ENF 4-02 OT:RR:BSTC:IPR H064259 SEK
J. Kevin Horgan
DeKieffer & Horgan
Suite 800
729 Fifteenth Street, NW
Washington, DC 20005
RE: Admissibility and tariff classification of certain “cigar wraps”; Drug paraphernalia; 21 U.S.C. § 863; Blunts; Cigar Wraps; Marijuana or Cannabis
Dear Mr. Horgan,
This is in response to your request for a classification and admissibility ruling, dated May 22, 2009, made to the National Commodity Specialist Division, New York, regarding the cigar wraps that your client, National Tobacco Company LP (NTC) intends to import from the Dominican Republic. Your request was forwarded to this office to determine whether the articles constitute drug paraphernalia as set forth in 21 U.S.C. § 863. Samples were provided for our examination.
FACTS:
You describe the articles at issue as “tobacco cigar wraps” that are produced in the Dominican Republic. You contend that the cigar wraps are intended to be used with cigar blend pipe tobacco filler, both of which NTC markets and sells through tobacco wholesalers and retailers as a roll-your-own (RYO) tobacco product. You contend that “[t]his product line is competitive with manufactured cigars in quality and price, and provides the cigar consumer with the opportunity to control and shape the cigar smoking experience. This offering responds to growing demand in that segment, as manufactured cigar and cigarette manufacturers try to increase their margins through regular price hikes and federal and state excise taxes increase on many tobacco products.” You note that NTC makes a “new ZIG-ZAG Cigar Blend Pipe Tobacco” marketed for use as filler for wraps like those at issue.
The cigar wrappers consist of approximately [ ] % tobacco and [ ] % binding agents. The cigar wraps are assembled around plastic tubes using intermediate cellophane sheets to form pre-rolled cigar shells. The pre-rolled cigar shells are then packaged for sale in re-sealable foil pouches with two pre-rolled cigar shells on two form casings in each pouch. You state that the cigar wraps are used as follows:
The cigar wrap remains wrapped around the tube until a consumer decides to make a cigar. The consumer then withdraws a wrap from the re-sealable pouch and peels all of the tobacco wrap, or a section of the tobacco wrap away from the plastic tube and the cellophane sheet, which are both discarded. The consumer then places the desired amount and mixture of loose pipe cigarette 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, answering all requirements of a consumer as to the flavor, blend, and size of a cigar, at a cost significantly below the cost of a manufactured cigar.
Samples of the merchandise were received in this office and consisted of Zig Zag cigar wraps in the flavors “Cherry Rush,” “Melon Burst,” and “Purple Thunder.”
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 objective 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 article at issue, we conclude, the cigar wraps at issue are not “primarily intended or 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. The cigar wraps qualify as mixed-use items that 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.”
Since the 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 of the item supports NTC’s assertion the cigar wraps are intended to be used with Zig Zag Cigar Blend Pipe Tobacco, which has packaging that corresponds to the cigar wraps and varies in color according to the various flavors. The corresponding packaging creates a strong association between the two items that indicates to the consumer that the cigar wraps and the pipe tobacco are meant to be used together. Furthermore, the back of the cigar wrap packaging features a large image of a package of Zig Zag Cigar Blend Pipe tobacco in the center with the words “TRY ZIG-ZAG® CIGAR BLEND TOBACCO” beneath the image. The two products are also displayed in close proximity to each other in stores. The association between the similar packaging of the two products increases the likelihood that a purchaser of the Zig Zag Cigar Wrap is likely using the wraps with Zig Zag Cigar Blend Pipe Tobacco, and therefore the cigar wraps are primarily intended for use with tobacco. The packaging also contains 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. In addition, 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 design of the package in addition to the display of the products indicates that the cigar wraps are not primarily intended for use with controlled substances.
Finally, the record provides ample evidence that NTC is engaged in the legitimate tobacco products business, and the products at issue are advertised as tobacco products, as you state in your May 22, 2009 submission:
NTC and its predecessor companies have been in the tobacco business for more than 100 years. NTC is a government licensed importer, manufacturer and distributor of tobacco products. All of NTC’s tobacco products, including cigar wraps, are sold through licensed state tobacco distributors and licensed tobacco retailers. NTC’s cigar wraps are advertised in traditional 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 our prior ruling in HQ H047601. 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 tobacco wraps and leaf 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 Suzanne Kane of my staff at (202) 325-0119.
Sincerely,
Charles R. Steuart, Chief
Intellectual Property & Restricted Merchandise Branch