H308808

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H308808 April 22, 2020 OT:RR:BSTC:CCR HQ H308808 MNM CATEGORY: Restricted Merchandise Ms. Cecelia Rothrock, LCB, CCS Crane Worldwide Logistics, LLC 1500 Rankin Road Houston, Texas 77073 RE: 21 U.S.C. § 863; Drug Paraphernalia; Portibol Collapsible Water Pipe; LDM Hospitality, LLC; bong. Dear Ms. Rothrock: This is in response to your ruling request dated January 7, 2020, sent to the National Commodity Specialist Division (“NCSD”) on behalf of LDM Hospitality, LLC (“LDM”) regarding the tariff classification of a “Collapsible Water Pipe” under the brand name “Portibol.” The NCSD forwarded your request to this office for a determination as to whether the Portibol water pipe constitutes prohibited drug paraphernalia within the meaning of 21 U.S.C. § 863 and therefore, inadmissible into the United States. Our ruling is set forth below. FACTS You describe the subject merchandise, called the Portibol, in your ruling request as follows: …a highly engineered, patented design that enables users to mobilize the device for use outside the home for smoking tobacco and tobacco related products. Its purpose is to provide users with a glass alternative without sacrificing effectiveness and ease of use. The product features a proprietary percolator design with numerous holes and slits to produce maximum smoke. The product is fully expandable and can be quickly disassembled and re-assembled with simple technique. Your ruling request does not indicate that the Portibol water pipe is available for purchase at this time. Images of the Portibol as provided in your ruling request are below. Figure 1 photo included in ruling request submission depicting Portibol base plate  Figure 2 photo included in ruling request submission depicting Portibol Extension, Water Basin (Body), and Base Plate connected  Figure 3 photo included in ruling request submission depicting from top clockwise: Portibol packaging (appears two bowls included), overhead view of Base Plate’s Perforated Floor, and Mouthpiece (Stem) Figure 4 photo included in ruling request submission depicting Portibol packaging and Mouthpiece (Stem)   ISSUE Whether the subject water pipe falls within the meaning of drug paraphernalia pursuant to 21 U.S.C. § 863 and therefore, inadmissible to import into the United States. 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.” 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) the court in Posters ‘N’ Things identified the previous statute 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 standard, 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 multiple possible 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 second standard, “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, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the ‘designed for use’ standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them.” Village of Hoffman Estates et al v. The Flipside, Hoffman Estate, Inc., 455 U.S. 489, 501 (1982). Our determination in the present case is based upon all of the information and discussion in this ruling and the application of the two tests pronounced by the Court as to whether an article falls within the meaning of