CLA-2-85:OT:RR:NC:N2:212
Richard O'Neill
Neville Peterson LLP
701 Fifth Ave., Ste. 4200-2159
Seattle, WA 98104
RE: The tariff classification of cannabis vaporizers from China
Dear Mr. O'Neill:
In your letter dated October 2, 2023, you requested a tariff classification ruling on behalf of your client,
282318 Ontario Limited.
As an initial matter, we note that we will provide a tariff classification opinion on this issue, however we
point out the stipulations and limitations below to our review.
Based on the descriptions and supporting evidence provided with the ruling request, these products meet the
definition of marijuana-related “drug paraphernalia” under 21 USC § 863(d), the importation of which is
prohibited under 21 USC § 863(a)(3). However, in Eteros Technologies USA, Inc. v. United States, 592 F.
Supp. 3rd 1313 (Ct. Int’l Trade 2022), and Keirton USA Inc. v. United States, 600 F. Supp. 3rd 1270 (Ct.
Int’l Trade 2022), the Court of International Trade held that importers importing marijuana-related drug
paraphernalia through a port in the State of Washington are “authorized” by the State of Washington to
possess such items, within the meaning of the exemption in 21 USC § 863(f)(1), and are therefore exempt
from this prohibition.
You state that the products will be imported through the Port of Seattle, WA. The holdings in Eteros and
Keirton apply only to importations through a port in the State of Washington. Accordingly, we recommend
that admissibility be confirmed prior to importing through any port in California, or any other port in the
United States, as the products could still be considered prohibited merchandise and potentially seized if
imported through a port of entry.
If you wish to obtain an admissibility ruling for a future importation through a different port of entry, you
may write to the following CBP office: Attn: Cargo Security, Carriers, and Restricted Merchandise Branch
Office of Trade Regulations and Rulings U.S. Customs and Border Protection 90 K Street NE Washington,
DC 20229.
There are five items at issue with this request, which are all described as personal vaporizer devices for use
with non-tobacco and non-nicotine substances. The first is identified as the Tronian Omegatron portable
electronic vaporizer device. The subject device consists of a battery powered base unit, within which is
housed the necessary electrical components for the device, including the battery, PCBA, and user interface. A
removeable, coil-style atomizer heating element is attached to the top of the base unit and a glass cup is
added to the top to complete the device. We note that no substance is meant to be imported with the device.
In use, wax concentrate is loaded into the chamber and heated to create a vapor. This vapor gathers within the
removeable glass cup, which can then be removed for the user to inhale the gathered substance. You state
that the cup can be removed and replaced with a threaded oil cartridge, allowing for the user to vaporize and
inhale an oil solution as opposed to wax. However, this is not imported with the device and would be
purchased separately by the end-user. At importation, the device is packaged with all of the described
components as well as a USB-C charging cable and stainless-steel packing tool.
The second item at issue is identified as the Utillian 5 Wax Pen and is described as a compact electric
concentrate vaporizer. The subject device consists of a cylindrical battery housing and removeable
mouthpiece. Within the battery housing are the electrical components that drive and control the device as
well as the atomizer unit, which vaporizes the substance. The outside of the housing has an LED indicator
and power button, while the mouthpiece incorporates vented airflow controls.
In use, the concentrate substance, which is separately purchased and not imported with the device, is loaded
into the coil at the end of the battery housing. The mouthpiece is then added on top of the coil and, when
powered on, the device heats the substance to create vapor. This vapor is then inhaled through the
mouthpiece. You state that the subject vaporizer pen is imported with replacement heating coils, a steel
loading tool, spare o-ring seals, and a USB charging cable.
The third item at issue is identified as the Utillian 8 portable electronic dab rig. The device consists of a base
unit, within which are the necessary electronic components and battery, and a detachable glass
mouthpiece/water reservoir. Upon the base unit is a ceramic cup that incorporates the embedded heating
elements on its walls. The base unit further incorporates an LED indicator, status interface buttons, and a
charging port.
In use, the substance, which is not at issue with this request, is packed into the ceramic cup atomizer unit,
covered with a carb cap, and heated to produce a vapor. This vapor is then drawn through the water-filled
mouthpiece and inhaled by the user. You state that the device is packaged for importation with a USB-C
charging cable, various spare parts, cleaning supplies, and a carrying case.
The fourth item is identified as the Zeus Arc GT3 dry-herb vaporizer system. The device consists of a
pocket-sized battery housing, which also contains the heating chamber, a removeable mouthpiece, and a
reusable capsule or “ArcPod.” The ArcPod is designed to hold the dry-herb material meant to be vaporized.
We note that the material will not be imported with the device.
In use, the herb material is ground and packed into the ArcPod using a provided grinding and filling tool,
known as the Xtruder. The ArcPod is then placed within the heating chamber and the mouthpiece is added.
The material is then heated and a vapor produced, which is inhaled by the user. The subject device is
packaged together at importation with the Xtruder, up to 15 ArcPods, cleaning/maintenance tools, and a
USB-C charging cable.
The final item is identified as the Zeus Ion multi-function vaporizer. The device consists of a hand-held
battery unit, within which is the primary heating chamber for the device. This heating chamber does not
contain a heating element, but only allows for an electrical connection to power an external cartridge and
element. On the outside of the device there is a power button, LED interface, and charging port. The device
also comes with two adapters to allow for different cartridges to be attached. We note that no substance or
material is imported with the device.
In use, a pre-filled oil or wax cartridge is inserted into the heating chamber compartment, which makes an
electrical connection to the heating element with the cartridge. The Ion then provides power to the cartridge,
allowing the substance to be vaporized and inhaled through a mouthpiece, which is also not provided with the
device.
In your request, you suggest that the correct classification for all 5 devices is subheading 8543.40,
Harmonized Tariff Schedule of the United States (HTSUS). For the first four items detailed above, we agree.
However, for the Zeus Ion device, we disagree.
The Explanatory Notes (ENs) to the HTSUS provide the official interpretation of the Harmonized System at
the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the
scope of each heading and are generally indicative of the proper interpretation of the headings. The ENs to
85.43 offer the below explanation of the personal vaporizer devices that are classified within.
These are electrically operated devices that operate, without the use of combustion, to produce an
aerosol for direct inhalation by the user through a mouthpiece. They incorporate specific electric or
electronic components, such as a heating element (e.g. atomizer), or an ultrasonic vibrator, etc., that
allow the device to generate aerosol from a liquid, solution, gel, tobacco plug, or other product
desired to be used in the device.
The Zeus Ion device, per the information provided, does not contain the heating element that vaporizes the
substance, nor does it provide the ability to inhale the vapor. Further, as presented, the device is more akin to
a battery device than a fully functioning vaporizer unit. In order for an item to be classified under heading
8543, HTSUS, it must not be classified, by form or function, in any other heading. As batteries are more
specifically provided for elsewhere, classification in the proposed heading is not appropriate.
The applicable subheading for the Tronian Omegatron, Utillian 5, Utillian 8, and the Zeus Arc GT3, will be
8543.40.0000, HTSUS, which provides for “Electrical machines and apparatus, having individual functions,
not specified or included elsewhere in this chapter; parts thereof: electronic cigarettes and similar personal
electric vaporizing devices: other.” The general rate of duty will be 2.6% ad valorem.
The applicable subheading for the Zeus Ion will be 8507.60.0020, HTSUS, which provides for "Electric
storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof:
Lithium-ion batteries: Other." The general rate of duty will be 3.4% ad valorem.
Effective March 4, 2025, pursuant to U.S. Note 2(u) to Subchapter III, Chapter 99, all products of China and
Hong Kong as provided by heading 9903.01.24, HTSUS, other than products classifiable under headings
9903.01.21, 9903.01.22, and 9903.01.23, HTSUS, will be subject to an additional 20 percent ad valorem rate
of duty. At the time of entry, you must report the applicable Chapter 99 heading, i.e. 9903.01.24, in addition
to subheadings 8507.60.0020 and 8543.40.0000, HTSUS, listed above.
Effective April 5, 2025, Executive Orders implemented “Reciprocal Tariffs.” All imported merchandise
must be reported with either the Chapter 99 provision under which the reciprocal tariff applies or one of the
Chapter 99 provisions covering exceptions to the reciprocal tariffs. At this time products from all countries
will be subject to an additional 10 percent ad valorem rate of duty. At the time of entry, you must report the
Chapter 99 heading applicable to your product classification, i.e. 9903.01.25, in addition to subheadings
8507.60.0020 and 8543.40.0000, HTSUS, listed above.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under
subheading 8543.40.0000, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad
valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.02,
in addition to subheading 8543.40.0000, HTSUS, listed above.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under
subheading 8507.60.0020, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad
valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15,
in addition to subheading 8507.60.0020, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status
of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background
information regarding the Section 301 trade remedy, you may refer to the relevant parts of the USTR and
CBP websites, which are available at:
https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions
https://www.cbp.gov/trade/remedies/301-certain-products-china
The tariffs and additional duties cited above are current as of this ruling’s issuance. Duty rates are provided
for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying
duty rates are provided at https://hts.usitc.gov/.
The holding set forth above applies only to the specific factual situation and merchandise description as
identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations
(CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the
information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and
complete in every material respect. In the event that the facts are modified in any way, or if the goods do not
conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and
Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2.
Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic
verification by CBP.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection
Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents
filed at the time this merchandise is imported. If you have any questions regarding the ruling, please contact
National Import Specialist Luke LePage at [email protected].
Sincerely,
James Forkan
Acting Director
National Commodity Specialist Division