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HQ 116060

November 7, 2003

RES-2 RR:IT:EC116060 CK


Ryan Maxwell Riegg
691 Irolo Street, Ste. 301
Los Angeles, CA 90005

RE: 21 U.S.C. §863; Drug paraphernalia; Nargileh/Hookah water pipes

Dear Mr. Riegg:

This is in response to your request for a binding ruling, dated September 17, 2003, which enclosed supporting documentation. You request a ruling as to whether the importation of “Nargilehs/Hookahs” from Syria is prohibited by 21 U.S.C. §863. Our ruling on this matter is set forth below.


The supporting documentation included with your request defines, describes, and depicts the articles in question. Our review of this information reveals the following.

“Nargileh” is defined in Webster’s New International Dictionary as “a pipe used chiefly in the Near East that cools the tobacco smoke by passing it through a reservoir of water and that is provided with long flexible stems resembling tubes – compare HOOKAH.” Webster’s New International Dictionary (3rd. Ed.), Merriam-Webster, Phillipines, 1993. (Emphasis added)

“Hookah” is defined in Random House Unabridged Dictionary as “a tobacco pipe of Near Eastern [origin] with a long, flexible tube by which the smoke is [sent] through a jar of water and thus cooled.” Random House Unabridged Dictionary, Random House, New York, NY, 1998. (Emphasis added) Under the heading “PIPE, Tobacco,” Encyclopedia Americana states “[s]ome, like the hookah (Turkish pipe), have very long stems to cool the hot air that might otherwise burn one’s tongue. The hookah, by passing the smoke through water, not only cools it but purifies it. The hottest to smoke are the short-stemmed clay pipes, but any short-stemmed pipe, unless made of the finest material, tends to burn one’s tongue.” Encyclopedia Americana (Int’l Ed.), Encyclopedia Americana/Grolier Int’l, China, 2002.

You submitted an article published on The Voice of America website on May 18, 2003 describing the new trendiest gathering places, “called hookah bars.” The article states in its opening paragraph, “In Morocco and India, the water-pipe apparatus used to burn pungent, fruit-flavored lumps of tobacco is called the hookah. In Lebanon, it’s the narghile. Turks call it a chicha.” (Emphasis added) The article emphasizes the new trendy appeal of hookah pipes, and that hookah lounges and smokers are popping up across the big cities in the U.S. The article describes how the hookah is used to smoke flavored tobacco. The article goes into detail about a business called “Hookah Brothers” which sells between 4,000 to 5,000 hookahs, plus tobacco and fruit flavorings each month. According to the article, “Hookah Brothers” imports parts for their hookahs from the Middle East, and assembles them in the U.S. “Hookah Brothers” also states that they have whole containers of components stopped by Customs.

Another article submitted from The Washington Post, dated May 2, 2003, is captioned, “Hookah bars show burst in popularity.” This article focuses on Hookah bars in California, New York, Florida, and Wisconsin. The article discusses how to use hookahs to smoke tobacco.

Also submitted was an article from Time Magazine Archive (website Time.com), dated January 27, 2003, captioned “Healthy or Not, the Hookah Habit Is Hot. The latest student craze is smoking the ancient Middle Eastern water pipe.” The article discusses the rising popularity of Hookah bars in California and the use of the hookah to smoke to tobacco. The article also states, “the water pipe became synonymous with drug culture of the 1960s, an association that lingers. But in the past couple of years, the hookah has been resurrected in youth-oriented coffeehouses, restaurants and bars, supplanting the cigar as the tobacco fad of the moment.” (Emphasis added)

Another article submitted was from the Economist.com, dated May 3, 2001, wherein it is stated that Hookah Brothers is shifting 4,000 to 5,000 units a month from Egypt to the U.S. Quoted is an Egyptian wholesaler who speculates “his country is exporting some 200,000 of the gadgets a year.”

Two New York binding rulings on flavored tobacco were also submitted: NY C86794 (dated April 23, 1998) and NY 814794 (dated September 28, 1995). NY C86794 states, “It [tobacco] will be used for smoking with Middle Eastern water pipes.” NY 814794 states that, “Because of additives, the product [tobacco] will be smoked only with the use of a water pipe.”

You have also submitted numerous photographs, which depict the following: details of all pieces of the hookah; advertisements for a hookah bar; a hookah bar menu; men at a hookah bar; the interior of a hookah café; the exterior of a hookah café; and a cigar shop displaying hookahs in the store windows.


Whether admission of the subject articles into the United States is prohibited.


21 U.S.C. 863 provides, in pertinent part:

§ 863. Drug paraphernalia

(a) In general

It is unlawful for any person-
to sell or offer for sale drug paraphernalia;
to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or
to import or export drug paraphernalia.

(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 in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body, such as –
metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
water pipes;

[and numerous other articles, including certain pipes].

(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;
direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
the existence and scope of legitimate uses of the item in the community, and
expert testimony concerning its use.

(f) Exemptions

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 by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

Previously, in HQ 114939 dated February 14, 2000, U.S. Customs and Border Protection (CBP) held that hookah water pipes were drug paraphernalia and could not be imported. However, no evidence regarding the 8 above-described criteria was submitted in that ruling request.

In this case, in regard to the above criteria the requester submitted numerous newspaper articles, definitions, New York ruling letters, and photographs depicting the traditional use of the hookahs with tobacco products. Regarding criteria 1 and 2, while no evidence has been submitted regarding accompanying materials imported with a hookah, as stated earlier, and in the FACTS portion of this ruling, numerous newspaper articles, definitions, and two New York rulings from CBP describing the use of hookahs to smoke flavored tobacco were submitted. Also, this submission included the packaging of flavored tobacco, which contains a diagram of a hookah. Regarding criteria 3 and 4, newspaper articles advertising and reporting on hookah bars were submitted, as were photographs of a menu from a hookah bar, hookah cafes, and advertisements for hookah bars. As to criteria 5, the newspaper articles and photographs show hookahs being offered for sale, and the revenue of hookah dealers. However, no evidence of criteria 5 or 6 is directly attributable to your business. Once again, for criteria 7 and 8 numerous photographs, newspaper articles, and dictionary and encyclopedia definitions describe the long history of hookahs in the Middle East, and the growing popularity of hookah bars in the United States for smoking flavored tobacco.

In weighing the 8 criteria described above, as no one criterion is determinative, sufficient evidence has been submitted that is probative of the claim that the nargilehs/hookahs that will be imported are intended to be used with tobacco. As these nargilehs/hookahs are intended to be used with tobacco, they are not drug paraphernalia as defined in 21 U.S.C. §863.


The subject articles are not drug paraphernalia as defined in 21 U.S.C. §863, and are not prohibited from admission.


Glen E. Vereb

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