OT:RR:BSTC:CCR HQ H306125 MNM
Gregory T. Ourada
Hill, Kertscher & Wharton, LLP Riverwood 100 3350 Riverwood Parkway Suite 800
Atlanta, GA 30339
RE: 21 U.S.C. § 863; Drug Paraphernalia; ElevareCo Saber; Elevated Society, LLC; desktop vaporizer
Dear Mr. Ourada:
This is in response to your correspondence dated August 12, 2019, in which you requested a prospective ruling in accordance with 19 C.F.R. § 177.11, regarding the admissibility and classification of the ElevareCo Saber vaporizer. As our research revealed that units of the ElevareCo Saber vaporizer have been imported into the U.S. since your submitted your ruling request, we are issuing to you a ruling as to whether the subject merchandise constitutes prohibited merchandise within the meaning of 21 U.S.C. § 863. Our ruling is set forth below.
FACTS
The subject merchandise, called the ElevareCo Saber (“the Saber”), is a desktop vaporizing device described as:
capable of either combusting or vaporizing a material that is placed inside an interior chamber…Unlike most smoking or vaping devices which feature resistance-based heating elements, the Saber’s distinctive characteristic is that it uses a high-intensity battery-powered laser diode…employed in conjunction with a collimating lens…to raise the temperature of a solid-or liquid material (e.g. dried herbal compound or a liquid medium) to either combustion or vaporization temperature.
You claim in your ruling request that the Saber is to be used with herbal compounds including “tobacco, mullen [sic], raspberry leaf, chamomile, peppermint, lavender, or other aromatherapeutic herbs,” and other “vaping liquids.” Combustion of these materials results in the combustion of solid compounds and vaporization of liquid compounds, which are then inhaled by the user. According to the ElevareCo website, this technology is patent pending. In your prospective ruling request, you state that the Saber will be manufactured in China by Shenzhen Crossing Technology Co., Ltd. located in Shenzhen, Guangdong Province, China and is anticipated to be exported to U.S. Port 1704 in Atlanta, Georgia. At the time of your August 9, 2019 submission, you also claimed there are no purchase orders for the product outstanding, and you intend to sell the Saber online and through third-party distributors and retail channels.
Images of the Saber as shown on the official ElevareCo website are provided below: See website https://elevareco.com/
Image A. The Saber desktop vaporizer
ISSUE
Whether the subject vaporizer falls within the meaning of drug paraphernalia pursuant to 21 U.S.C. § 863, or alternatively, may be legally imported into the United States pursuant to the exemption provided in 21 U.S.C. § 863 (f)(2) as an item “traditionally intended for use with tobacco products.
LAW AND ANALYSIS
The relevant statute, 21 U.S.C. § 863, provides, in pertinent part:
In general
It is unlawful for any person-
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
to import or export drug paraphernalia. * * *
(d) “Drug paraphernalia” defined
The term “drug paraphernalia” means 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, 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 . . .;
(6) miniature spoons . . .;
(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) Matters considered in determination of what constitutes drug
Paraphernalia. 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;
the manner in which the item is displayed for sale;
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;
direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
the existence and scope of legitimate uses of the item in the community, and
expert testimony concerning its use.
(f) Exemptions
This section shall not apply to-
(1) 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.
The U.S. Supreme Court examined the meaning of “drug paraphernalia” pursuant to 21 U.S.C. § 863 in the matter of Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), and considered the phrases (1) “primarily intended for use” and (2) “designed for use” in such cases. Although the Court was interpreting the text of the former statute, 21 U.S.C. § 857, in 1990 Congress repealed and replaced that section of title 21 with the present statute, 21 U.S.C. § 863. In Posters ‘N’ Things section 863 is identified as identical with the present statute. See Crime Control Act of 1990, Pub. L. 101-647, §2401, 104 Stat. 4858. See also 511 U.S. at 516, n. 5; United States v. Search of Music Marketing, Inc., 212 F.3d 920, 925 (6th Cir. 2000).
With respect to the first phrase identified above, the Court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. Posters ‘N’ Things, 511 U.S. 513, 521 (1994). Moreover, 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.” Id. at 521 n.11. Additionally, the court stated 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.” Id. at 521 n.11. 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 is for use with illegal drugs.
With respect to the above-mentioned second phrase, “designed for use,” the Court referred to Village of Hoffman Estates et al v. The Flipside, Hoffman Estate, Inc., 455 U.S. 489 (1982), where the Court stated that it is also to be understood objectively and that it refers to an item’s objective characteristics. Id. at 501. “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….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.” Village of Hoffman Estates et al v. The Flipside, Hoffman Estate, Inc., 455 U.S. 489, 501 (1982).
Our determination, set forth below, is based on all of the information above, our independent research and the application of one the two aforementioned tests pronounced by the Court as to whether an article falls within the meaning of “drug paraphernalia” pursuant to 21 U.S.C. § 863(d). Specifically, our determination considers whether the subject merchandise is “primarily intended for use,” in the manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. As previously stated, the “primarily intended for use” test considers the stated purpose of multiple-use articles while examining whether the “likely use of customers generally…can render a multiple-use item drug paraphernalia.” Posters ‘N’ Things, supra. Accordingly, our analysis will examine the article’s primary intended use relative to the factors set forth in 21 U.S.C. § 863(e); with particular focus on Factors: (2), (3), (4), and (7). As will be discussed, and as the evidence reveals, the component features and accessories of the Saber demonstrate that its likely use falls squarely within the purview of the enumerated factors set forth in 21 U.S.C. § 863(e).
The Saber is primarily intended for use with cannabis
With respect to the “primarily intended for use” test, “it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” Posters ‘N’ Things, supra. While your submission includes draft instructions for the Saber detailing use of the device for vaporizing various dry herbs and oils for inhalation and for aromatherapy, our research indicates that these instructions for allegedly legitimate uses do not overcome the fact that there is clear evidence that this product is used with cannabis. Further, the manner in which the subject merchandise is marketed and displayed is indicative of the product’s intended use. See 21 U.S.C. § 863(e) (2), (3) & (4). Specifically, Elevareco has promoted the Saber for such impermissible use on its social media accounts. On February 15, 2020, Elevareco shared on their Instagram page a link to a YouTube video review of the Saber. The reviewer in the video uses the Saber to vaporize and consume cannabis. The same reviewer posted a review of the Saber, dated February 15, 2020, and offers his critique of the Saber:
I recently loaded an indica-dominant strain into the Saber and am experiencing all of the taste and mental stimulation of other smoking methods… MINUS THE HARSH SMOKE! This is a big plus for my lifestyle because Clean Cannabis Consumption is the only way I’m going to stay healthy AND maintain my career as a vocalist. For me, this solidifies the marriage of Music and Mary Jane forever! Thanks, Elevaré! As far as residual, lingering pot smells in the air, there are some…
Further, on March 20, 2020, Elevareco shared on their Instagram page a photo of a model using a Saber and a link to the model’s personal Instagram page. On the model’s personal Instagram page, she has posted a video review of the Saber and tagged Elevareco @elevareco. During the review she vaporizes cannabis with the Saber and states that “it conserves a lot of weed,” and “I’m so high.” The model’s previous March 2, 2020 Instagram post on her personal page is an “Official Promo Video” for the Saber. The video is of the model walking through an alley with the Saber and using it as a smoking device before the screen fades to black with the text “www.Elevareco.com.”
Additionally, your argument that the Saber is intended for and capable of aromatherapeutic use does not erase the fact that the Saber is primarily intended for use with cannabis. Your statement that “[a]n entire industry revolves around the consumption of herbal smoking blends” coupled with the barefaced intention to participate in but no record of registration or attendance at aromatherapy tradeshows alone are insufficient to establish that the Saber is primarily intended for a legitimate aromatherapeutic use. On May 28, 2020, Elevareco shared on their Instagram page a video of a model “using the Saber with a pinch of lavender to fill his space with a mild relaxing scent as he gets ready to tackle the day!” In the comments section of the post, one verified account stated “By far my favorite bong in the world! I use mine every day!” to which ElevareCo responded, “That means so much to us! Thank you!” Further, another commenter observes, “Interesting, so you can smoke and also use it for incense.”
You also claim that “[m]ost American companies in the vaporizer and hookah industries,” including Kingpen brand vaporizers, “highlight that their machines should only be used with legal substances such as herbal blends and oils.” From our research, we have found that Kingpen vaporizers are explicitly advertised as cannabis oil vapes, including as indicated on their packaging and accompanying instructions, and are sold by cannabis dispensaries in California.
The Saber is designed for use with cannabis
The submission on behalf of ElevareCo claims that the Saber does not fall within the meaning of drug paraphernalia set forth in 21 U.S.C. § 863 because the vaporizer is not “designed for use” with controlled substances, but rather herbal compounds including “tobacco, mullen [sic], raspberry leaf, chamomile, peppermint, lavender, or other aromatherapeutic herbs,” and other “vaping liquids.” This claim is not compelling. Your argument that the fact that the Saber itself is not readily concealable is dispositive in its classification as a permissible device is not relevant in the analysis of whether the Saber is drug paraphernalia; e.g. bongs, which are per se drug paraphernalia under § 863(d), are not typically “concealable.” You further contend that the Saber’s removable container is compatible with a wide variety of solid and liquid material, and is not specifically designed to accommodate small amounts of a controlled substance like cannabis or the crystalline forms of methamphetamine or crack cocaine. You argue that the Saber ought to be admissible as it “is most closely similar to the Volcano Vaporizer (“Volcano”) and the hookah, both of which have been approved by CBP for importation,” yet the primary difference between the Saber and these devices, the laser heat source, “does not mean that the Saber is exclusively suitable for controlled substances.”
Based upon the information provided and the discussion above, we find that the subject Saber vaporizer does possess objective characteristics which establish that it is designed specifically for use with controlled substances—cannabis. First, your argument that Saber’s removable container is compatible with a wide variety of solid and liquid material and is not specifically designed to accommodate small amounts of a controlled substance like cannabis does not hold up against our research. According to Elevareco’s assertion in their Instagram page’s comments section on a July 5, 2019 post, the Saber’s bowl in which the user inserts the intended material to vaporize can hold “about a half gram of herbal blend.” When asked in the comments section on a January 9, 2020 post “How much materials does it [the Saber] hold,” Elevareco responded with “0.4,” likely indicating that the Saber’s bowl can accommodate 0.4 grams of “dry herbal blend.” Our research finds that the average bowl found in per se drug paraphernalia commonly used in the consumption of cannabis (e.g. bongs, water pipes, and bubblers) typically holds 0.3 to 0.5 grams of cannabis. Therefore, the Saber’s bowl by virtue of its design and size is compatible with cannabis use.
You argue that the Saber ought to be admissible as it “is most closely similar to the Volcano Vaporizer (“Volcano”) and the hookah, both of which have been approved by CBP for importation;” however you concede that the primary difference between the Saber and these devices is its laser heat source. Further, you claim that the Saber’s laser heat source “does not mean that the Saber is exclusively suitable for controlled substances.” The Saber’s unique and novel utilization of a laser diode (“LD”) laser as a heat source to combust materials or liquid alone precludes the determination of admissibility of the Saber to solely rely on previous rulings from our office. The Volcano Vaporizer (Headquarters Ruling (HQ) H169675, September 15, 2011) is an electromechanical device that is designed to vaporize chemical compounds from plant material or oils by means of heated air, a process also known as convection heating. The Saber’s laser combusts the material the user intends to consume via conduction, which is a fundamentally different process of heating the target material; therefore Elevareco may not rely on the admissible status of the Volcano when requesting a ruling on the admissibility of the Saber.
Your submission on behalf of Elevareco also asserts that the Saber’s similarity to three admissible hookahs for which our office has issued a ruling (HQ H155055, April 12, 2011 (electric hookah); HQ 116060, November 7, 2003 (hookah); HQ H022179, April 18, 2008 (hookah)) should, in turn, grant the Saber admissible status as a permissible smoking/vaping and aromatherapy device. We do not agree that a passing visual similarity to a traditional hookah or nagileh (presence of a “mouthpiece connected to a hose and a loading chamber where substances can be ignited for inhalation”) sufficiently exempts the Saber from drug paraphernalia status on the basis of its design. Further, Elevareco on their social media accounts has denied that the Saber is a hookah. When another Instagram user posed the question “is this weed or hooka [sic]?” on a December 23, 2019 post on Elevareco’s Instagram page, Elevareco responded, “it is not a hookah.” With its inconsistent representations, Elevareco may not rely on the Saber’s alleged similarity in design to admissible hookahs in order for the Saber to be exempt from drug paraphernalia status.
Looking to the accessories included with the Saber, the herbal shredder, “a flat metallic block with sharp grating grooves concentrated in its center that can be rubbed against target media such as tobacco or peppermint that need to be reduced into smaller pieces so they can more easily burn,” is likely drug paraphernalia by design; it is similar in function to grinders found by our office to be impermissible drug paraphernalia. There are very similar products to the Saber’s companion “herbal shredder” on the market commonly described as “grinder cards.” Grinder cards are shaped and sized similarly to a credit card and allow a cannabis user to discretely carry a means of shredding dry cannabis flower for use in a joint or bowl of a bong or pipe. The inclusion of the “herbal shredder” which appears to be designed for shredding cannabis with every Saber to be sold indicates that the Saber itself is designed for cannabis use, as well.
The Saber’s use of a laser to combust plant material likely indicates that the device is designed for use with cannabis, despite your submission claiming otherwise. Elevareco’s marketing materials and social media presence consistently compare the Saber’s laser as harnessing the power of the sun by igniting “herbal blend” with a magnifying glass. “Solar hits,” or igniting dry flower cannabis by directing the heat of sun light with a magnifying glass and combusting the plant material, are a trend in the cannabis-using community. The cited “benefits” of solar hits are that it is a zero-waste, sustainable way to vaporize cannabis while avoiding the unpleasant taste and toxicity associated with fuels found in lighters like butane, which is popularly used in the cannabis vaping community. This information coupled with the following text of Elevareco’s “About Us” page on their official website indicates that the use of the laser in the Saber is designed to combust and vaporize dry flower cannabis:
Setting the stage for the future, we’ve designed a powerful laser ignition smoking device that is simple to use, beautiful to showcase, and cleaner for the body than inhaling butane fumes from a lighter.
Further, this statement along with the entirety “About Us” page completely omits the use of the Saber as an aromatherapy device, and thus is in contravention of your argument that that the Saber is a multi-use device in its design. Therefore, we determine that the subject vaporizers do fall within the relevant meaning of “designed for use” in inhaling an illegal controlled substance (or any of the other actions enumerated in 21 U.S.C. § 863(d)). See 21 U.S.C. § 863. Posters ‘N Things v. United States, 511 U.S. 513, 516, 521 (1994). Village of Hoffman Estates et al v. The Flipside, Hoffman Estate, Inc., 455 U.S. 489, 501 (1982).
The Saber is not an “item…traditionally used for tobacco products,” and therefore may not be legally imported into the United States because the exemption set forth in 21 U.S.C. § 863(f)(2) does not apply.
As discussed above, the Saber is primarily intended for and designed for cannabis consumption. Therefore, your submission’s argument that the Saber “closely resembles in form and function a hookah in that, like a hookah, it has a mouthpiece connected to a hose and a loading chamber where substances can be ignited for inhalation” is not a convincing argument that the Saber is intended for use with tobacco. Additionally, there is no indication from our research that a laser diode heat source would be an effective means of vaporizing dry tobacco. Further, you have not provided any evidence that Elevareco is a licensed vendor of tobacco products to further bolster the argument that the Saber is traditionally used for tobacco products.
Finally, the fact that cannabis possession is legal under the state laws of California, Washington, and other states has no bearing on the present ruling request; regardless, the sale and possession of cannabis remain unlawful in Georgia, the state in which you intend to import the subject merchandise. Although the possession and use of cannabis may be legal under some states’ laws, 21 U.S.C. § 863 is a federal statute that prohibits the importation of drug paraphernalia. A core principle of American law is that the federal laws enacted by Congress constitute the supreme law of the land. Specifically, the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) requires that, in the event of any conflict between state and federal law, federal law must be applied. In Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261, 1265-66 (2012), the Supreme Court elaborated:
Congress may, of course, expressly pre-empt state law, but “[e]ven without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances.” First, “state law is naturally preempted to the extent of any conflict with a federal statute.” Second, we have deemed state law pre-empted “when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively.”
It is clear that any interpretation of e.g., California or Washington, state law to permit the importation of drug paraphernalia would be in “positive conflict” with 21 U.S.C. § 863. The Controlled Substances Act, which governs the drug paraphernalia import ban, specifically rejects any intention “on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State…” The statute nevertheless states, however, that it preempts state law in circumstances in which “there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.” In the context of 21 U.S.C. § 863, federal law does not “authorize” the importation of drug paraphernalia under any circumstances. Instead, 21 U.S.C. § 863(a) relates in part to the importation and exportation of drug paraphernalia, an area of paramount federal concern. By prohibiting the import of drug paraphernalia into the United States, Congress sought to protect all states from the problems associated with drug paraphernalia. The current version of this provision was drafted broadly to provide a comprehensive prohibition on the importation of drug paraphernalia and the transportation of drug paraphernalia in interstate commerce. If a state could essentially exempt itself from this federal statutory regime, then importations of drug paraphernalia into that state could easily be transported to other states in which drug paraphernalia remains illegal. We decline to interpret 21 U.S.C. § 863(f)(1) in this way because doing so would deprive other states of the full protections afforded by federal law.
Accordingly, in light of all of the above, we determine that the subject vaporizers are drug paraphernalia within the meaning of 21 U.S.C. § 863(d). Therefore, they are prohibited from importation into the United States.
HOLDING
The subject merchandise is per se “drug paraphernalia” pursuant to the statutory definition set forth in 21 U.S.C. § 863(d) and is therefore prohibited from importation into the United States; further, the subject merchandise is not exempted from the prohibition on the importation of drug paraphernalia set forth in 21 U.S.C. § 863(a).
Sincerely,
Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of Trade, Regulations and Rulings U.S. Customs and Border Protection