OT:RR:BSTC:CCR HQ H322719 AFM
Austin Ambrozi
Mr. Tokes LLC
15793 SW 146th Terrace
Miami, Florida 33196
Dear Mr. Ambrozi:
This is in response to your correspondence of December 22, 2021, in which you requested a ruling on a prospective transaction in accordance with 19 C.F.R. § 177.1, regarding the correct Harmonized Tariff Schedule of the United States (“HTSUS”) classification of The LitKit, made by Mr. Tokes LLC. The merchandise is inadmissible as it constitutes drug paraphernalia pursuant to 21 U.S.C. § 863. Accordingly, we cannot issue a binding ruling on the tariff classification of the merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) 19 C.F.R. § 177.7. Our ruling is set forth below.
FACTS
The subject merchandise consists of The LitKit, a product with 8 components (“A” through “H”) and an adhesive to stick to the product to the back of a cell phone. The components you describe in your ruling request are in the following table:
Component
Requester’s Description
A
“bottle opener”
B
“cigar cutter”
C
finger slot
D
“knob that can be spun for enjoyment”
E
“miscellaneous storage area”
F
“storage slot for a stylus”
G
“plinko board”
H
“storage area” into which the small ball from the “plinko board” can fall
The LitKit would be imported from China, with Mr. Tokes LLC, as the importer of record. Images of The LitKit as provided in your ruling request are provided below. The letters “A” through “H” correspond with the above-described components of The LitKit.
ISSUE
Whether The LitKit falls within the meaning of drug paraphernalia pursuant to 21 U.S.C. § 863.
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.” Id.
Our determination, set forth below, is based on the information above, your responses to our January 10, 2022, request for additional information, our independent research, and the application of one of 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.” Supra Posters ‘N’ Things, at 521. Accordingly, our analysis will examine the products’ primary intended use relative to the factors set forth in 21 U.S.C. § 863(e).
Primarily Intended for Use
Title 21 United States Code § 863(e) outlines eight logically relevant factors to consider in determining whether an item constitutes drug paraphernalia. As corresponds with 21 U.S.C. § 863(e)(1)-(3), no instructions, descriptive materials, or advertising currently exist concerning the item’s use. The item is not yet displayed for sale, a factor to consider under 21 U.S.C. § 863(e)(4). The product website (www.phone-toys.com) is not yet active. However, you mention that other products sold on this website are anticipated to be akin to the best-selling cell phone accessories on Amazon. See Email (Jan. 10, 2022); Amazon, https://www.amazon.com/Best-Sellers-Cell-Phones-Accessories-Accessories/zgbs/wireless/2407755011/ref=zg_bs_nav_wireless_1 (last accessed Jan. 10, 2022). However, as the website is not currently available, there is no information to consider under 21 U.S.C. § 863(e)(1) -(3).
You have not represented that Mr. Tokes LLC is a licensed distributor or dealer of tobacco products, pursuant to 21 U.S.C. § 863(e)(5). As no items in the business enterprise are for sale, there is no ratio of sales to consider under 21 U.S.C. § 863(e)(6). You also have not provided expert testimony concerning this item’s use under 21 U.S.C. § 863(e)(8).
Further, 21 U.S.C. § 863(e)(7) allows for consideration of “the existence and scope of legitimate uses of the item in the community.” You state that The LitKit is an “original product” and your “invention.” See Electronic Request for a Binding Ruling, Ruling Number N323389 (Dec. 22, 2021). A web search revealed no similar products on the market.
The “Plinko board” component of The LitKit appears to be an herb grinder, which can be used for legitimate uses such as grinding tobacco or herbs, or for illegitimate uses such as grinding marijuana buds for consumption. See, e.g. HQ H025795 (Apr. 24, 2008). The “knob that can be spun for enjoyment” appears to be a grinding nub, making the “Plinko board” functionable as a grinder. There is also a compartment at the base of the “Plinko board” that could hold ground marijuana. Marijuana grinders advertised online have cranks similar to the “knob,” as well as a compartment for storage similar to The LitKit’s compartment. See, e.g. GTVOK, “Best Crank Weed Grinder – Reviews & Buying Guide,” https://greenthevoteok.com/smoking/grinders/best-crank-weed-grinders/ (last accessed Jan. 11, 2022).
The U.S. Supreme Court has also taken note of objective characteristics of items which “have no other use besides contrived ones (such as the use of a bong as a flower vase).” Supra Village of Hoffman Estates, at 501. Here, you seem to have stated contrived uses for the “Plinko board,” “knob,” and “compartment” while these components appear to constitute a grinder with a knob and storage for ground product from its objective characteristics. Further, the “miscellaneous storage” compartment does not appear large enough for a cigar (for use with the cutter), or something typically carried with cellphone cases such as an identification or a credit card. However, the “miscellaneous storage” component appears to be able to conceal a marijuana cigarette.
It would not make sense to include a cigar cutter in this cellphone accessory that you self-categorize as a “toy.” See supra Ruling Request. In any case, the LitKit’s “cigar cutter” component does not appear to be a traditional cigar cutter. Traditional cigar cutters function similarly to a guillotine which cuts through the entire cigar, allowing the tip to be cut off of the cigar prior to smoking. See, e.g. Thompson, Cigar Cutters, https://www.thompsoncigar.com/shop/cigar-cutters/8413/ (last accessed Feb. 15, 2022); see also Budzu, Blunt Splitter, http://budzu.com/terms/b/blunt-splitter (last accessed Feb. 15, 2022). In contrast, this “cigar cutter,” as shown in the above Image 2, has a sharp blade sticking out of the middle which appears to function as a blunt splitter. See, e.g. EZ Splitz, https://ezsplitz.com/ (last accessed Feb. 15, 2022). A blunt splitter slices lengthwise through the wrapper of a cigar or cigarillo to allow it to be filled with marijuana. See Budzu, Blunt Splitter, http://budzu.com/terms/b/blunt-splitter (last accessed Feb. 15, 2022). As a cigar would already be rolled and filled with tobacco, there is no legitimate reason to split a rolled cigar. Additionally, the item’s “finger slot” looks more like it would fit a cigarette lighter than be comfortable for holding this cellphone accessory, another feature that should not be present in a “toy.”
The name of both the item (“The LitKit”) and the LLC (“Mr. Tokes LLC”) further support the conclusion that this item is primarily intended for use with controlled substances. “Lit” is a term which could refer to becoming “intoxicated” by controlled substances such as marijuana. See Merriam-Webster, https://www.merriam-webster.com/words-at-play/lit-meaning-origin (last accessed Jan. 11, 2022). “Toke” is commonly used as slang for smoking marijuana. See Merriam-Webster, https://www.merriam-webster.com/dictionary/toke (last accessed Jan. 11, 2022).
Taken together, the above factors demonstrate that The LitKit is primarily intended to be used to prepare a controlled substance for introduction into the human body. 21 U.S.C. § 863(d).
HOLDING
The subject merchandise constitutes “drug paraphernalia” pursuant to the statutory definition set forth in 21 U.S.C. § 863 and is therefore prohibited from importation into the United States.
Sincerely,
W. Richmond Beevers
Supervisory Attorney-Advisor
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection