OT:RR:BSTC:CCR HQ H308808 MNM
Ms. Cecelia Rothrock, LCB, CCS
Crane Worldwide Logistics, LLC 1500 Rankin Road
Houston, Texas 77073
RE: 21 U.S.C. § 863; Drug Paraphernalia; Portibol Collapsible Water Pipe; LDM Hospitality, LLC; bong.
Dear Ms. Rothrock:
This is in response to your ruling request dated January 7, 2020, sent to the National Commodity Specialist Division (“NCSD”) on behalf of LDM Hospitality, LLC (“LDM”) regarding the tariff classification of a “Collapsible Water Pipe” under the brand name “Portibol.” The NCSD forwarded your request to this office for a determination as to whether the Portibol water pipe constitutes prohibited drug paraphernalia within the meaning of 21 U.S.C. § 863 and therefore, inadmissible into the United States. Our ruling is set forth below.
FACTS
You describe the subject merchandise, called the Portibol, in your ruling request as follows:
…a highly engineered, patented design that enables users to mobilize the device for use outside the home for smoking tobacco and tobacco related products. Its purpose is to provide users with a glass alternative without sacrificing effectiveness and ease of use. The product features a proprietary percolator design with numerous holes and slits to produce maximum smoke. The product is fully expandable and can be quickly disassembled and re-assembled with simple technique.
Your ruling request does not indicate that the Portibol water pipe is available for purchase at this time.
Images of the Portibol as provided in your ruling request are below.
Figure 1 photo included in ruling request submission depicting Portibol base plate
Figure 2 photo included in ruling request submission depicting Portibol Extension, Water Basin (Body), and Base Plate connected
Figure 3 photo included in ruling request submission depicting from top clockwise: Portibol packaging (appears two bowls included), overhead view of Base Plate’s Perforated Floor, and Mouthpiece (Stem)
Figure 4 photo included in ruling request submission depicting Portibol packaging and Mouthpiece (Stem)
ISSUE
Whether the subject water pipe falls within the meaning of drug paraphernalia pursuant to 21 U.S.C. § 863 and therefore, inadmissible to import into the United States.
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.” 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) the court in Posters ‘N’ Things identified the previous statute 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 standard, 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 multiple possible 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 second standard, “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 in the present case is based upon all of the information and discussion in this ruling and the application of the two 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). The two tests are whether the article is (1) “primarily intended for use,” or, (2) “designed 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.
The Portibol 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.
Although you describe the Portibol as intended for use with tobacco products in your classification request, Portibol’s online social media and YouTube presence does not indicate that a legitimate use for the subject water pipe exists within the community for which the Portibol is intended. See 21 U.S.C. § 863(e)(7). LDM’s social media marketing on their Instagram and YouTube accounts under the moniker “Portibol Company,” presents many photos of their product accompanied by marijuana culture-themed hashtags, thus showing that the Portibol is intended to be used with cannabis. See below Instagram posts and YouTube clips screenshots from February 2017 showcasing a Portibol prototype, the former which include hashtags: “#weed,” “#marijuana,” “#ganja,” “#cannabis,” and “#bong.”
Figure 5 YouTube ad for the Portibol, shown fully assembled/extended
Figure 6 YouTube ad for the Portibol, depicting a conventional glass bong to the left of the Portibol
Figure 7 (above) Description on Portibol Company’s Instagram page, suggesting Portibol as an alternative to a “fancy glass water bong”
Figure 8 (above) Portibol’s Instagram page; hashtags “#weed,” “#marijuana,” “#ganja,” “#cannabis,” and “#bong.” Claims the Portibol “allow[s] for freedom of movement and transport.”
Figure 9 (left) Portibol Co.’s Instagram page, commending Portibol as “the new generation of plastic bongs”
Figure 10 (left) Portibol Co.’s Instagram page, advertising “Free Mary Jane” and “Free the Tree” t-shirts for Portibol Indiegogo campaign supporters.
Figure 11 (above) Portibol Co.’s Instagram page, with hashtags “#weed,” “#marijuana,” “#ganja,” “#cannabis,” and “#bong.”
Figure 12 (left) Portibol Co.’s Instagram page, with statistics on “[t]he new cannabis consumer,” accompanied by hashtags “portibol,” “#weed,” “#marijuana,” “#ganja,” “#cannabis,” and “#bong.”
Further, the name of the subject water pipe, “Portibol,” alone is a reference to its intended illicit use with cannabis. “Porti-” refers to the portable, collapsible design of the water pipe; and “-bol” is likely a reference to a water pipe’s or bong’s “bowl.” A bowl is where dry flower cannabis is placed in a smoking apparatus. The cannabis user ignites the cannabis in the bowl (typically with a lighter) to combust the plant matter and inhales the resulting smoke through the water pipe’s or bong’s chamber. The Portibol is Designed for Use with Cannabis
With respect to the “designed for use” test, the Court in Village of Hoffman Estates, 455 U.S. 489 (1982), stated 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.” 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 the contrived use of a bong as a flower vase). Based upon the information provided and the discussion above, we find that the subject water pipes do possess objective characteristics which establish that they are designed specifically for use with marijuana which is a controlled substance.
Based on your submission, the subject water pipe appears to be designated as drug paraphernalia pursuant to 21 U.S.C. § 863(d) because it is a plastic pipe with a small bowl. See 21 U.S.C. § 863 (d)(1). As discussed above, the Portibol on LDM’s social media accounts is consistently referred to as a “bong.” Here, the objective characteristics of the Portibol bong indicate that it is used to smoke or vaporize dry flower cannabis. A bong is a type of marijuana pipe that has a chamber to hold water to cool off smoke before it is inhaled into the user's mouth. See https://www.grasscity.com/knowledgebase/stoner-dictionary.html. Further, according to LeafScience.com, “[m]arijuana bongs, also known as water pipes, are one of the most popular ways to smoke marijuana.” Due to its durability, plastic is a material commonly used in the production of bongs as an alternative to glass. The Portibol, according to your submission, is intended to be “injection molded from high quality polycarbonate to ensure glass-like qualities with superior durability and heat resistance.” Polycarbonate is a naturally transparent amorphous thermoplastic, and our research revealed that there are other polycarbonate water pipes and bongs sold in the online marketplace. Therefore, the Portibol is a bong, which pursuant to 21 U.S.C. § 863 (d)(12) is drug paraphernalia. Additionally, as discussed above, bongs are often interchangeably referred to as “water pipes,” and our research also indicates that bongs are a subtype of water pipes. Your ruling request consistently refers to the Portibol as a “water pipe,” and therefore we also conclude that the subject pipe is drug paraphernalia pursuant to 21 U.S.C. § 863 (d)(2).
Accordingly, in light of all of the above, we determine that the Portibol is drug paraphernalia within the meaning of 21 U.S.C. § 863(d). Therefore, it is 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) as well as the logical relevant factors set forth in 21 U.S.C. § 863(e) and is therefore prohibited from importation into the United States.
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