as to whether the subject merchandise constitutes prohibited merchandise within the meaning of 21 U.S.C. § 863. Our ruling is set forth below. FACTS The subject merchandise, called the ElevareCo Saber (“the Saber”), is a desktop vaporizing device described as: capable of either combusting or vaporizing a material that is placed inside an interior chamber…Unlike most smoking or vaping devices which feature resistance-based heating elements, the Saber’s distinctive characteristic is that it uses a high-intensity battery-powered laser diode…employed in conjunction with a collimating lens…to raise the temperature of a solid-or liquid material (e.g. dried herbal compound or a liquid medium) to either combustion or vaporization temperature. You claim in your ruling request that the Saber is to be used with herbal compounds including “tobacco, mullen [sic], raspberry leaf, chamomile, peppermint, lavender, or other aromatherapeutic herbs,” and other “vaping liquids.” Combustion of these materials results in the combustion of solid compounds and vaporization of liquid compounds, which are then inhaled by the user. According to the ElevareCo website, this technology is patent pending. In your prospective ruling request, you state that the Saber will be manufactured in China by Shenzhen Crossing Technology Co., Ltd. located in Shenzhen, Guangdong Province, China and is anticipated to be exported to U.S. Port 1704 in Atlanta, Georgia. At the time of your August 9, 2019 submission, you also claimed there are no purchase orders for the product outstanding, and you intend to sell the Saber online and through third-party distributors and retail channels. Images of the Saber as shown on the official ElevareCo website are provided below: See website https://elevareco.com/ Image A. The Saber desktop vaporizer 
 
 ISSUE Whether the subject vaporizer falls within the meaning of drug paraphernalia pursuant to 21 U.S.C. § 863, or alternatively, may be legally imported into the United States pursuant to the exemption provided in 21 U.S.C. § 863 (f)(2) as an item “traditionally intended for use with tobacco products. LAW AND ANALYSIS The relevant statute, 21 U.S.C. § 863, provides, in pertinent part: In general It is unlawful for any person- to sell or offer for sale drug paraphernalia; (2) 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; (11) chillums; (12) 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: (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; 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- (1) any person authorized by local, State or Federal law to manufacture, possess, or distribute such items; or 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. The U.S. Supreme Court examined the meaning of “drug paraphernalia” pursuant to 21 U.S.C. § 863 in the matter of Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), and considered the phrases (1) “primarily intended for use” and (2) “designed for use” in such cases. Although the Court was interpreting the text of the former statute, 21 U.S.C. § 857, in 1990 Congress repealed and replaced that section of title 21 with the present statute, 21 U.S.C. § 863. In Posters ‘N’ Things section 863 is identified as identical with the present statute. See Crime Control Act of 1990, Pub. L. 101-647, §2401, 104 Stat. 4858. See also 511 U.S. at 516, n. 5; United States v. Search of Music Marketing, Inc., 212 F.3d 920, 925 (6th Cir. 2000). With respect to the first phrase identified above, the Court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. Posters ‘N’ Things, 511 U.S. 513, 521 (1994). Moreover, the Court noted that this “is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features.” Id. at 521 n.11. Additionally, the court stated that “items ‘primarily intended’ for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” Id. at 521 n.11. Therefore, items having possible multiple uses may constitute drug paraphernalia for purposes of 21 U.S.C. § 863 if the likely use by customers of the seller of the items is for use with illegal drugs. With respect to the above-mentioned second phrase, “designed for use,” the Court referred to Village of Hoffman Estates et al v. The Flipside, Hoffman Estate, Inc., 455 U.S. 489 (1982), where the Court stated that it is also to be understood objectively and that it refers to an item’s objective characteristics. Id. at 501. “An item is ‘designed for use’…if it ‘is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer….The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, a

will examine the article’s primary intended use relative to the factors set forth in 21 U.S.C. § 863(e); with particular focus on Factors: (2), (3), (4), and (7). As will be discussed, and as the evidence reveals, the component features and accessories of the Saber demonstrate that its likely use falls squarely within the purview of the enumerated factors set forth in 21 U.S.C. § 863(e). The Saber is primarily intended for use with cannabisWith respect to the “primarily intended for use” test, “it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” Posters ‘N’ Things, supra. While your submission includes draft instructions for the Saber detailing use of the device for vaporizing various dry herbs and oils for inhalation and for aromatherapy, our research indicates that these instructions for allegedly legitimate uses do not overcome the fact that there is clear evidence that this product is used with cannabis. Further, the manner in which the subject merchandise is marketed and displayed is indicative of the product’s intended use. See 21 U.S.C. § 863(e) (2), (3) & (4). Specifically, Elevareco has promoted the Saber for such impermissible use on its social media accounts. On February 15, 2020, Elevareco shared on their Instagram page a link to a YouTube video review of the Saber. The reviewer in the video uses the Saber to vaporize and consume cannabis. The same reviewer posted a review of the Saber, dated February 15, 2020, and offers his critique of the Saber:I recently loaded an indica-dominant strain into the Saber and am experiencing all of the taste and mental stimulation of other smoking methods… MINUS THE HARSH SMOKE! This is a big plus for my lifestyle because Clean Cannabis Consumption is the only way I’m going to stay healthy AND maintain my career as a vocalist. For me, this solidifies the marriage of Music and Mary Jane forever! Thanks, Elevaré! As far as residual, lingering