ENF 4-02 OT:RR:BSTC:IPR H115995 WRB
Barry M. Boren
One Datran
9100 South Dadeland Boulevard
Suite 1809
Miami, Florida 33156
RE: Admissibility and tariff classification of certain “cigar wraps”; Drug paraphernalia; 21 U.S.C. § 863; Blunts; Cigar Wraps; Marijuana or Cannabis
Dear Mr. Boren,
This is in response to your request for an admissibility ruling, dated June 2, 2010 regarding the cigar wraps that your client, Treezwrap Marketing & Distribution, LLC (“Treezwrap”), intends to import from the Guyana. You requested a ruling (Request) as to whether the articles that Treezwrap intends to import constitute drug paraphernalia as set forth in 21 U.S.C. § 863. You provided samples for our examination.
FACTS:
You describe the articles at issue as “Natural Leaf Cigar Wraps” that are produced in Guyana. They are described as 100% natural leaf flavored cigar wraps packaged in re-sealable foil pouches to maintain moisture and freshness. To use the product, the consumer withdraws a wrap from the re-sealable pouch, and then places the desired amount and mixture of loose or cigar tobacco blend on the tobacco wrap and rolls the wrap to form an appropriately sized cigar. The remaining segment of the tobacco cigar wrap can be stored in the re-sealable foil pouch to maintain moisture and freshness. The consumer applies a small amount of moisture along the thinnest edge of the rectangle to seal the wrapped cigar. In this manner, a custom-tailored cigar is made to meet the requirements of the consumer as to the flavor and size of a cigar. The packaging refers to the product as “100% natural RYO tobacco cigar wraps.” The Treezwrap products are tobacco leaf pre-cut to the size of a leaf wrapper.
You contend that the Treezwrap brand cigar wraps are not designed, intended, or used as drug paraphernalia. Rather, you argue, they are, at most, a mixed-use product, and that numerous mixed-use products including, but not limited to scales, cigarette papers (including Zig-Zag's), pipes, ashtrays, hookahs and various other products, are admissible. Your client asserts that the
cigar wraps imported by Treezwrap are not, and never have been designed, manufactured, intended, promoted, advertised, sold or intended to be used as drug paraphernalia. Rather, you assert that they were and are designed, manufactured, promoted, adevertised, sold, and intended for use as cigar wrappers so consumers can save money by rolling their own cigars.
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 Treezwrap:
ISSUE:
Whether the cigar wraps under consideration constitute drug paraphernalia for 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 (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 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).
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.”
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 articles at issue, we conclude that the cigar wraps at issue are neither “primarily intended” nor “designed for use” with drugs, and therefore do not constitute drug paraphernalia as defined in 21 U.S.C. § 863. The “designed for use” standard requires that the objective features of the merchandise make it “designed specifically for use with controlled substances.”
The “designed for use” element in the statute refers to the manufacturer's design and not the intent of the retailer or customer. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 501 (1982). In Hoffman Estates, the court explained that 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.” Since the cigar wrappers at issue are designed for use with tobacco and not with controlled substances, they do not meet the “designed for use” standard.
As you state in your ruling request, “They (the Treezwrap brand cigar wraps) are, at most, a mixed-use product.” Cigar wraps may be considered mixed-use items which 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.” As cigar wraps are mixed-use items, we turn to the “primarily intended” for use standard. The phrase “primarily intended” indicates that it
is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia. See Posters ‘N’ Things, 511 U.S. at 522, n. 11. The standard for determining whether the cigar wraps are prohibited drug paraphernalia is not whether the items are compatible for use with illicit substances, but whether they are primarily intended for use with illicit substances.
A consideration of the logically relevant factors listed in 21 U.S.C. § 863(e) reveals that the cigar wraps are not primarily intended for use with illicit substances. The packaging and labeling of the items supports Treezwrap’s assertion the cigar wraps are intended to be used as a tobacco product. For example:
The product packaging supplied as samples bears 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 labeling on the packaging makes it clear that the package contains cigar wraps, and that the terms “blunt” and “blunt wrap” do not appear anywhere on the cigar wrap packaging or in its advertising material. The Treezwrap product packaging makes no reference to “blunts” or “blunt wraps.” They reference “cigar wrappers” and note that the package contains “100% natural RYO tobacco.”
Nothing in the design of the sample Treezwrap product packaging indicates they are primarily intended for use with controlled substances. The packaging indicates it is to be used as a cigar wrapper.
Treezwrap is a Federally-licensed tobacco product importer, and has a distributor's license from the State of Florida selling exclusively to government licensed distributors and retailers.
Treezwrap also advertises on the internet and in trade show magazines. The product is also shown at legitimate industry trade shows.
Treezwrap cigar wraps are sold in tobacco shops and displayed as cigar wrappers. They come in multiple flavors, while items used as drug paraphernalia generally are not supplied in flavors.
The items are invoiced and sold as cigar wrappers. One hundred percent (100%) of the product is sold as cigar wrappers.
The record provides ample evidence that Treezwrap is engaged in the legitimate tobacco products business. As you state in your submission, Treezwrap is licensed as both a tobacco importer and a manufacturer, uses only licensed tobacco distributors and who distribute Treezwrap’s product only to licensed tobacco retailers and wholesalers. Furthermore, the record contains evidence that the products at issue are advertised as tobacco products in tobacco trade publications.
We also note that the factors discussed above clearly distinguish the particular cigar wraps at issue in this ruling from the product at issue in HQ H047601, and thus this ruling will not affect that prior ruling. In light of the above, we determine that the cigar 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 cigar wraps do not constitute drug paraphernalia for the purposes of 21 U.S.C. § 863(d).
HOLDING
The above-referenced cigar 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 W. Richmond Beevers of my staff at (202) 325-0084.
Sincerely,
George Frederick McCray
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Immigration Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection