ENF 4-02 OT:RR:BSTC:IPR H093675 SEK
Barry M. Boren
One Datran
9100 South Dadeland Boulevard
Suite 1809
Miami, Florida 33156
RE: Request for reconsideration of Headquarters Ruling Letter (“HQ”) H068955; Drug Paraphernalia; 21 U.S.C. § 863; Flavored Tobacco Wraps; Leaf Wraps; Blunts; Marijuana or Cannabis
Dear Mr. Boren:
This letter is in response to your letter of January 22, 2010, requesting reconsideration of the determination made in Headquarters Ruling Letter (“HQ”) H068955, dated December 11, 2009, which concluded that certain flavored tobacco wraps are prohibited and inadmissible merchandise pursuant to 21 U.S.C. § 863. HQ H068955 was issued to Charles Laber of Sack & Menendez on behalf of your client, Greater Tampa Bay Cigars (“GTBC”). This office also received your request for a ruling on September 8, 2009 on behalf of GTBC. In support of the reconsideration of the determination made in HQ H068955, we will consider the information and materials contained in your January 7, 2010 submission “Supplement to Ruling Request Dated September 8, 2009” (“Submission”).
FACTS:
In your Submission, you argue that the tobacco wraps at issue in this case do not constitute drug paraphernalia and are not primarily intended for use with marijuana. In support of this argument, you provide the following evidence: that GTBC manufactures a variety of tobacco products in addition to the tobacco wraps at issue and is a Federally licensed tobacco importer; that GTBC advertises in traditional tobacco trade publications; that GTBC products all contain health warnings required on tobacco products; that the products at issue reference “tobacco wraps”; and that the Good Times logo does not have any correlation with a marijuana leaf.
Several samples of the merchandise were received in this office and below are images of the some of the samples that are representative of the cigar wraps imported by GTBC.
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 an initial matter, 19 U.S.C. § 1625(c) requires that proposed modifications or revocations of rulings that have been in effect for more than 60 days must be published in the Customs Bulletin, and interested parties must have at least 30 days to submit comments on the proposed modification or revocation. 19 U.S.C. § 1625(c). This reconsideration of HQ H068955 is not subject to the notice and comment requirements of 19 U.S.C. § 1625(c) because HQ H068955 has been in effect for less than 60 days.
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 not “likely to be used for” the ingestion of marijuana and other illicit substances, and therefore do not constitute drug paraphernalia as defined in 21 U.S.C. § 863.
We conclude that the flavored tobacco wraps and leaf wraps at issue are not primarily intended and are not “likely to be used for” (see Posters ‘N’ Things, supra) the ingestion of marijuana. A consideration of the logically relevant factors listed in 21 U.S.C. § 863(e) reveals that the tobacco wraps are not primarily intended for use with illicit substances. The packaging and labeling of the items supports GTBC’s assertion the tobacco wraps are intended to be used as a tobacco product. For example, as you note in your submission, the labeling of the packaging of the GTBC tobacco wrap products reference “tobacco wraps” and note that the package contains “rolling tobacco.” The packaging describes the contents as “cigar wrappers” and states that it is “For Cigar Rolling Use Only.” The packaging of all of the brands contains the legally required cigar health warnings that also indicate to the customer that the package contains cigar products, and are intended to be used as cigars. The presence of these displays on the packaging of the tobacco wraps indicates that they are primarily intended to be used with tobacco.
The record provides evidence that GTBC is engaged in the legitimate tobacco products business. As you state in your submission, GTBC is a Federally licensed tobacco product importer, and imports several tobacco products including: Stonewood cigars, Good Times pipe tobacco, Little-N-Wild pipe tobacco, Good Days pipe tobacco, Good Days cigars, Country Man chewing tobacco, Good Times Cigarillos, Tampa stogies, Good Times flat wraps, Good Times leaf wraps, Double Maestro cigars, Good Times Rum Crookette cigars, Good Times blunt cigars, Gator smokeless tobacco, Happy Times Superillos, Remington filter cigars, and tipped cigars. Submission, p. 4. GTBC advertises these products in the Good Times Product Catalog, which is used for sales only to licensed tobacco distributors. Id. GTBC also advertises its products in traditional tobacco trade publications. Submission, p. 16. GTBC has obtained a Tobacco Import Permit issued by the Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury. GTBC’s strong presence in the tobacco products business supports the finding that the tobacco wraps are primarily intended for use with tobacco products such as Good Times pipe tobacco, and are not primarily intended for use with marijuana or other illicit substances.
Furthermore, all of the Good Times products listed above feature the Good Times trademark (USPTO Reg. No. 3,592,874), which is pictured above and contains an image of an automobile and a palm tree. In HQ H068955, we stated that “[t]he 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.” HQ H068955, p. 7. However, the presence of this trademark on products that are not used with marijuana, such as Country Man chewing tobacco, supports GTBC’s argument that the palm tree does not represent a marijuana leaf, and instead represents GTBC’s home state of Florida. Submission, pp. 4 – 7. Since the Good Times trademark is widely used on many products not associated with marijuana and has an established significance unrelated to the use of the product, the presence of the trademark on the items at issue does not support a finding that the tobacco wraps at issue are primarily intended for use with marijuana.
In light of the discussion above, we determine that the tobacco wraps under consideration are not 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 described above do not constitute drug paraphernalia for the purposes of 21 U.S.C. § 863(d).
HOLDING:
The above-referenced tobacco wraps do not constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d).
If you have any questions regarding this determination, please contact Suzanne Kane of my staff at (202) 325-0119.
EFFECT ON OTHER RULINGS:
HQ H068955, dated December 11, 2009, is hereby revoked as set forth herein with respect to the admissibility of the tobacco wraps.
This reconsideration of HQ H068955 is not subject to the notice and comment provisions of 19 U.S.C. § 1625(c) because HQ H068955 has been in effect for less than 60 days.
Sincerely,
Charles R. Steuart, Chief
Intellectual Property Rights & Restricted Merchandise Branch