ENF 4-02 OT:RR:BSTC:IP H068955 SEK
Mr. Charles Laber
Sack & Menendez, Inc.
1604 4th Avenue
Tampa, FL 33605
RE: Drug Paraphernalia; 21 U.S.C. § 863; Flavored Tobacco Wraps; Leaf Wraps; Blunts; Marijuana or Cannabis
Dear Mr. Laber:
This letter is in response to your June 8, 2009 dated request to U.S. Customs and Border Protection (CBP) on behalf of your client, Greater Tampa Bay Cigars (Tampa, Florida). In your request, you seek an advance or pre-importation ruling with respect to the classification of cigar wrappers under the Harmonized Tariff Schedule of the United States (HTSUS). Please note that we have determined below that the merchandise that is the subject of your ruling request to be prohibited and inadmissible merchandise, an advance or pre-importation ruling will not be issued with respect to the classification of the merchandise under the HTSUS. See 19 CFR 177.7(a) (No ruling letter will be issued in response to a request for a ruling in any instance in which it appears contrary to the sound administration of the Customs and related laws to do so).
FACTS:
In your letter, you state, in part, that:
On behalf of Greater Tampa Bay Cigars 5116 LeTourneau Circle, Tampa, FL, we hereby request a binding Harmonized Tariff classification ruling for the enclosed items.
The items are as follows. 1) Flat Wrap flavored tobacco wrap, “Mango-Licious” 2) Flat Wrap flavored tobacco wrap, “Natural” 3) Leaf Wrap tobacco wrap, “Honey-Berry” flavored.
Greater Tampa Bay Cigars is an importer, manufacturer and distributor of, among other tobacco products, cigarettes, cigars, pipe tobacco, chewing tobacco and roll your own cigar fillers. The importer advises the enclosed items are cigar wrappers to be used with tobacco.
The items are manufactured in the Dominican Republic and are expected to be imported into the Port of Tampa, FL.
As described in the above request, three samples of the merchandise were received in this office with the request.
ISSUE: Whether the “flavored tobacco wraps” or “leaf wraps” under consideration constitute drug paraphernalia for the purposes of 21 U.S.C. § 863(d).
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.
In determining whether an item constitutes drug paraphernalia, 21 U.S.C. § 863(e) states as follows:
[I]n 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.
Exemptions under subsection 21 U.S.C. § 863(f)(2) provide, in pertinent part, that 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.”
In interpreting the statutory definition of drug paraphernalia, the Supreme Court has held that the government may demonstrate that an item is drug paraphernalia by showing either that an item is “primarily intended” for use with drugs, or that an item is “primarily … designed” for use with drugs. In Posters ‘N’ Things v. United States, 511 U.S. 513 (U.S. 1994), the Court, in considering the language of the statutory precursor to 21 U.S.C. § 863, analyzed the statute and determined that the phrase “primarily intended or designed for use” established objective standards for determining what constitutes drug paraphernalia. The Court determined that the “designed for use” standard focused on the physical characteristics and design features of the item:
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. See United States v. Mishra, 979 F.2d 301, 308 (CA3 1992); United States v. Schneiderman, 968 F.2d 1564, 1567 (CA2 1992), cert. denied, 507 U.S. 921, 122 L. Ed. 2d 676, 113 S. Ct. 1283 (1993). Accordingly, the “designed for use” element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
The Court also considered the “primarily intended… for use” prong of section 863(d) and concluded that this language referred to an item’s likely use rather than the subjective state of mind of the defendant. The Court also considered the “primarily intended… for use” prong of section 863(d) and concluded that mixed-use items could fall into this category of objects because “while scales or razor blades as a general class may not be designed specifically for use with drugs, a subset of those items in a particular store may be ‘primarily’ intended for use with drugs by virtue of the circumstances of their display and sale.” Since the tobacco wrappers at issue are designed for uses other than use with controlled substances, they qualify as mixed-use items that may not have been designed for use with controlled substances, but nevertheless may constitute drug paraphernalia because of “the actual use of the item in the community.”
The Court found further support for an objective construction of the statute in § 857(f), which establishes an exemption for items “traditionally intended for use with tobacco products...” The Court stated that an item’s “traditional” use cannot be based on the subjective intent of a particular defendant, and further remarked that the addition of the word “traditionally” in place of “primarily” (which Congress added in order to clarify the limits of the exemption) suggests that the original “primarily intended” language did not refer to the fundamentally different concept of a defendant’s subjective intent. Accordingly, the Court concluded that the phrase “primarily intended or designed for use” in section 857(d) does not serve as a basis for a subjective scienter requirement on the part of the defendant, but rather establishes objective standards for determining what constitutes drug paraphernalia.
In turning to the article at issue, we conclude that the tobacco wrappers and leaf wraps are “likely to be used for” the ingestion of marijuana and other illicit substances, and therefore constitute drug paraphernalia as defined in 21 U.S.C. § 863.
The association of cigars or blunts with marijuana use is well-established. According to the Office of National Drug Control Policy, the term “blunt” is a street name to describe a cigar filled with marijuana, or marijuana and cocaine. The process of “rolling a blunt”, or filling a cigar wrap with marijuana, is described as follows:
A "blunt" is made by taking something like a Phillies Blunt (any machine-made convenience store cigar will do), unrolling or splitting it open, removing the tobacco, replacing it with marijuana, and rolling it up again in the wrapper leaf which is often a "homogenized wrapper" made from bits of tobacco leaf and rolled into big sheets like paper bolts… Today, the term "Blunt" is generally associated with the Hip-Hop subculture. There are also some tobacco shops and websites that sell "blunt" papers for rolling your own cigars, or blunts, depending on your "weed" of choice.
Blunts are also used to ingest other illicit substances in addition to marijuana. Although you label the tobacco wraps at issue “Flavored Tobacco Wraps” and “Leaf Wraps” there is nevertheless a strong association between tobacco wraps or blunt wraps and cigars filled with marijuana. The tobacco wraps at issue are substantially similar to the blunt wraps previously ruled upon in HQ H041682 and HQ H047601. As we determined in the aforementioned rulings, because of the prevalent use of tobacco wraps or cigar wraps with marijuana and other illegal substances, the products at issue are likely to be used to ingest illicit substances
Furthermore, several major cities and counties have passed laws banning the sale of flavored blunts and cigar wraps because of the widespread use of tobacco wrappers to ingest marijuana. This practice of banning cigar wraps because of their common use with illicit substances is illustrated by the Boston Public Health Commission’s Regulation Restricting the Sale of Tobacco Products in the City of Boston, which bans the sale of blunt wraps, and notes in the definition of blunt wraps that they “come in flavored varieties and are heavily marketed to the youth and often used as drug paraphernalia”. Furthermore, as we stated in HQ H041682 and HQ H041682, a web search of the term “blunts” and “flavored blunts” revealed sites identifying and associating such products as those for use for the ingestion of illegal drugs, primarily marijuana. A supplemental search conducted with the terms “leaf wrap” and “flavored tobacco wraps” (as the products at issue are labeled) revealed a number of websites that sell and/or advertise flavored tobacco wraps for use with marijuana or cannabis, leading to the conclusion that tobacco wraps similar or identical to the products at issue are likely to be used as paraphernalia.
We conclude that the flavored tobacco wraps and leaf wraps at issue are primarily intended and are “likely to be used for” (see Posters ‘N’ Things, supra) the ingestion of marijuana. The packaging of the tobacco wraps and leaf wraps features a large image of a silhouette of a palm tree that is identical to the silhouette of a marijuana leaf. The prominent location and large size of this image clearly indicates that the articles are intended for use with marijuana. In addition, there is no information in the record supporting a legitimate use for the tobacco and leaf wraps. Although some of the articles at issue are labeled “tobacco wraps,” there is no other evidence demonstrating the intended use of the tobacco wraps or leaf wraps by customers who purchase them, and the record does not establish that the tobacco wraps under consideration are “traditionally intended for use with tobacco products . . .” In light of the above, we determine that the tobacco and leaf wraps under consideration are primarily intended for use in ingesting and inhaling cannabis or marijuana by the customers who purchase them. As such, the tobacco wraps and leaf wraps constitute drug paraphernalia for the purposes of 21 U.S.C. § 863(d).
HOLDING:
The above-referenced tobacco wraps or leaf wraps constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). Therefore, the tobacco wraps or leaf wraps are unlawful and inadmissible, and their importation is prohibited. 21 U.S.C. § 863(a). Any future importations of the tobacco wraps or leaf wraps will be subject to seizure. 15 U.S.C. 1595a(c).
If you have any questions regarding this determination, please contact Suzanne Kane of my staff at (202) 325-0119.
Sincerely,
Charles R. Steuart, Chief
Intellectual Property Rights & Restricted Merchandise Branch