H327540

HQ H327540 March 7, 2024 OT:RR:BSTC:CCR H327540 HKC CATEGORY: Restricted Merchandise Mr. Peter A. Quinter Gunster Brickell World Plaza 600 Brickell Avenue, Suite 3500 Miami, FL 33131 RE: Admissibility and tariff classification of hemp cones, tubes, and wraps; Drug paraphernalia; 21 U.S.C. § 863 Dear Mr. Quinter, This is in response to your ruling request, dated September 27, 2022, and subsequent correspondence regarding the hemp cones, tubes, and wraps that your client intends to import into the United States. You requested prospective rulings as to (1) whether the hemp cones, tubes, and wraps would be considered “drug paraphernalia” under 21 U.S.C. § 863, and (2) the proper tariff classification of the imported hemp cones, tubes, and wraps. Your question as to the proper classification of the subject merchandise has been referred to our Food, Textiles, and Marking Branch, who will respond under separate cover. FACTS: You describe the merchandise at issue as cones and wraps made of “100% organic, pesticide-free, non-GMO hemp.” Your client proposes to import these cones and wraps through any port of entry in the United States, to include ports of entry located in the states of Washington, Oregon, California, Arizona, New Mexico, Texas, and possibly Georgia, New York, New Jersey, Illinois, and Colorado. During subsequent correspondence, you cited to the U.S. Court of International Trade’s opinions in Eteros Technologies USA. Inc. v. United States and Keirton USA Inc. v. United States as relevant to your ruling request. Below are images of your client’s cones and hemp wrap packaging included in your ruling request and subsequent correspondence: 
 
 
 
 ISSUES: Whether the hemp cones, tubes, and wraps under consideration constitute drug paraphernalia as contemplated in 21 U.S.C. § 863. LAW AND ANALYSIS: As concerns what constitutes “drug paraphernalia” for purposes of 21 U.S.C. § 863, the statute provides, in part, as follows: In general It is unlawful for any person-- (1) 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 (3) to import or export drug paraphernalia. Under 21 U.S.C. § 863(d), the term “drug paraphernalia” is defined as follows: “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, methamphetamine, 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: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (6) miniature spoons with level capacities of one-tenth cubic centimeter or less; (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) …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; (4) the manner in which the item is displayed for sale; (5) whether the owner, or anyone in control of them 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 ratioof 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. (f) Exemptions This section shall not apply to . . . 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. In accordance with the provisions of 21 U.S.C. § 863(d), CBP’s primary emphasis is whether the subject merchandise is “primarily intended for use” with controlled substances (marijuana). The U.S. Supreme Court examined the definition of “drug paraphernalia” pursuant to 21 U.S.C. § 863 in Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), where it specifically considered the phrase “primarily intended for use” as set forth in 21 U.S.C. § 863(d). The Court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. 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.” Further, the Court held that Section 863 “states 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.” 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 are for use with illegal drugs. Recently, the Court of International Trade (“CIT”) in Eteros Technologies USA. Inc. v. United States examined the 21 U.S.C. § 863(f)(1) exception. The CIT discussed cannabis drug paraphernalia being directly imported into a state that has legalized cannabis use to a consignee in the same state. The court determined “… authorization’ by one legislative body – be it local, state, or federal – to engage in one of the enumerated activities – be it manufacture, possession, or distribution of drug paraphernalia – would be sufficient to trigger the (f)(1) exemption’s applicability.” Thus, drug paraphernalia that is destined for states that have legalized cannabis may be exempted under 21 U.S.C. § 863(f)(1). Cannabis containing tetrahydrocannabinols (“THC”) is listed as a Schedule I controlled substance, for which importation is prohibited, with the exception of hemp.  Hemp is defined as: “…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” In turning to the cones and wraps at issue, you argue that the logic of ruling HQ H115995, in which CBP held merchandise consisting of cigar wraps not to be drug paraphernalia because they were primarily intended for use with tobacco products, should apply to petitioner’s ruling request. You also contend that the cones and wraps are designed and intended for use in smoking legal tobacco-free herbal blends and therefore should not be considered drug paraphernalia. You state that herbal blend hemp wraps are common and provided photos of such wraps and their associated herbal blends from a Google search you conducted in your ruling request. You also provided an excerpt from a third-party website describing the history of herbal wraps. You cited this market for herb

As concerns what constitutes “drug paraphernalia” for purposes of 21 U.S.C. § 863, the statute provides, in part, as follows: In generalIt is unlawful for any person-- (1) 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 (3) to import or export drug paraphernalia. Under 21 U.S.C. § 863(d), the term “drug paraphernalia” is defined as follows: “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, methamphetamine, 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: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;(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) …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) nation