Request for Prospective Ruling on the Admissibility of Solo Industries, Inc., "Solopipe"®; 21 U.S.C. § 863

HQ H050727 May 1, 2009 ENF-4-02-OT:RR:BSTC:IPR H050727 AvH CATEGORY: RESTRICTED MERCHANDISE Elon A. Pollack Stein Shostak Shostak Pollack & O’Hara, LLP 865 South Figueroa Street Suite 1388 Long Beach, CA 90017 RE: Request for Prospective Ruling on the Admissibility of Solo Industries, Inc., “Solopipe”®; 21 U.S.C. § 863 Dear Elon A. Pollack : This is in response to your letter dated January 22, 2009, in which you requested a prospective ruling on behalf of your client, Solo Industries, Inc. (hereinafter “Solo”), based on allegedly “new facts” that were not previously considered by Customs in its denial of Protest 2704-08-101223 by Rocket Entertainment LLC. Based on these new facts you assert that Solo has “totally alleviated any concern with respect to 21 U.S.C. § 863(e)(5) . . . and 21 U.S.C. § 863(e)(7)” and request “that Customs should now hold that the reconfigured Solopipes® are not illegal drug paraphernalia and may be freely imported by Solo under the conditions stated herein.” See Solo Industries, Inc., Request for Prospective Ruling, January 22, 2009, 8-9 (hereinafter “Request”). FACTS: Counsel for Solo enclosed copies of the Continuation Sheet from Protest No. 2704-08-101223, a supplemental letter from Solo Industries, Inc. to Attorney-Advisor Andrew Langreich dated August 27, 2008, and a copy of CBP’s previous decision in HQ030458, and incorporates them by reference in their Request. Counsel asserts that the “vast majority of the facts in them have not changed.” See Request at 3. Accordingly, we will dispense with a full recitation of the facts and reproduce only those most pertinent to Solo’s Request for Preliminary Ruling. A brief description of the merchandise at issue is as follows: “Solopipe® is a revolutionary self-igniting smoking apparatus that combines a refillable, adjustable butane lighter with a high quality tobacco smoking pipe.” See www.solopipe.com. Images of the merchandise from the official Solopipe website are provided, below:



The word mark “Solopipe” is registered with the U.S. Patent and Trademark Office for “cigarette lighters not for land vehicles” in International Class of Goods 034.  A patent application has also been filed for the Solopipe® design. Counsel contends that the following facts have changed since CBP’s previous decision in HQ030458: Screens: Having evaluated the inclusion of the screens and the fact that they are not mandatory for the use of the Solopipe® as a traditional tobacco pipe, Solo agrees that all future importations of Solopipes® will not include screens and that it will not separately import or sell screens in the future; Importation and Distribution: A separate entity, Solo Industries, Inc., was formed as the exclusive importer and distributor of Solopipes® and no other product. If Solo ever intends to import or distribute any other product which might conceivably be used as drug paraphernalia, it agrees to notify CBP in advance; and Warranty: If Solo receives a favorable ruling, they will make changes to their website and instructions included with Solopipes® to include strong affirmative statements that they are not to be used for any purpose other than for smoking tobacco and that the warranty will be voided by any indication that a Solopipe® has been used for any other purpose. See Request at 3 – 5. According to these additional facts, counsel contends that: “Solo has totally alleviated any concern with respect to 21 U.S.C. §863(e)(5) by establishing a new entity to act as the exclusive importer/distributor” and has “attempted to alleviate any concern with respect to 21 U.S.C. §863(e)(7) by removing the screens, manufacturing the product from metals which are not suitable for use in marijuana pipes, and warning against abuse of the product.” See id. at 8. We will analyze each of the new facts submitted by counsel in reference to our previous ruling, HQ030458, dated October 2, 2008. LAW AND ANALYSIS As you are aware, the relevant statute, 21 U.S.C. § 863, provides: 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: [A]ny 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; * * * (7) chamber pipes [.] (emphasis added). In determining whether an item constitutes drug paraphernalia, 21 U.S.C. § 863(e) provides that, 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 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. 21 U.S.C. § 863(f)(2) provides that section 863 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.” DISCUSSION Screens According to counsel, Solo has “attempted to alleviate any concern with respect to 21 U.S.C. § 863(e)(7)” by removing the screens from the Solopipe®. See Request at 8. Counsel states that: “[H]aving evaluated the inclusion of screens and the fact that they are not mandatory for the use of the Solopipes® as a traditional tobacco pipe, Solo agrees that all future importations of Solopipes will not include screens and that it will not separately import or sell screens in the future.” Id. at 3 - 4. In regards to the exclusion of the screens, counsel concludes the following: Solo has attempted to physically reconfigure the Solopipes® (i.e. make them without screens) so that they will not be used for smoking anything other than marijuana. In this regard, any past comments on the internet or elsewhere con- cerning the use of the Solopipes® for smoking marijuana must be given much less weight than previously because there are no comments on how the Solopipes® will be used in their new reconfigured design. Id. at 8. Counsel’s argument, above, contains three main contentions. First, that the Solopipe® has been “physically reconfigure[d],” second, that because of the reconfiguration “any past comments on the internet or elsewhere . . . must be given much less weight . . .” and third, that the Solopipe® “will not be used for smoking anything other than tobacco. ” We will evaluate each of these contentions, below. 1. Physical Reconfiguration Counsel contends that the Solopipe® has been “reconfigure[d].” See Request at 8, 9. Solo has agreed not to include screens with their product in response to HQ H030458, which cited the testimony of Customs Agent Mangione in United States v. Search of Music City Marketing, Inc., 212 F.3d 920 (6th Cir. 2000), stating that screens in marijuana pipes were used to prevent seeds and stems from being sucked into the smoker’s throat, but were not used in traditional tobacco pipes. Id. at 3. In addition, Solo promises that “all future importations of Solopipes will not include screens and that it will not separately import or sell screens in the future.” Id. at 3 - 4. When shipped to a purchaser, the Solopipe® currently comes equipped with three extra screens in addition to the screen already in place in the Solopipe®. Below is an excerpt from the Australian Solopipe® website:
Extra Screens: Your SoloPipe tool kit comes with 3 extra screens. This way, if you desire to replace the screen in the bottom of your tobacco bowl, you can simply pop out the old screen and insert a new one. Your screen will not have to be replaced often, but we're happy to provide you with the extra screens should you desire to. A reputable United States technology review site, www.The-Gadgeteer.com, provided the following photographs and descriptions of the Solopipe®:

The cleaning kit consisting of brush, three bowl The bowl screen is removable so you can clean screens and Solostick the tobacco resin inside the bowl The photographs and descriptions, above, reveal that the screens included with the Solopipe® are subject to interchangeability and replacement by the user. They can be easily removed from the Solopipe® for cleaning and are expected to be replaced with a new screen after a certain amount of use. Although Solopipe® claims it will not sell or separately import screens in the future, an independent search of the internet concluded that the same type of screens currently provided with the Solopipe® are widely available for sale at a nominal cost, and are sold in a variety of sizes, materials and quantities. Since the Solopipe® screens are easily removable and are expected to be replaced by the user at will over the lifetime of the Solopipe®, we do not consider their exclusion to be a “physical reconfiguration” of the product. The Solopipe® is specifically designed to be used with screens and remains fully compatible with such use even if the screens are removed prior to importation. Therefore, we find that product at issue in this Request is not “reconfigured” but remains the same product that was at issue in HQ030458. We also draw particular attention to the plain language of 21 U.S.C. § 863, which includes in the definition of “drug paraphernalia” items primarily intended or designed for use in ingesting illicit substances, such as metal pipes “with or without screens.” See 21 U.S.C. § 863(d)(1). According to the general rule of statutory construction, if the words chosen by the legislature are clear and unambiguous within the context of the statute in question, they are to be given their plain and ordinary meanings. We conclude, therefore, that Congress specifically intended to include pipes without screens that are “primarily intended or designed for in ingesting illicit substances” in their definition of drug paraphernalia. Accoringly, we do not change our opinion in HQ030458 with respect to whether the Solopipe® constitutes per se drug paraphernalia. See HQ030458 at 7, citing Posters ‘N’ Things v. United States, 511 U.S. 513, 516 (U.S. 1994). 2. Comments on the Internet Counsel asserts that “any past comments on the internet or elsewhere concerning the use of the Solopipes® for smoking marijuana must be given much less weight than previously because there are no comments on how the Solopipes® will be used in their new reconfigured design.” See Request at 8. Since we do not agree with counsel that the removal of the screens from the Solopipe® is a “physical reconfiguration” of the product, we find that comments on the internet or elsewhere concerning the existence and scope of legitimate uses of the item in the community shall be given as much weight as previously afforded in HQ030458. 3. “Designed for Use” and “Primarily Intended for Use” Counsel asserts that because the Solopipe® no longer contains screens they “will not be used for smoking anything other than tobacco.” As discussed in HQ030458, 21 U.S.C. § 863 identifies two categories of drug paraphernalia: items “designed for use” with controlled substances and items “primarily intended ... for use” with such 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 (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.” Id. at 518. The “primarily intended ... for use” standard refers generally to an item's likely use rather than to the defendant's state of mind. Posters ‘N’ Things v. United States, 511 U.S. 513, 519 (U.S. 1994). 21 U.S.C. § 863(e) lists eight objective factors that may be considered “in addition to all other logically relevant factors” in “determining whether an item constitutes drug paraphernalia.” These factors generally focus on the actual use of the item in the community. Id. at 520. Based on the Court’s guidance in Posters ‘N’ Things we confine our analysis to the objective factors set out in 863(e) to determine whether the Solopipe® is “designed for use” or “primarily intended ... for use” with illicit substances. The design of the Solopipe® contains many characteristics found by the court in United States v. Search of Music City Mktg., Inc., 212 F.3d 920, 922 (6th Cir. 2000) and cited in HQ030458 to be those of drug paraphernalia: the Solopipe® is made out of metal, is pocket-sized and easily concealable, has a very small bowl compared to traditional tobacco smoking pipes and the retractable cover for the bowl can also be used to conceal the contents of the bowl. Despite the removal of the screens from the Solopipe® these facts remain the same. Accordingly, we do not alter our determination in HQ030458 that the Solopipe® is “designed for use” with illicit substances. We now examine whether the Solopipe®  is “primarily intended” for use with illicit substances.   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 FN 11. Based on this analysis, the main question, therefore, is not whether the Solopipe® is designed to function other than with illicit substances, but whether it is primarily intended for use with illicit substances. In addition to the findings in HQ030458 concerning the existence and scope of legitimate use of the Solopipe® in the community, our independent search of the internet revealed the following: An internet search for the word “Solopipe” along with tobacco related words compared to a search for “Solopipe” along with marijuana related words revealed that the Solopipe® is more closely associated with illicit substances than with tobacco smoking in the virtual community. Counsel refers to a website, www.smokingmetal.com/uk, to support the contention that metal pipes are rare but not unheard of for smoking tobacco. This “Online Guide to Metal Tobacco Pipes” features an “A-Z index and photo index for identifying and cataloguing metal pipes compiled by metal tobacco pipe fanatic and collector Tony Pringle with help from other pipe smokers, collectors and fans from around the world.” The site lists a total of 206 pipe styles and brands, as well as 66 numbered pipe styles labeled “unknown.” As of April 8, 2009, the Solopipe® was not included among the 206 listed or 66 pictured metal pipes. See http://www.smokingmetal.co.uk/a2z_index.php. Another popular search engine for tobacco smoking topics, Pipedia.org, (a “Wikipedia for Pipes”) holds an “extensive repository of information on tobacco pipes and their makers.” It does not contain any reference to “Solopipe.” http://pipedia.org/index.php?title=Main_Page. A California medical marijuana site, The Balboa Caregivers,’ which gives “friendly and affordable access to medical cannabis for patients and their primary caregivers who are legally qualified under California Health and Safety Code 11362.5 (Proposition 215) and SB 420,” lists their most recent news update as: “We now stock the Solopipe,” and provides a link to the Solopipe website. See http://www.balboacaregivers.com/index.html A search of the term Solopipe® produced many results lauding the device for its use as an implement for ingesting marijuana, and remarking on its well-know celebrity status. See, i.e. http://www.uncrate.com/men/culture/smoking/solopipe: “Stoners have long been known for their ingenuity. So, when one especially clever dude got sick of always looking for his lighter, he invented the Solopipe ($80). The tobacco smoking device combines a butane lighter with a high-end stainless steel pipe. Already showing up in the hands of green celebs, the Solopipe features a sliding bowl cover, refillable gas valve, and adjustable flame control.” (emphasis contained in original). Adding to the popularity of the Solopipe® as an implement used to smoke marijuana, the hit Showtime series “Weeds,” starring Mary-Louise Parker, featured a Solopipe® in Season 4 Episode 8. “Weeds Wiki,” the Official Fan Site for the show, contains numerous discussions about the pipe used by the character Silas, and concludes that it is a Solopipe®. See, i.e., http://weedswiki.sho.com/thread/2367611/Silas'++Bowl+from+last+season.......?t=anon. Other internet forums discussing the item featured in Season 4 Episode 8 also conclude that Silas’ pipe was a Solopipe® and discuss how to obtain one. An image from that episode is reproduced, below:
See, i.e., “Solopipe Product Placement on Showtimes Weeds,” available at: www.youtube.com/watch?v=aQ72gRnOJbU. A Yahoo! image search of the words “Solopipe” and “Weeds,” provides only one hit:
Although there is some evidence provided by counsel in his initial Request for a Preliminary Ruling that there is a legitimate use of the product in the community (21 U.S.C. § 863(e)(7)), the evidence of legitimate use is contradicted by numerous references to the use of the Solopipe® as an implement for ingesting marijuana. In this regard, we are persuaded by the rationale of the Supreme Court in Posters 'N' Things, supra, as quoted in United States v. Marshall, 332 F.3d 254, 260 (4th Cir. Md. 2003), that: the Court noted that the “objective” nature of the definition of “primarily intended” reached “beyond the category of items that are likely to be used with drugs by virtue of their objective features,” [Posters 'N' Things,] at 521 n.11, and included, under certain circumstances, mixed-use items. . . “Thus, 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.” According to this analysis, we conclude that the Solopipe® can be used to smoke tobacco, but is primarily associated with, virtually (i.e., on the internet) displayed, purchased and likely to be used as paraphernalia to ingest marijuana. Short of actually witnessing the article in use, we conclude that these references suffice to establish the primary use of the Solopipe® as an implement to ingest marijuana. We hold that excluding the screens from the Solopipe® does not “alleviate any concern with respect to 21 U.S.C. 863(e)(7)” and does not change our determination in HQ030458 that the primary use of the Solopipe® is for ingesting marijuana. Importation and Distribution In response to our ruling in HQ030458, a separate entity, Solo Industries, Inc., was formed as the exclusive importer and distributor of the Solopipe® and no other product. Counsel contends that the formation of Solo has “totally alleviated any concern with respect to 21 U.S.C. § 863(e)(5).” See Request at 9. Counsel asserts that Solo promises to notify CBP in advance ever intends to import or distribute any other product which might conceivably be used as drug paraphernalia. See id. at 4. The record does not provide any information regarding the corporate structure of Solo, but counsel admits that Solo is “owned by the same principals” as Rocket Entertainment LLC. See id. at 1. 21 U.S.C. § 863(e)(5) and (6) states that: In determining whether an item constitutes drug paraphernalia, in addition to all logically relevant factors the following may be considered: . . . (5) whether the owner, or anyone in control of the item, is a legitimate supplier of related items to the community, such as a licensed distributor 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; According to the plain meaning of 21 U.S.C. § 863(e)(5), if an owner or anyone in control of the Solopipe® is a legitimate supplier of related items (i.e., multiple items) to the community, this may be considered in determining whether an item constitutes drug paraphernalia. As counsel contends, however, Solo was “formed as the exclusive importer and distributor of Solopipes® and no other product.” See Request at 9. Accordingly, 21 U.S.C. § 863(e)(5), which refers to a supplier of “related items in the community” is inapplicable to Solo, a supplier of a single product. We reproduce 21 U.S.C. § 863(e)(6), above, to demonstrate that if Congress intended a single item to satisfy 21 U.SC. § 863(e)(5) they would have explicitly provided so. Cf. 21 U.SC. § 863(e)(5), “related items;” and 21 U.SC. § 863(e)(6) “the item(s).” We find, therefore, that Solo fails to meet the criteria set forth at 21 U.S.C. § 863(e)(5), which allows evidence that an owner, or anyone in control of the item, is a legitimate supplier of related items to the community to be considered as a factor in determining whether an item constitutes drug paraphernalia. We also draw particular attention to the fact that Solo Industries, Inc. is “owned by the same principals” as Rocket Entertainment LLC. See Request at 1. 21 U.S.C. § 863(e)(5) explicitly refers to an “owner, or anyone in control of the item . . .” as satisfying the statute. It is unclear from the record if Rocket Entertainment LLC is “in control of the item [Solopipe®],” such that our finding in HQ030458 that the Solopipe® is offered for sale in association with other paraphernalia on what is tantamount to an online “head shop,” would control. Because we are not given enough information about the new corporate entity, Solo Industries, Inc., we confine our conclusion to the fact that Solo fails to meet the criteria set forth at 21 U.S.C. § 863(e)(5), which allows evidence that an owner, or anyone in control of the item, is a legitimate supplier of related items to the community to be considered as a factor in determining whether an item constitutes drug paraphernalia. Warranty Counsel asserts that if Solo receives a favorable ruling they will make changes to their website and instructions included with Solopipes® to include strong affirmative statements that they are not to be used for any purpose other than for smoking tobacco and will void the warranty if there is any indication that a Solopipe® has been used for any other purpose. See Request at 4 -5. The following conclusion reached in HQ H013316, dated March 10, 2008, is appropriate here: Although your client’s policy is to sell to tobacco retailers for use with tobacco, after sale and importation, your client cannot control to whom and for what purpose such merchandise is sold. That is, your client’s subjective intent regarding the use of the glass pipes does not change the objective fact that such pipes are likely to be used to ingest illicit substances. See HQ013316 at 4. According to this reasoning, the addition of descriptive materials accompanying the Solopipe® explaining or depicting its use with tobacco does not alter our finding that the primary use of the Solopipe® in the community is for ingesting marijuana. Likewise, although Solo offers to void the warranty if there is any indication that a Solopipe® has been used for any other purpose than smoking tobacco, this also does not alter our finding in HQ030458 that even assuming, arguendo, that the Solopipe® satisfies criteria 21 U.S.C. § 863(e)(1) and (2), the implements still fail to satisfy the criteria of 21 U.S.C. § 863(e)(3) and (4), above. As counsel concedes, there is no expert testimony concerning any lawful use of the product (21 U.S.C. § 863(e)(8)). We reaffirm our determination in HQ030458 that the exception in 21 U.S.C. § 863(f)(2) for items traditionally intended for use with tobacco products, including any pipe, does not apply to the Solopipe®. See HQ030458 at 10 – 11. While we are cognizant that the statute contemplates pipes intended for use with tobacco and that innovation in such articles should be accommodated, we conclude that the removal of the screens, the formation of Solo Industries, Inc., and the change in warranty terms notwithstanding, the Solopipe® is “likely to be used for” (see Posters 'N' Things, supra) the ingestion of marijuana. We reach this conclusion in full contemplation of the objective criteria listed in 21 U.S.C. § 863(e). Assuming, arguendo, that the Solopipe® satisfies 21 U.S.C. § 863(e)(1) and (2), the implements fail to satisfy the criteria of 21 U.S.C. § 863(3), (4), (5), (7) and (8), above. HOLDING: Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of the pipes at issue is unlawful and is prohibited. This ruling is consistent with previous rulings with respect to the admissibility of drug paraphernalia: H030458, dated October 2, 2008, HQ 014542, dated March 12, 2008, HQ 116374, dated December 20, 2004, HQ 116316, dated December 9, 2004, HQ 115551, dated February 14, 2002 and HQ 115461, dated August 31, 2001. If you have any questions regarding this determination, please contact Alaina L. Van Horn of my staff at (202) 325-0083. Sincerely, George Frederick McCray, Chief OT IPR and Restricted Merchandise Branch