Drug Paraphernalia; 21 U.S.C. § 863; Controlled Substances Act; Admissibility; Tobacco Tasters; Pipes; Disposable Pipes; Disposable Smoking Devices; One Hit or One Hitters; Carburetion Tubes and Devices; Carburetor Pipes; Marijuana or Cannabis

March 1, 2010 HQ H082295 ENF-4-02-OT:RR:BSTC:IPR H082295 RFC CATEGORY: Restricted Merchandise David R. Hamill, Esq. David S. Salkeld, Esq. Arent Fox LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 RE: Drug Paraphernalia; 21 U.S.C. § 863; Controlled Substances Act; Admissibility; Tobacco Tasters; Pipes; Disposable Pipes; Disposable Smoking Devices; One Hit or One Hitters; Carburetion Tubes and Devices; Carburetor Pipes; Marijuana or Cannabis Dear Messrs. Hamill and Salkeld: This letter is in response to your October 16, 2009, request to U.S. Customs and Border Protection (CBP) on behalf of your client, Tobacco Tasters, Inc. (Sun Valley, California). In your request, you seek an advance or pre-importation ruling with respect (1) to the admissibility and (2) to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain disposable smoking devices. Please note that as we have determined below that the merchandise that is the subject of your ruling request to be prohibited and inadmissible merchandise, an advance or pre-importation ruling will not be issued with respect to the classification of the merchandise under the HTSUS. See 19 CFR 177.7(a) (No ruling letter will be issued in response to a request for a ruling in any instance in which it appears contrary to the sound administration of the Customs and related laws to do so.). FACTS In the letter submitted on behalf of your client, you state, in part, that: The merchandise covered by this ruling request comprises a smoking system that provides a disposable pipe for a limited tasting of a tobacco product. The instant tobacco tasting pipes are devices used for the one-time tasting of tobacco, particularly premium tobacco, without an entire load of tobacco being necessary. (Emphasis added.) o o o There is a need for a simple, disposable, one-time use pipe device that can be discarded after tasting each sample, which the Company intends to fill. (Emphasis added.) In fact, the tobacco tasting pipes are unique and fill a void in the tobacco market. When a buyer (wholesale or retail) goes into a tobacco wholesaler or retail tobacco store to buy bulk tobacco, he or she often wants to taste a new variety offered by the seller. This is usually done in a pipe that the buyer brings along, not wanting to use a pipe that has been someone else’s mouth. However, using the same pipe to sample a variety of tobacco does not give a true result because there is leftover tobacco or tobacco taste in the pipe from previous uses. Many tobacco users will purchase relatively inexpensive pipes such as corn cob pipes for this purpose. o o o The components of the disposable are constructed from inexpensive materials with a per unit cost of $0.16 USD. Specifically, the tubes are constructed of cardboard coated with a flame resistant foil and a brass screen formed into a basket-like structure, which functions as the receptacle for the tobacco. The tobacco taster pipe provides a device that allows for a safe and efficacious method for sampling tobacco. The finished product retails for $0.99 USD per disposable pipe and the price to distributors is as low as $0.30 USD. The pipes comprise two tubes, in which one tube has a slightly larger diameter than the other. The tube with the smaller diameter has a hole cut in it, in which is placed a small screen in the shape of a bowl, which has a lip around its upper surface. The screen is placed into the tube with the smaller diameter with the lip laying on the top surface of the tube. The tube with the larger diameter also has a hole, which is matched up with the hole in the tube with the smaller diameter. The hole is designed to be between 3/16 inches in diameter. The larger tube slides over the smaller tube trapping the lip of the screen between them. Since there is a tight fit between the tubes, the screen is held firmly in place between the two tubes, with the two holes in concentric position. A pinch of tobacco can then be placed in the screen bowl to be lit and tasted and when the tasting is completed, the tobacco taster can be discarded and a new one used for tasting another variety of tobacco. The primacy use of the articles is for tasting tobacco, but it could also be used for tasting other smokable products such as herbal or clove-based smoking products. For further detail, please refer to Exhibit 1, which contains a design patent for the tobacco tasting pipes (US 583,095 S, dated Dec. 16, 2008). o o o The Company’s design patent application notes that while the tobacco taster pipe tubes could conceivably be made of other materials, such as glass, stone, or metals, the preferred materials to make the tubes is cardboard because of cost. The application explains that low cost is important because the “the invention is designed to have one use and then be discarded.” (Emphasis added.) o o o The written instructions provided with the subject merchandise detail how it us [sic] to be used for the tasting of tobacco. These instructions are provided in Exhibit 2. The instructions consist of a small, multi-window instructional sticker that will serve as a visual aid in order to educate potential customers as to the product’s intent and use. This sticker will be placed on both styles of packaging [sic], and is most readily visible on the cardboard store display. o o o The written instructions on the sticker label that is affixed to each product also explain and depict the product’s use. Similar materials are also prominently displayed in large type at the point of sale. o o o In contrast to these [CBP] rulings, the subject merchandise is made of inexpensive cardboard and foil, and not metal or glass, which allows the user to discard after one use. (Emphasis added.) It has no similar type bowls or other suitable similar receptacles to smoke quantities of controlled substances. The reason for the smallish size bowl in Tobacco Tasters disposable pipe is because the pipe is designed for “testing” a small quantity of tobacco, and not for enjoying a “full serving.” Just as pipes require materials that can withstand combustion because they are vessels for burning substances, the subject merchandise includes a receptacle that can withstand limited combustions because they are vessels for burning substances of limited duration. The only conceivable drugs that could be used would be loose leaf drugs that could be smoked. (Emphasis added.) However, as these CBP rulings have clearly analyzed, the design features of other pipes in the marketplace make them far better and more efficient instruments to partake in such illicit activity. You have several footnotes in you letter of submission. They include the following ones: In footnote 2 in your submission, you state the following: A sample shipment of similar disposable tasting pipes was imported from China and was detained at the Port of Los Angeles/Long Beach (2704) on August 21, 2007. Due to the low value of the shipment, the Company did not challenge the detention and abandoned the merchandise. In footnote 3: The disposable pipe can be used up to 10 times and is advertised as such; however, given the retail cost of the disposable pipe—99 cents—the Company’s experience is that the pipe is used once and discarded. (Emphasis added.) In footnote 4: While the patents include claims for tasters of various materials, the Company currently produces tasters made of cardboard covered in foil as described in this ruling request. The ruling request is limited to tasters made from these materials. In footnote 6: As a practical matter, this request notes that actual tests of the disposable pipe allows for approximately 10 tests, but the preferred amount is a single usage. (Emphasis added.) In footnote 7: Please note that the original manufacturers of the product in China, without the consent and approval of Tobacco Tasters, have been selling and distributing the tobacco taster pipe under the “Crush” label previously used by Tobacco Tasters. In some cases, several internet websites have been used that appear to also market drug paraphernalia....This unauthorized advertising should not contravene the legitimate purposes for which the pipe has been designated and used. (Emphasis added.) Pictures of Samples & Packaging Submitted with Respect to the Ruling Request 

  A copy of the design patent D583,095 discussed in your submission is set forth below. Stephen R. Plank is listed as the inventor. We note that Stephen R. Plank is listed in a document found in your submission as the owner of Tobacco Tasters, Inc. 



 You also state that your client has a trademark registration for the terms “tobacco tasters.” We note that the registration is for the Supplemental Register and not the Principal Register. The registration number is Supplemental Register No. 3,555,532. See www.uspto.gov. The identification of goods states: single use tobacco pipes not of precious metal. The registrant is Patriarch, Inc. but the last listed owner is Tobacco Tasters, Inc. Below is a picture from the U.S. Patent & Trademark Office web site showing use of the mark.
We note that Patriarch, Inc. has a pending federal trademark application with the U.S. Patent & Trademark Office for the mark “Crush.” The serial number is 77,529,116. See www.uspto.gov. The identification of goods states: smoking accessories, namely, tobacco pipes. Below are pictures from the U.S. Patent & Trademark Office web site showing use of the mark. One of the pictures shows the same merchandise that is the subject of this ruling request and bears the mark “Tobacco Tasters.” 

 In your submission, you also include several documents as exhibits. They are discussed below. Samples of the product as well as packaging for the product were submitted under separate cover (see above pictures of samples). ISSUE: Whether the smoking devices under consideration constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). LAW & ANALYSIS As concerns what constitutes “drug paraphernalia” for purposes of 21 U.S.C. § 863, the statue, 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. o o o (d) ``Drug paraphernalia'' defined The term “drug paraphernalia” means 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 [emphasis added] 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) Matters considered in determination of what constitutes drug paraphernalia 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 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. (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 or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory. 21 U.S.C. § 863. In Posters ‘N” Things v. United States, 511 U.S. 513, 114 S. Ct. 1747, 128 L. Ed. 2d 539 (1994), the U.S. Supreme Court had an opportunity to consider the phrases (1) “primarily intended for use” and (2) “designed for use” with respect to drug paraphernalia. Although the court was interpreting the text in former 21 U.S.C. § 857, in 1990, Congress repealed that section of title 21 and replaced it with the 21 U.S.C. § 863, which is indicated in Posters ‘N’ Things to be identical to current section 863. See Crime Control Act of 1990, Pub. L. 101-647, §2401, 104 Stat.4858. See also, 21 U.S. at 516, n. 5; United States v. Search of Music Marketing, Inc., 212 F.3d 920, 925 (6th Cir. 2000). With respect to the above-mentioned first phrase, the court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. 21 U.S. at 521. Moreover, 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.” 21 U.S. at 521, n. 11. Additionally, the court stated 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.” 21 U.S. at 521-22, n. 11. Therefore, items having possible multiple uses can constitute drug paraphernalia for purposes of 21 U.S.C. § 863 if the likely use by customers of the seller of the items is for use with illegal drugs. With respect to the above-mentioned second phrase, the court concluded that “designed for use” is also to be understood objectively and refers to an item’s objective characteristics. 21 U.S. at 518. “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….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 base). Items that meet the ‘designed for use’ standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them.” Id. Primary Intended for Use An Internet search reveals a vast number of advertisements and/or reviews relating to the smoking device that is the subject of this ruling request that are associated with use of the smoking device for other than tobacco, i.e., marijuana or cannabis (some of which you appear to also have found in lieu of your comments in footnote 7 discussed above). They include the following ones (and include the accompanying pictures): CULTURE: SO CAL’S MEDICAL MARIJUANA LIFESTYLE MAGAZINE Welcome to CULTURE Magazine. Nearly every day, something happens in Southern California that affects your access to cannabis medicine. Laws are passed. New businesses open or fail. Festivals and events come and go at the speed of light. Staying on top of it all can sometimes seem impossible. Don’t panic. Here at CULTURE, our mission is to inform and entertain readers with the latest news and lifestyle trends of Southern California’s medical cannabis culture. You’ll meet the people and discover the organizations on the front lines of the battle for sensible drug policy. You’ll learn about the products and services at the heart of our industry. We’ll keep you engaged and we’ll keep you asking for more: That’s our purpose and our promise. The Crush Tobacco Taster On the surface, the idea of a disposable pipe might seem like a big waste of time. Why not just use a potato or soda can if you’re caught in lack of a bong? Answer: Potatoes and soda cans don’t come equipped with screens. Adding that critical carburetor can be a pain in the ass. (Emphasis added.) And potato and soda-can pipes are just so, well, low rent. The Crush Tobacco Tasters don’t suffer those drawbacks, and they’re really cool to boot. Priced around 99 cents apiece, they’re also low-rent, but they’re so smart-looking that nobody’s going to care. Resembling a miniature toilet-paper dispenser with a cigar-label wrapped around it, the Tobacco Taster is a wonder of deconstructed ingenuity: Just press your hand against one end of the tube and – voila! – you’ve got yourself some major carburetor action to control the burn. (Emphasis added.) They can be used and re-used up to five times before discarding. The only problem with these handy items is that getting your hands on them isn’t as easy as it should be. If you’re fortunate enough to find them at your local smoke shop, good for you. If not, you’ll have to do what we did: Scour the Internet for a vendor that seems trustworthy enough to send money to. It can be done, but an official Tobacco Tasters website sure would help.
See http://freeculturemag.com PIPE HYPE 100 Pipes for $50 = 50 Cents Each Each display box of Tobacco Tasters contains 100 disposable pipes. These Disposable pipes are perfect for concerts and clubs. They are also airport/airplane friendly. Keep extras in you glove box, backpack, desk drawer. No more smoking out of a can. Leave your nice glass piece at home!! (Emphasis added.)
 20 Pipes $10 20 Pipes for $10 = 50 Cents Each These Disposable pipes are perfect for concerts and clubs. They are also airport/airplane friendly. Keep extras in you glove box, backpack, desk drawer. No more smoking out of a can. Leave your nice glass piece at home!! (Emphasis added.)
 See www.shop.pipehype.com B.O.B. HEADQUARTERS Keep the heady you spent your life savings on safe. Need a disposable pocket pipe for a road trip or day at the beach? Here you go... 100 per display. (Emphasis added.)
See http://bobhq.com/retail/ Near Dark Smoking Paraphernalia Welcome to Near Dark Headshop Paraphernalia Supplies There are always lots of new Head Shop and smoking paraphernalia products to discover, see below, for the latest. If you are new here, to see the prices and order you will need a business account, please use the form, which is located in the Information box, in the left hand column. Near Dark GmbH is a wholesale Headshop supplier selling to Headshop’s; smoking retailers, tobacconists, outlets, dealers and distributors, worldwide. o o o 'Crush' Tobacco Tasters in a fancy display box. Premium disposable smoking pipe made from cardboard and foil with a screen in the combustion bowl. Particularly suitable for testing different tobaccos or as a discreet disposable hand pipe for festivals or on the move. (Emphasis added.) Includes: display box with 100 pieces. Suggested retail price 1,00€ / pc. In our opinion: the margin is right and the display box will also help to sell them well…. GRAB IT while you can
See www.neardark.de PIPES-SALE.COM Welcome to Pipes-Sale.com online pipes store. You'll find here our best wood pipes, metal pipes and mostly beautiful glass pipes collections, unique, high quality and shipped discreetly with care. o o o Pack of 5 [or 10 or 20] disposable Crush tobacco pipes. Comes with a pipe screen. The concept of a 1 to 7 time use disposable tobacco pipe is simply perfect. Great for tourists in resort areas, campers, hikers, or just people in the city or on-the-go! (Emphasis added.)
See www.pipes-sale.com From the following two websites listed below, the same advertisement was found. Apart from using the term ‘tobacco” in the mark itself, there is no reference to use of the device for sampling or tasting or testing tobacco. Rather, the advertisement describes the device as “[t]he world’s first disposable, compact, clean, and convenient pipe. They’re great for traveling, concerts, or anyone one the go.” These statements are inconsistent with your contention that the product is intended and sold for use in testing pipe tobacco. Finally, we note that the telephone and facsimile numbers listed on the two advertisements set forth below are found in documents in your submission with respect to the requester of the ruling. Additionally, the second below-listed website address (www.tobaccotastes.com) is found in the “written instructions” submitted with your request as exhibit 3. 
See www.phallixglass.com/tobaccotasters
See www.tobaccotasters.com/  In light of the above, it is quite clear that there is a very large and extensive market for the devices that are the subject of this ruling request that are likely or primarily purchased for use with marijuana or cannabis rather than for use in sampling or tasting or testing pipe tobacco. (Moreover, we note that it does not matter what trademark, if any, that this smoking device bears or is sold under because the issue is whether the device itself is likely or primarily purchased for use with a controlled substance for it to constitute drug paraphernalia.) Designed for Use A review of the design characteristics and features of the smoking devices under consideration shows them to be similar to those found to be associated with marijuana use. In United States v. Search Of Music City Marketing, Inc., supra, the U.S. Circuit Court of Appeals for the Sixth Circuit had the opportunity to consider the characteristics of pipes or devices used for marijuana rather than for tobacco: After conducting a two day evidentiary hearing, the district court individually evaluated each item at issue in detail. The court considered: descriptive material included with some of the seized items, the fact that Music City's retail stores sold legitimate tobacco products, testimony from multiple witnesses, advertised and actual uses of the items in the community, a treatise defining slang terms, and expert testimony concerning the items' uses. With regard to the pipes, the court credited Custom Agent Mangione's expert testimony as to their use in the community and their design characteristics. Agent Mangione had been involved with drug paraphernalia investigations since 1989 and had extensive training and experience dealing with drug paraphernalia. The court observed that Agent Mangione testified as to the various pipes' design characteristics that were more consistent with marijuana than tobacco use, including an invariably small bowl size, bowl covers without holes, lack of traditional mouthpieces and stems, lack of filters, and the fact that some of the pipes were constructed of material that would become too hot to hold in one's mouth if smoked for any length of time. Similarly, Agent Mangione testified that the "dug outs" and "SmokeLess" systems were commonly used in the community to smoke marijuana. Agent Mangione also pointed out that the metal or ceramic "bats" included with these items were too small to allow the user to inhale more than a few puffs of smoke and were therefore more consistent with smoking marijuana than tobacco. With respect to the metal screens, the court noted that Agent Mangione testified that they 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….Based on this evidence the court concluded that the items at issue were primarily intended or designed for use with controlled substances. Under these circumstances we cannot say that the district court erred in arriving at this conclusion. (Emphasis added.) 212 F.3d at 928. The design characteristics and features for devices referenced in United States v. Search Of Music City Marketing, Inc., that were determined to be more consistent with marijuana use rather than with tobacco use are also similar to those design characteristics and features found in the devices that are the subject of your ruling request: small bowl size, lack of traditional mouthpieces and stems, lack of filters, constructed of material that would become too hot to hold in one's mouth if smoked for any length of time, and too small to allow the user to inhale more than a few puffs of smoke—which makes them more consistent with smoking marijuana than tobacco. The design characteristics and features and your statements that these smoking devices are generally used only one time show that these devices are in the nature of “one-hit” or “one-hitter” devices primarily intended for use with marijuana or cannabis: One hitter: device for smoking dope, very small made for 1 hit. See ww.urbandictionary.com. One Hitter - A pipe that holds enough marijuana for one hit. See www.angelfire.com One-hits, or dugouts as they are sometimes called, are a highly portable method of smoking grass for someone who does not want to smoke an entire joint at one time. A one-hit is a small metal tube that has a small cavity at one end and a mouthpiece at the other. One presses the cavity into a small container of cleaned grass to fill it and then is lit somewhat like a cigarette and inhaled steadily until the grass is gone. One only gets one inhalation or "hit" per filling thus it is called a one hit. A dugout is small wooden container which has a space for the cleaned grass and another space for the one-hit itself. See www.lycaeum.org. You can hide your pot smoking habit while you are on the run by getting yourself a small one hitter in your head shop. One hitter is actually a small pipe which looks like a cigarette and can hold only a small amount of marijuana. One hitter is great for any situation where you could be seen and it could help you to conceal your pot use habit. See www.1stmarijuanagrowerspage.com There are several methods of smoking cannabis. The most popular include the spliff or joint, the bong, the pipe, the shotgun, and the one-hitter. o o o Pipes are usually made of blown glass, wood, or non-reactive metals. Metal pipes are often made of interchangeable pieces. Glass pipes often have a carburetor, colloquially referred to as a carb, rush, choke, or shotgun, that is covered for suction then released for inhalation. Some users also prefer vertically held pipes, or improvised pipes ("tinnies") made from aluminium foil (either constructed entirely from the foil or by using it as a gauze), small plumbing fittings, soda cans, crisp fruits or vegetables, or the cardboard from bathroom-tissue or aluminum foil rolls. o o o A "one-hitter" is a device that allows smaller amounts of cannabis to be smoked with equal suction. Cannabis buds are loaded into a compartment (often known as a dugout) for combustion. The smoker then lights the compartment and the entire amount of cannabis is smoked. This is repeated for each hit. This method is also efficient in titrating the exact dose desired. See www.medic8.com Indeed, the device is so identified as a “one hitter” on at least one website under the heading “headshop: smoking devices: one hitter.”
See www.head-nature.com CBP has considered products of a similar nature to the instant device and found them to constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). See, e.g., Headquarters Ruling Letter H024722 (June 10, 2008) (A smoking device having a small bowl is suitable only for small amounts of a material consistent with the ingestion of controlled substances.). In your submission, you contend that the devices that are the subject of the request are intended for use by smokers of traditional pipes to sample or taste or test pipe tobacco. By contending that these devices are so used by smokers of traditional pipes, you are in fact implicitly asserting that these devices can function as a substitute for an actual traditional pipe for use in smoking and sampling various types and varieties of tobacco. These devices, however, are vastly different from the traditional tobacco pipes one uses to smoke pipe tobacco: The five basic parts of today's smoking pipe are: (1) the bowl, in which the tobacco is burned; (2) the shank, usually a part of the bowl; (3) the stem, (commonly made of vulcanite, a form of hard rubber) which fits tightly into the shank; (4) the lip, a slight flange on the mouthpiece end of the stem; and (5) the filter, generally of metal, and attached to the stem. When the smoking pipe is assembled, the smoke travels from the bottom of the bowl, through the shank, around the filter, through the stem, and into the mouth. The lip prevents the stem from slipping between the smoker's teeth. Each one of these parts helps determine the quality of the smoke entering the smoker's mouth. (Emphasis added.) Their design displays the end result of years of trial and error, of luck and experiment.
See Smoking Pipe Guide, www.pipesmoking.net
Indeed, as indicated above, the various parts found in a traditional smoking pipe determine the quality of the smoke entering the smoker’s mouth. Therefore, the type and quality of a pipe used to smoke tobacco can affect the quality of the taste and flavor of the smoke entering a smoker’s mouth. Thus, the type and quality of a pipe is a factor to consider when one is selecting pipe tobacco: Selecting Pipe Tobacco To give tobaccos an adequate trial, it is necessary to smoke all of them under similar conditions. Try them at various times of the day and year, always in clean, rested pipes of the same quality. (Emphasis added.) Let your tobacconist help you to fill, light, and tamp the pipe properly so that the tobacco draws and burns slowly and evenly throughout, as would a fine, hand-rolled cigar. See http://members.bellatlantic.net/~vze43wza/smoke/tobacco.html Selecting Your First Tobacco The variety of pipe tobaccos is positively staggering, and the flavor of a blend is influenced not only by its component tobaccos, but also by myriad other factors such as the style of cut and the pipe used to smoke it. (Emphasis added.) See http://pipedia.org/index.php?title=Pipe_Packing_and_Smoking_techniques In contrast and as described and shown above and below, the product that is the subject of this ruling request merely consists of two tubes composed of cardboard covered by foil that are joined together at one end (one tube inserted into the other). A round hole has been cute into the larger tube into with a small metal screen basket has been inserted. 

  Clearly, these “Tobacco Tasters” disposable pipes and similar devices do not possess the design features and parts found in a traditional pipe that would allow them to serve as a functional equivalent for a traditional pipe for use in sampling or tasting or testing actual pipe tobacco. Indeed, based on its design characteristics and features, this smoking device is merely in the nature of a carburetor pipe, carburetion tube and carburetion device—which are identified in 21 U.S.C. § 863(d) as constituting drug paraphernalia: Carburetor: n. a device for smoking cannabis that mixes the smoke with air. (Drugs.) See www.dictionary.com Dictionary: This is a glossary of terms and slang words associated with marijuana and its uses. Carb - Short for carburator. A hole in a pipe or bong that is covered until the desired amount of smoke is in the chamber, then released to allow the smoke to rush into the lungs. Ex. The chamber is full, let go of the carb. See www.angelfire.com/extreme3/smotpoking/dictionary/#c The Homegrown: Cannabis Culture Smoking from a pipe is a very effective way to use marijuana….During the 20th century, pipes became a preferred method for smoking marijuana and other psychoactive drugs. The construction of pipes ranges significantly from the most simple corncob pipes, to ornate highly decorated hand-blown glass pipes. Materials used in pipes include ceramic, corncob, glass, metal, porcelain, stone or wood. Most pipes used for smoking marijuana are either made of glass and metal, but generally any pipe will work for this purpose. In general, pipes contain two constituent parts, the bowl for placing the material to be smoked and the stem through which to inhale the smoke. Some pipes also have a choke or a carb in order to control the flow of smoke as a marijuana-saving mechanism. A choke is essentially just a small hole on the left or right of the bowl. The use of pipes can vary depending on construction, but in general, the only variation is in whether or not there is a choke. For a pipe with no choke, simply hold the pipe with one hand and the lighter horizontally with the other. Attempt to place your thumb out of the way of the flame to avoid getting burned. The technique takes some getting used to and a number of novice smokers have another light the bowl for them. As with most things, practice makes perfect. Spark the lighter and place the flame near the marijuana and simultaneously inhale through the mouthpiece. Inhaling will pull the flame downward and into the bowl, and will pull the smoke into your lungs. The technique for smoking a pipe with a choke is similar with only minor differences.  To begin, place your thumb over the choke with the hand holding the pipe and proceed to light the bowl in the manner described above. Before you have inhaled your entire hit, release your thumb from the choke and remove the flame, but continue inhaling. This will clear the chamber of the pipe and is a technique to conserve marijuana. It is not always necessary to light the marijuana for your entire hit. Most times, the marijuana will cherry at some point during the hit. It may take some practice to figure out exactly when the marijuana is cherrying, but it is common to remove the lighter in the middle of a hit. Often times it is not necessary to light the marijuana at all. If the bowl is still cherrying from a previous hit, one need only cover the choke and inhale to get a hit. Cherrying is evidenced by a reddish glow emanating from the marijuana. See www.thehomegrown.com/article/pipes/pipes.html The Crush Tobacco Taster (see above reference) Resembling a miniature toilet-paper dispenser with a cigar-label wrapped around it, the Tobacco Taster is a wonder of deconstructed ingenuity: Just press your hand against one end of the tube and – voila! – you’ve got yourself some major carburetor action to control the burn. (Emphasis added.) See supra http://freeculturemag.com In light of the above, it is quite clear that the device under consideration is designed for use with a controlled substance (i.e., marijuana or cannabis) rather than for pipe tobacco. In your submission, you make several arguments (and submit accompanying materials identified as exhibits 1 to 6) in support of your contention that the “Tobacco Tasters disposable pipes” do not constitute drug paraphernalia. Upon review, we do not find any of your arguments and accompanying materials persuasive in establishing that these devices do not constitute drug paraphernalia under 21 U.S.C. § 863. First, as exhibit 1, the copy of the patent that you submitted is a patent for the design of the device. In light of the extensive discussion above, this design patent shows the features and characteristics that make the device designed for use with marijuana or cannabis rather than for use with actual pipe tobacco. Second, as exhibit 2, the “instructions” for use with the devices—as shown above and below on the picture submitted as exhibit 2 and on the picture of the packaging--merely show an individual placing some unidentified material or substances into the hole (i.e., the small metal screen basket) in the foil-covered cardboard tube and then placing the tube into his mouth. Indeed, the pictures show how one would smoke marijuana with this carburetor pipe or carburetion tube or carburetion device rather than pipe tobacco.

 Third, as exhibit 3, the advertising materials merely consist of some proposed advertisement in a publication indicated to be “Tobacconist” under which is written “Official Publication of the Retail Tobacco Dealers of America.” These documents do not go the to question of whether the devices under consideration constitute drug paraphernalia or not. Fourth, as exhibit 4, are documents that appear to be receipts for small purchases of the devices by some entities. Such purchases do not establish the use of the devices or whether they constitute drug paraphernalia or not. Fifth, as exhibit 5, what you identify as a California tobacco license in exhibit 5 is actually identified at the top of the document as an “Application for Wholesaler’s Cigarette and Tobacco Products License.” The name of the entity is listed as “Tobacco Tasters, Inc.” and “Stephen R. Plank” is listed as the owner. Sixth, as exhibit 6, you submit what you identify as “testimonials.” In actuality, there are two very short letters dated in March 2004 that are addressed to a “Mr. Plank” and express an interest in the product. Primary Intended for Use In light of the above, the “Tobacco Tasters disposable pipes” under consideration are primarily intended for use with a controlled substance (i.e., to smoke marijuana or cannabis) by the customers who purchase them from or through Tobacco Tasters, Inc. or from or through Tobacco Tasters, Inc.’s customers and affiliates. Therefore, although these devices could possibly be used to smoke a small amount of pipe tobacco, they constitute drug paraphernalia on the basis that they are primarily intended for use with a controlled substance. 21 U.S.C. § 863(d); See also, Posters ‘N’ Things, 21 U.S. at 521-22, n. 11 (“[I]tems ‘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.”). The fact that an item is “primarily intended” for use with a controlled substance is a relevant factor to consider in determining whether the item constitutes drug paraphernalia. See 21 U.S.C. § 863(e) (Logically relevant factors may be considered in determining whether an item constitutes drug paraphernalia.). Designed for Use In light of the above, the “Tobacco Tasters” disposable pipes under consideration are designed for use with a controlled substance (i.e., marijuana or cannabis) rather than for pipe tobacco. (Indeed, as clearly and unequivocally indicated above, these devices are in the nature of a carburetor pipe, carburetion tube and carburetion device, which are referenced in 21 U.S.C. § 863(d) as constituting drug paraphernalia.) Therefore, on this additional basis they constitute drug paraphernalia. 21 U.S.C. § 863(d). Finally, the record does not show or establish whatsoever that the smoking devices under consideration are traditionally intended for use with tobacco products. See 21 U.S.C. § 863(f). CONCLUSION The above-referenced smoking devices (identified as “Tobacco Tasters disposable pipes”) constitute drug paraphernalia for purposes of 21 U.S.C. § 863(d). Therefore, these smoking devices are unlawful and inadmissible, and their importation is prohibited. 21 U.S.C. § 863(a). Any future importations of the pipes will be subject to seizure. 19 U.S.C. § 1595a(c). Sincerely, Charles R. Steuart, Chief Intellectual Property Rights & Restricted Merchandise Branch