SP Direct Distributors, LLC; Admissibility and tariff classification of certain “pipe screens” and “rolling machines”; Drug paraphernalia; 21 U.S.C. § 863

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H080488 March 22, 2010 ENF-4-02-OT:RR:BSTC:IPR H080488 JLG CATEGORY: RESTRICTED MERCHANDISE Michael D. Koseck E. Besler & Co. 115 Martin Lane Elk Grove Village, IL 60007 RE: SP Direct Distributors, LLC; Admissibility and tariff classification of certain “pipe screens” and “rolling machines”; Drug paraphernalia; 21 U.S.C. § 863 Dear Mr. Koseck, This concerns your undated letter, submitted on behalf of SP Direct Distributors Inc., (SP Direct) to the National Commodity Specialist Division of U.S. Customs and Border Protection (CBP), New York, requesting a classification ruling regarding “pipe screens” and “rolling machines” SP Direct intends to import through the port of Chicago. Your request was forwarded to this office to determine whether the above-referenced products constitute drug paraphernalia, as set forth in 21 U.S.C. § 863. The determination below addresses whether the subject merchandise is permitted entry into the United States for Customs administrative purposes. FACTS: The articles at issue are pipe screens and rolling machines. With respect to the pipe screens, you state the following: “Place one of these 3/4? diameter fine-mesh Brash Screens in the bottom of the bowl of each of your non-system pipes to prevent small bits of tobacco from traveling up the stem. Sold in packs of five screens.” You describe the “rolling machines” as a “machine that is designed to roll either tobacco [sic] into individual cigarettes. Rolling a cigarette with tobacco does not require prep work because the leaf is already shredded.” To explain how the rolling machine is used, you state: Once the material is ready one opens up the rolling machine by sliding one of the rollers up and over; this exposes a channel where the material is loaded. Care must be taken to place a uniform amount of product in the channel or the burn rate will change as the cigarette is smoked. When ready the roller is slid back into position and locks into place. The product is cradled and confined in a round space and gets rolled when the user begins to turn one of the rollers. After a few turns, a single sheet of rolling paper is fed into the back of the channel with the ‘ungummed’ side going in first. When rolled carefully the paper will make a complete revolution in the channel and will wrap around and under itself. At this point the user licks the gummed part of the rolling paper and continues to roll the rest of the rolling paper in. When the roller is moved out of position once again a perfectly rolled cigarette is exposed. You maintain that “SP Direct is a big distributor of variety [sic] tobacco product, [and that] [a]ll tobacco accessories like pipe screens, [and] rolling machines are for tobacco use only and sold exclusively wholesale to other wholesalers and tobacco stores, not to individuals.” You also contend that SP Direct is a company operating under the name Supply2Store; however, you did not provide documentation to substantiate this assertion. Included with your submission were samples of the products at issue, as well as, a list of companies located in Illinois, Indiana, and Wisconsin, through which SP Direct, Inc. allegedly sells the subject products, which include: Mike’s Food & Tobacco, Inc.; Sams Group; Smoker Hub; Citgo; Columbus Marathon; Cigarettes Hut; EZ Mart; Sara Inc.; E&B Tobacco; and Cigarette Palace. The samples you provided to this office consist of one package of pipe screens labeled “Smokin’ Screens,” and two samples of hand-held operated rolling machines -- the “American Legend” and “Top.” The package of “Smokin Screens” is comprised of five thumb-sized mesh screens without any accompanying instructions or descriptive materials. The “Top” machine consists of two plastic rollers contained in a plastic body, and the “American Legend” automatic rolling machine has one plastic roller housed within a hinged flip-open metal tin box. Each rolling machine contains instructions that explain how to use tobacco and rolling papers in order to make cigarettes. Digital images of the samples are shown below.






ISSUE: The issue presented is whether the pipe screens and rolling machines under consideration constitute drug paraphernalia for purposes of 21 U.S.C. § 863 such that they are precluded from entry into the United States. LAW & ANALYSIS: The relevant statute that defines “drug paraphernalia” is 21 U.S.C. § 863, it 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 “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 the Controlled Substances Act (title II of Public Law 91-513). 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.” 21 USC § 863(d). 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. 21 USC § 863(e). 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.” 21 U.S.C. § 863(f)(2)(emphasis added). In interpreting the definition of “drug paraphernalia” for purposes of 21 U.S.C. § 863, the Supreme Court’s opinion in Posters 'N' Things v. United States, 511 U.S. 513, 515 (1994) is instructive. In that case, the Court held that under §863(d), the government may demonstrate that an item is drug paraphernalia by showing that an article is "primarily intended” for use with drugs, or "primarily . . . designed" for use with drugs. Considering the definition of drug paraphernalia contained in the language of the federal statute that preceded 21 U.S.C. § 863, the Court concluded that the statute contains an objective scienter requirement, and that the phrase “primarily intended or designed for use,” as indicated in § 863(d), establishes objective standards for determining what constitutes drug paraphernalia. Posters ‘N’ Things v. United States, 511 U.S. 513, 522 (1994). As concerns the “designed for use” element of section 863(d), the Court determined that this portion of the statute “focuses on the physical characteristics and design features of the items.” Posters, 511 U.S. at 518; see also Hoffman Estates, 455 U.S. 489, 501 (1982). Relying upon its decision in Hoffman Estates et al. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 500, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982)), the Court stated the following: 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). Accordingly, the “designed for use” element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners. Posters, 511 U.S. at 518. Regarding the “primarily intended . . . for use” prong of section 863(d), the Supreme Court concluded that this term is to be understood objectively and refers generally to a products likely use rather than to a defendant’s state of mind. 511 U.S. at 519 (emphasis added).  The Court noted, however, that while the “definition of ‘primarily intended’ is ‘objective,’ . . . it 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. . . . 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.” 511 U.S. at 522 n.11 (1994). 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. . . .” 511 U.S. at 520 (citing 21 U.S.C. § 863(f)(2)). The Court noted 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. Posters, 511 U.S. at 521 (citations omitted). Accordingly, the Court concluded that the phrase “primarily intended or designed for use” in the Mail Order Drug Paraphernalia Act establishes objective standards for determining what constitutes drug paraphernalia. Turning to the articles at issue, it is our position that the “Smokin Screens” under consideration are “primarily intended” for use with illicit substances, and therefore constitute drug paraphernalia as defined in 21 U.S.C. § 863. However, the “rolling machines” under consideration do not meet the requirements of the statute and thus do not constitute drug paraphernalia as defined in 21 U.S.C. § 863. “Smokin Screens” The first part of the statute to evaluate is the “designed for use” standard, which refers to a product’s design rather than the intent of the manufacturer. In Hoffman Estates, the Supreme 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. Hoffman Estates, 455 U.S. at 501 (holding that a village ordinance requiring the license for sale of items “designed or marketed for use” with illegal cannabis or drugs was neither unconstitutional nor impermissibly vague). Moreover, the Court stated that items primarily used for “nondrug purposes, such as ordinary pipes, are not considered ‘designed for use’ with illegal drugs.” Id. Thus, an article without any apparent legitimate purpose is considered to be “designed for use” with illicit substances, as defined in 21 U.S.C. §863. The pipe screens are manufactured for use with various pipes and not solely for use with illegal drugs; therefore, based on the information in the record they do not satisfy the “designed for use” criteria. Next, we examine the “primarily intended . . . for use” prong of the statute, as pipe screens are dual purpose/multiple-use items, i.e., they may be used for both legitimate and illegitimate uses. Under the statutory scheme, multiple-use items may be shown to be “drug paraphernalia” if it is established that such items are “primarily intended” for use with drugs. In Posters ‘N’ Things, the Court explained that the “primarily intended” phrase of the statute indicates that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia. Posters, 511 U.S. at 522 n.11. The government need only demonstrate that the products at issue are likely to be used with illegal drugs; thus, specific knowledge that items are “drug paraphernalia” is not required. Id. at 524 n.13. In reaching this determination, the government may also consider the non-exhaustive list of objective criteria outlined in § 863(e), in addition to all other logically relevant factors. Upon examining the elements identified in 21 U.S.C. § 863(e), we conclude that the “Smokin Screens” are primarily intended for use with controlled substances. In this instance, you state that the pipe screens are to be used in the bottom of the bowl in “non-system pipes to prevent small bits of tobacco from traveling up the stem.” The sample provided does not have a description on the packaging, and there is no indication that any instructions regarding the use of the screens accompany the item. 21 U.S.C. § 863(e)(1)-(2). An internet search reveals that the narrative you provided was taken from the description of “Brass Pipe Bowl Screens” found on the website for E.A. Carey’s Smokeshop (E.A. Carey), a legitimate supplier of tobacco-related items. Moreover, the sample provided to CBP is identical to the “pipe screens” sold by E.A. Carey, and the screens sold on this website do not have a description of the product on the packaging, or instructions concerning its use. Accordingly, we determine that the “pipe screens have not met the requirements of 21 U.S.C. § 863(e)(1)-(2). In turning to additional factors noted in the statute, we find that an independent internet search of the words “tobacco + pipe screen” produces a few websites that advertise pipe screens for legitimate uses. For example, MonsterMarketplace.com describes pipe screens as items that “[f]ilter out the tobacco residue,” Uxsight.com states that pipe screens “avoid the blend of tobacco and slobber [and promote] more healthy smoking and help you saving your tobacco[sic],” and as previously noted the pipe screens sold on the website for E.A. Carey’s Smokeshop state that screens are to be placed in the “bottom of the bowl of . . . [a] non-system pipe to prevent bits of tobacco from traveling up the stem.” Two additional websites that sell legitimate tobacco products, pipesandcigars.com and the cigarstore.com, advertise pipe screens on their websites as well. While certain websites tout lawful uses for pipe screens, there are several well-known pipe and tobacco sites and on-line magazines that do not sell or display any type of pipe screens. In fact, many websites and on-line message boards maintain that pipe screens are not typically used for smoking tobacco due to the fact that pipe tobacco lacks seeds, and because the majority of pipes are made with significant precision such that tobacco typically does not travel up a pipe stem. Further, evidence indicates that a number of on-line drug culture forums and websites explain how pipe screens are used with pipes for smoking marijuana. In Pot Culture: the A-Z Guide to Stoner Language and Life, a screen is defined as “a circular piece of thin metal wire mesh that is placed in the bowl of a pipe or bong to prevent marijuana from being sucked into the stem chamber prematurely, [which is] [a]vailable at smoke and head shops. . . .” Shirley Halperin & Steve Bloom, Pot Culture: the A-Z Guide to Stoner Language and Life, 121 (Abrams 2008). Other sources contend that a screen is necessary if using a wood or corn pipe to smoke marijuana. See Is My Kid Smoking Pot, http://www.ismykidsmokingpot.com/index.html (last visited December 2, 2009) (stating that “Bongs, pipes, and bowls all . . . need screens so that the pot will not inadvertently get sucked into the mouth of the smoker. Screens are sold at smoke shops and wherever else bongs, pipes, and bowls are sold . . . .). Additionally, a web search of the terms “pipe screen” and “pipe screen forum” produces a significant number of results oriented toward the ingestion of controlled substances, with a few of the websites describing how to use screens with illegal drugs. The composition of pipe tobacco obviates the need for a screen when smoking, and common knowledge in the drug community is that mesh screens and/or pipe screens are used to convert tobacco pipes and other items into implements used for ingesting controlled substances. Thus, based on the information in the record we determine that pipe screens are widely publicized for use with illicit substances. 21 U.S.C. § 863(e)(3); 21 U.S.C. § 863(e)(7). You fail to meet the criteria of 21 U.S.C. § 863(e)(3)(5) as well. Your ruling request includes a list of companies that allegedly purchase the subject products from SP Direct, and you maintain that SP Direct does business under the name “Supply2Store.” A review of the website, www.supply2store.com, reveals that a variety of tobacco-related goods are sold on the site; however, there is no indication that SP Direct is affiliated with the site. Moreover, an independent search in various electronic public record databases fails to demonstrate a relevant business relationship between SP Direct and Supply2Store. The business records generated upon conducting a company search of the name “SP Direct Distributors, Inc.” indicates that the company specializes in general warehousing. Each business record produced for the company “SP Direct Distributors, Inc.” lists the same address for the company; however, none of the records indicate that SP Direct is affiliated with or doing business under any other name. The business report generated after conducting a company search of the name “Suppy2Store,” indicates that Supply2Store handles “durable and nondurable goods,” and notes that the company is affiliated with and/or doing business under a name entirely unrelated to SP Direct. Consequently, there is no evidence connecting SP Direct to Supply2Store, and little is known about either company. Although SP Direct purportedly distributes the merchandise under consideration to legitimate companies, there are incongruities in the record. CBP is unable to confirm that SP Direct is associated with the company Supply2Store, as it alleges, and there is insufficient information to establish that SP Direct is engaged in the legitimate supply of tobacco-related products. 21 U.S.C. § 863(e)(5). Further, in United States v. Search of Music City Mktg., Inc., 212 F.3d 920 (6th Cir. 2000), the U.S. Court of Appeals for the Sixth Circuit determined that pipe screens and wire mesh screens constituted drug paraphernalia, as defined in the Mail Order Drug Paraphernalia Act. In affirming the lower court’s decision, the appellate court relied upon the expert testimony of Customs Agent Mangione, who testified that “[metal screens] were commonly used in small marijuana pipes to keep seeds and stems from being sucked into the smoker’s throat, but were not used in traditional tobacco pipes.” United States v. Search of Music City Mktg., Inc., 212 F.3d 920, 928 (6th Cir. 2000); 21 U.S.C. § 863(e)(8). Finally, we cannot address the factors in 21 U.S.C. § 863(e)(4) or (e)(6), because CBP has no knowledge of how the pipe screens will be displayed for sale, or evidence of the ratio of sales of the pipe screens to the total items sold by SP Direct or its retailers. 21 U.S.C. §863(e)(4); 21 U.S.C. § 863(e)(6). In view of the above, the record supports a finding that the “Smokin Screens” at issue are “primarily intended . . . for use” with controlled substances. Thus, the pipe screens under consideration constitute drug paraphernalia for purposes of 21 U.S.C. § 863. “Rolling Machines” In turning to the rolling machines, based on the information available, it is our position that the “TOP” and “American Legend” rolling machines are not “primarily intended or designed for use” with drugs, and thus, do not constitute drug paraphernalia as defined in the Mail Order Drug Paraphernalia Control Act. As concerns the “designed for use” standard, pursuant to 21 U.S.C. § 863, an article without any apparent legitimate purpose is considered to be “designed for use” with a controlled substance. The rolling machines at issue are dual purpose items because they can be used with both legitimate and illegitimate items. As such, the rolling machines do not satisfy the “designed for use” standard in the statute. In examining the “primarily intended . . . for use” portion of the statute, we note that it is the likely use of customers generally, not any particular customer, which can render multiple-use item drug paraphernalia. See Posters, 511 U.S. at 522 n.11. Further, we shall consider the elements outlined in 21 U.S.C. § 863(e), in addition to all other logically relevant factors. The “TOP” rolling machine, which is approximately 3 inches long, consists of two parallel plastic rollers contained in a plastic body. A vinyl material that covers the rollers and the instructions that accompany the product indicate that the machine is to be used with cigarette tobacco. A review of the company’s U.S. trademark for the word “TOP” reveals that the mark is registered for cigarette rolling machines, identical to the rolling machine at issue in this request, and a specimen provided to the U.S. Patent and Trademark Office shows that the “TOP” machine is encased in packaging that bears language informing consumers that the machines are intended to be used with  cigarettes. We note that Top Tobacco, LP is a recognized tobacco company known for manufacturing cigarettes and tobacco accessories, including its “TOP” cigarette rolling machine, and there are several credible cigarette and tobacco websites and companies that advertise rolling machines, similar to the “TOP” machine, as a tobacco-related product. The “American Legend” machine is an automatic rolling machine, approximately 3½ inches long, that consists of a roller housed within a hinged flip-open metal tin box. The sample provided to CBP does not include packaging, but the instructions attached to the inside of the machine explain how the product is used and indicate that the machine is intended to be used with tobacco. 21 U.S.C. § 863(e)(1)-(2). Furthermore, the “American Legend” machine is nearly identical to other automatic rolling machines that are widely publicized for use with tobacco. Although the machines are advertised for legitimate uses, there are several websites and online message boards that promote the use of rolling machines with illicit substances. Consequently, we conclude that the rolling machines are advertised for use with tobacco and controlled substances. 21 U.S.C. § 863(e)(3). There is ample information demonstrating that rolling machines have a legitimate use in the community. Evidence indicates that tobacconists sell cigarette rolling machines identical to those that are the subject of this ruling request. Sources also note that custom-made (i.e. roll-your-own) cigarettes are becoming more popular. Proponents of custom-made cigarettes maintain they are more economical and have a better taste and quality than manufactured cigarettes because they do not contain tobacco by-products, chemicals, or other additives. Others contend that custom-made cigarettes will become more popular as a result of the 2009 Children’s Health Insurance Program Reauthorization Act, which nearly tripled the Federal excise tax on certain tobacco products – namely ready-made cigarettes. See Matt Apuzzo, Tobacco Execs Quickly Find Loophole, Associated Press, November 17, 2009, at Washington Dateline; Editorial, Roll Your Own Tax Rate, N.Y. Times, November 22, 2009, at 9, available at www.nytimes.com; (noting that although a substantial tax increase in roll-your-own tobacco occurred, after the increase took effect companies re-marketed roll-your-own tobacco as pipe tobacco, which has a significantly lower tax than other cigarette and tobacco products). As there is evidence that the 2009 tax hike has caused an increase in consumers’ use of roll-your-own tobacco, we believe a higher demand for rolling machines and other roll-your-own products is likely. Therefore, we determine that the rolling machines under consideration are nationally advertised for use with tobacco and illicit drugs, and that there is sufficient evidence to establish that the machines have a legitimate use in the community. 21 U.S.C. § 863(e)(3); 21 U.S.C. § 863(e)(7). As stated earlier, the requirements of 21 U.S.C. § 863(e)(5) have not been satisfied because there is insufficient information to substantiate SP Direct’s contention that it is a legitimate supplier of tobacco-related products. 21 U.S.C. § 863(e)(5). Additionally, CBP cannot address the factors outlined in 21 U.S.C. § 863(e)(4), (e)(6), or (e)(8) because the record does not include information concerning how the rolling machines will ultimately be displayed for sale, documentary evidence regarding the ratio of sales of the machines to the total items sold by SP Direct or its retailers, or (3) expert testimony regarding use of the rolling machines. In weighing the elements enumerated in Section 863(e), in addition to other logically relevant factors, we conclude that in the particular circumstances of this case, the rolling machines under consideration do not constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). HOLDING: In conformity with the foregoing, it is our position that the above-referenced “Smokin Screens” constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d); therefore, pursuant to 21 U.S.C. §863(a), the importation of the pipe screens is prohibited. Based on the information in the record, it is our position that the above-referenced rolling machines are not drug paraphernalia for purposes of 21 U.S.C. § 863(d). As such, the importation of the subject rolling machines is not prohibited. If you have any questions concerning this determination, please contact Janelle Gordon of my staff at (202) 325-0087. Sincerely, Charles R. Steuart, Chief Intellectual Property & Restricted Merchandise Branch