OT:RR:BSTC:CCR H327540 HKC
Mr. Peter A. Quinter
Gunster
Brickell World Plaza
600 Brickell Avenue, Suite 3500
Miami, FL 33131
RE: Admissibility and tariff classification of hemp cones, tubes, and wraps; Drug paraphernalia; 21 U.S.C. 863
Dear Mr. Quinter,
This is in response to your ruling request, dated September 27, 2022, and subsequent correspondence regarding the hemp cones, tubes, and wraps that your client intends to import into the United States.[1] You requested prospective rulings as to (1) whether the hemp cones, tubes, and wraps would be considered "drug paraphernalia" under 21 U.S.C. 863, and (2) the proper tariff classification of the imported hemp cones, tubes, and wraps. Your question as to the proper classification of the subject merchandise has been referred to our Food, Textiles, and Marking Branch, who will respond under separate cover.
FACTS:
You describe the merchandise at issue as cones and wraps made of "100% organic, pesticide-free, non-GMO hemp." Your client proposes to import these cones and wraps through any port of entry in the United States, to include ports of entry located in the states of Washington, Oregon, California, Arizona, New Mexico, Texas, and possibly Georgia, New York, New Jersey, Illinois, and Colorado.[2] During subsequent correspondence, you cited to the U.S. Court of International Trade's opinions in Eteros Technologies USA. Inc. v. United States[3] and Keirton USA Inc. v. United States[4] as relevant to your ruling request.
Below are images of your client's cones and hemp wrap packaging included in your ruling request and subsequent correspondence[5]:
ISSUES:
Whether the hemp cones, tubes, and wraps under consideration constitute drug paraphernalia as contemplated in 21 U.S.C. 863.
LAW AND ANALYSIS:
As concerns what constitutes "drug paraphernalia" for purposes of 21 U.S.C. 863, the statute provides, in part, as follows:
a) 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.
(e) ...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;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of them 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 ratioof 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.
(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
2) 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.[6]
In accordance with the provisions of 21 U.S.C. 863(d), CBP's primary emphasis is whether the subject merchandise is "primarily intended for use" with controlled substances (marijuana).
The U.S. Supreme Court examined the definition of "drug paraphernalia" pursuant to 21 U.S.C. 863 in Posters 'N' Things v. United States, 511 U.S. 513 (1994), where it specifically
considered the phrase "primarily intended for use" as set forth in 21 U.S.C. 863(d).[7] The Court
concluded that "primarily intended for use" is to be understood objectively and refers generally to an item's likely use.[8] 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."[9] Further, the Court held that Section 863 "states 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."[10] 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 are for use with illegal drugs.[11]
Recently, the Court of International Trade ("CIT") in Eteros Technologies USA. Inc. v. United States[12] examined the 21 U.S.C. 863(f)(1) exception. The CIT discussed cannabis drug paraphernalia being directly imported into a state that has legalized cannabis use to a consignee in the same state. The court determined "... authorization' by one legislative body - be it local, state, or federal - to engage in one of the enumerated activities - be it manufacture, possession, or distribution of drug paraphernalia - would be sufficient to trigger the (f)(1) exemption's applicability."[13] Thus, drug paraphernalia that is destined for states that have legalized cannabis may be exempted under 21 U.S.C. 863(f)(1).
Cannabis containing tetrahydrocannabinols ("THC") is listed as a Schedule I controlled substance, for which importation is prohibited, with the exception of hemp. [14] Hemp is defined as:
"...the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis."[15]
In turning to the cones and wraps at issue, you argue that the logic of ruling HQ H115995[16], in which CBP held merchandise consisting of cigar wraps not to be drug paraphernalia because they were primarily intended for use with tobacco products, should apply to petitioner's ruling request. You also contend that the cones and wraps are designed and intended for use in smoking legal tobacco-free herbal blends and therefore should not be considered drug paraphernalia. You state that herbal blend hemp wraps are common and provided photos of such wraps and their associated herbal blends from a Google search you conducted in your ruling request. You also provided an excerpt from a third-party website describing the history of herbal wraps. You cited this market for herbal blends and wraps as evidence that 21 U.S.C. 863(e) factor 7 (" the existence and scope of legitimate uses of the item in the community") weighs against a finding that your client's merchandise is drug paraphernalia.
Finally, you assert that "[o]f course, the wraps could be used for drugs, but that is not their primary or intended use just like a dollar bill or straw were [sic] not primarily used or intended to be used by persons who snort cocaine."
As a threshold matter, we note that the merchandise at issue in HQ H115995 differs significantly from your client's merchandise. The tobacco cigar wraps at issue in HQ H115995 were marketed as for use with tobacco products, contained the legally required health warnings for tobacco products, and imported by a licensed tobacco dealer with an extensive history in tobacco sales. On the other hand, your client's merchandise is explicitly labeled "No Tobacco used in this product. Do Not Use with any tobacco or any illegal substance. Used for legal herbal smoking products only." See below:
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."[17] Since the hemp cones and wraps at issue are designed for use with tobacco-free herbal blends and not with controlled substances, they do not meet the "designed for use" standard.
As you state in your ruling request, "[o]f course, the wraps could be used for drugs, but that is not their primary or intended use just like a dollar bill or straw were [sic] not primarily used or intended to be used by persons who snort cocaine." The hemp cones and 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."[18] As the hemp cones and 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 hemp cones, tubes, and 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.
The existence of a significant legitimate market for herbal blends and similar hemp wraps increases the likelihood that purchasers would use the hemp cones and wraps with herbal blend. The labeling on the hemp cones and wraps stating "No Tobacco used in this product. Do Not Use with any tobacco or any illegal substances" supports your client's assertion that the hemp cones and wraps will only be used with legal herbal blends. The packaging of the cones also states "0.0% THC". Your client submitted accredited lab testing results showing the subject merchandise contains a "ND", or "not detectable" level of delta-9 tetrahydrocannabinol (THC).[19]
The website of the manufacturer, Crop Kingz, provides some information relevant to the 21 U.S.C. 863(e) factors ((3) "national and local advertising concerning its use") and "((5) whether the owner, or anyone in control of them is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products"). The Crop Kingz website does not contain any references to cannabis use or sell merchandise related to cannabis. [20] The Crop Kingz social media sites featured on their cones packaging also did not reveal any references to use with cannabis. The Crop Kingz website contains the same "Used for legal herbal smoking products only" disclaimer found on the packaging of its cones and wraps:
Furthermore, the Crop Kingz website contained the following statement[21] indicating the products are intended for use with "federally legal" smokeable hemp:
In light of the above, the evidence weighs in favor of a finding that the hemp wraps and cones your client intents to import are not primarily intended for use in ingesting cannabis or marijuana by the customers who purchase them. Rather the evidence suggests the Crop Kingz hemp wraps and cones are primarily intended for use with legal herbal blends. Therefore, the hemp cones and wraps do not constitute drug paraphernalia for the purposes of 21 U.S.C. 863(d). Because your client's merchandise contains a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent, it is not a controlled substance under 21 U.S.C. 812(c).
Petitioner contends that the cones and wraps should be properly classified under HTSUS 5302.10.0000 (True hemp, raw or retted) and/or 5302.90.0000 (True hemp: Other). CBP will respond to petitioner's request for classification under separate cover.
HOLDING:
The hemp cones and wraps in question do not constitute drug paraphernalia for the purposes of 21 U.S.C. 863(d).
Sincerely,
W. Richmond Beevers
Chief, Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection
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[1] Capin Vyborny Ruling Request Final(15693742.1).pdf, dated Sep. 27, 2022.
[2] Email, RE: Capin Vyborny September 2022 Ruling Request to CBP - Request for Additional Information, dated June 15, 2023.
[3]Eteros Technologies USA. Inc. v. United States, No. 21-00287 (Ct. Int'l Trade 2022).
[4] Keirton USA Inc. v. United States, No. 21-00452 (Ct. Int'l Trade 2022).
[5] Capin Vyborny Ruling Request Final(15693742.1).pdf, dated Sep. 27, 2022; Email, RE: Capin Vyborny September 2022 Ruling Request to CBP - Request for Additional Information, dated May 23, 2023.
[6] 21 U.S.C. 863 (emphasis added).
[7] 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).
[8] Id at 521.
[9] Id. at 521 n.11.
[10] Id.
[11] In Posters 'N' Things, the Court referenced the utility of applying the factors set forth in 863(e) for determining
whether a given item is "primarily intended for use" with illegal drugs. For example, the Court noted, "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." Posters 'N' Things, 511 U.S. at 521 n.11.
[12] In Eteros, Plaintiff attempted to enter cannabis related merchandise, into the Port of Blaine, Washington. CBP determined the subject merchandise to qualify as drug paraphrenia under the 863(e) factors and seized the merchandise pursuant to 19 U.S.C. 1595a(c). Washington State legalized cannabis in 2012. Ultimately, the court found the language of the statute allowed the drug paraphernalia to be imported under the 863(f) exception. Eteros Technologies USA. Inc. v. United States, No. 21-00287 (Ct. Int'l Trade 2022).
[13] Eteros Techs. USA, Inc. v. United States, Slip Op. 22-111, 11-12 (Ct. Int'l Trade 2022).
[14] 21 U.S.C. 812(c).
[15] 7 U.S.C. 1639o.
[16] HQ H115995, dated Oct. 20, 2010.
[17] Id.
[18] Id. at 519-20. The Court determined that the omission was significant "in light of the fact that the parallel list contained in the Drug Enforcement Administration's Model Drug Paraphernalia Act, on which [the federal statute] was based, include[d] among the relevant factors 'statements by an owner ... concerning [the object's] use' and 'direct or circumstantial evidence of the intent of an owner ... to deliver it to persons whom he knows, or should reasonably know intend to use the object to facilitate a violation of [the] Act.'"
[19] Certificate of Analysis, dated Feb. 13, 2024.
[20] https://www.cropkingz.com/, last accessed Feb. 20, 2024.
[21] Id.
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1300 Pennsylvania Avenue, NW
Washington, DC 20229