H322719

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H322719 February 23, 2021 OT:RR:BSTC:CCR HQ H322719 AFM Austin Ambrozi Mr. Tokes LLC 15793 SW 146th Terrace Miami, Florida 33196 CATEGORY: Restricted Merchandise Dear Mr. Ambrozi: This is in response to your correspondence of December 22, 2021, in which you requested a ruling on a prospective transaction in accordance with 19 C.F.R. § 177.1, regarding the correct Harmonized Tariff Schedule of the United States (“HTSUS”) classification of The LitKit, made by Mr. Tokes LLC. The merchandise is inadmissible as it constitutes drug paraphernalia pursuant to 21 U.S.C. § 863. Accordingly, we cannot issue a binding ruling on the tariff classification of the merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) 19 C.F.R. § 177.7. Our ruling is set forth below. FACTS The subject merchandise consists of The LitKit, a product with 8 components (“A” through “H”) and an adhesive to stick to the product to the back of a cell phone. The components you describe in your ruling request are in the following table: Component Requester’s Description  A “bottle opener”  B “cigar cutter”  C finger slot  D “knob that can be spun for enjoyment”  E “miscellaneous storage area”  F “storage slot for a stylus”  G “plinko board”  H “storage area” into which the small ball from the “plinko board” can fall   The LitKit would be imported from China, with Mr. Tokes LLC, as the importer of record. Images of The LitKit as provided in your ruling request are provided below. The letters “A” through “H” correspond with the above-described components of The LitKit. 
 
 
 
 
 
 
 ISSUE Whether The LitKit falls within the meaning of drug paraphernalia pursuant to 21 U.S.C. § 863. 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, 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.” Id. Our determination, set forth below, is based on the information above, your responses to our January 10, 2022, request for additional information, our independent research, and the application of one of the two aforementioned tests pronounced by the Court as to whether an article falls within the meaning of “drug paraphernalia” pursuant to 21 U.S.C. § 863(d). Specifically, our determination considers whether the subject merchandise is “primarily intended for use,” in the manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. As previously stated, the “primarily intended for use” test considers the stated purpose of multiple-use articles while examining whether the “likely use of customers generally…can render a multiple-use item

The relevant statute, 21 U.S.C. § 863, provides, in pertinent part: In generalIt 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; orto import or export drug paraphernalia. (d) “Drug paraphernalia” definedThe 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