Pipes; drug paraphernalia; 21 U.S.C. § 863

HQ 114742 December 17, 1999 RES-2-RR:IT:EC 114742 CC CATEGORY: Restricted Merchandise Nancy Brook Pichincha 8757 S.W. 129 Street Miami, FL 33176 RE: Pipes; drug paraphernalia; 21 U.S.C. § 863 Dear Ms. Brook: This is in response to your letter of April 10, 1999, concerning the admissibility of certain pipes. FACTS: According to your submission, you import handicrafts from Peru and Ecuador which you sell to gift shops, museums, zoos and amusement parks all over the U.S. You have had difficulty importing two types of decorative pipes, which you state are ordered by gift shops and tobacco stores. You request a binding ruling on the two types of Peruvian pipes and have submitted samples for our review. One pipe is made of bamboo and has a ceramic bowl and stone decorations. The pipe is 11 inches long and 2½ inches wide at its maximum width. The other pipe is comprised of bullhorn with ceramic and stones, has a thimble-size bowl, and is 6¼ inches high. ISSUE: Whether the subject pipes are drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863.  LAW AND ANALYSIS: 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. There is nothing in your submission, e.g., any of the documentation listed in 21 U.S.C. § 863(e), which shows that the subject pipes are traditionally intended for use with tobacco products. In addition, the subject pipes are the type of article listed as drug paraphernalia in 21 U.S.C. § 863(d). Consequently, we find that the subject pipes are considered drug paraphernalia pursuant to 21 U.S.C. § 863.  HOLDING: The subject pipes are drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863. Sincerely, Jerry Laderberg Chief Entry Procedures and Carriers Branch