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U.S. Department of Homeland Security Washington, DC 20229

U.S. Customs and
Border Protection

HQ H014542

March 12, 2008



Mr. Robert Lum
Overseas Purchasing Agent
MTG Imports
3 Reeves Station Road
Medford, NJ 08055

RE: “SmokeMiser”; Metal Pipe; Drug paraphernalia; 21 U.S.C. § 863

Dear Mr. Lum,

This is in response to your request for a classification ruling, dated March 26, 2007, made to the National Commodity Specialist Division, New York, regarding the “SmokeMiser,” a metal pipe you intend to import from China. Your request was forwarded to this office to determine whether the device constitutes drug paraphernalia as set forth in 21 U.S.C. § 863. A sample was provided for our examination.


The article at issue appears in this image downloaded from your website:

You describe the article as a stainless steel or aluminum smoking implement which “is intended to reduce second had smoke.” You allege that “it is used to as a pipe to smoke and exhale the smoke back into the bag so that he smoke is contained in the bag rather then (sic) into the area and thus preventing second hand smoke.”

Information on the website describes the use of the product thusly:

1. First thread the open end of a Smokemiser bag through the coupler and fold it over.

2. Attach the coupler to the base of the Smokemiser. When not in use, you may stuff the bag into the coupler allowing the Smokemiser to rest upright on a table.

3. Place only enough tobacco in the basket for one puff.

4. Place the basket in the Smokemiser tube and place the perforated cap on top.

5. Ignite the tobacco through the perforated cap and inhale the smoke.

6. Cover the perforation with your index finger and exhale the smoke into the bag.

7. Cover the Smokemiser mouthpiece with your thumb and breathe as needed.

8. Periodically inhale the smoke in the bag, exhaling back into the bag. It is suggested that you inhale from the bag a minimum of ten times to absorb enough smoke to eliminate the smell.

9. Be aware that you are absorbing more nicotine than you would from just one puff so take it easy until you get the hang of it.

10. Also note that condensation develops inside that bag. It is recommended that the Smokemiser should be used only by one person and that the bags be changed frequently.

A separate page of the website describes the use of the article with tobacco, repeating the prevention of second hand smoke allegation, and touting the costs saved by using lesser quantities of and less costly tobacco.


The relevant statute, 21 U.S.C. § 863 provides,

(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 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; (3) carburetion tubes and devices;

As we stated in Headquarters Ruling Letter (“HQ”) 116316, dated December 9, 2004, 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.

Under 21 U.S.C. § 863(f)(2), it is provided 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.”

In Posters 'N' Things v. United States, 511 U.S. 513, 515 (U.S. 1994), in considering the statutory language of the statutory precursor to 21 U.S.C. § 863, the Supreme Court analyzed the statute and the determined that the scienter element of the offense requires the government to demonstrate that the importers knew only that the goods were likely to be used with illegal drugs, rather than having to prove specific knowledge that the goods were “drug paraphernalia as defined by the statute.” (In 1990, Congress repealed § 857 and replaced it with 21 U.S.C. § 863 (1988 ed., Supp. IV). See Crime Control Act of 1990, Pub. L. 101-647, § 2401, 104 Stat. 4858. The language of § 863 is identical to that of former § 857 except in the general description of the offense. Section 863(a) makes it 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.” Posters 'N' Things v. United States, 511 U.S. 513, 516 (U.S. 1994).

The Court continued at 518 that:

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.

In turning to the article at issue, we conclude, your claims (via written submission and on the website) that the implement is intended solely for ingestion of tobacco notwithstanding, that the SmokeMiser is designed and is “likely to be used for” (see Posters 'N' Things, supra) the ingestion of marijuana. Pipe and cigar smokers generally do not inhale the tobacco smoke. Cigarette smokers do not ordinarily maximize their ingestion of smoke by capturing exhaled smoke in a bag and repeatedly inhaling and exhaling the captured smoke. Hence, the implement fails to satisfy the criteria of 21 U.S.C. § 863(e)(1) – (4), set forth above. We conclude that your claims regarding the elimination or minimization of second hand smoke are pretextual; the SmokeMiser resembles a bong or carburetion tube designed to allow a user to ingest single doses of marijuana. Its design minimizes the distinct odor (“Marijuana has a strong odor that clings to teens’ hair and clothing and can remain on their breath despite efforts to mask it.” See http://www.teendrugabuse.us/ marijuana.html) produced by combustion of the drug. Finally, the implement allows the user to minimize the amount of drug necessary per dose and to maximize the effects via repeated inhalation of the drug (see the marketing language above).

There is no evidence that you are engaged in the legitimate tobacco business (21 U.S.C. § 863(e)(5)), and although the SmokeMiser appears to be marketed as a single enterprise (21 U.S.C. § 863(e)(6)), there is, other than bald assertions and “puffing” (“an expression of opinion by a seller not made as an expression of fact (citation omitted).” Black’s Law Dictionary, Fourth Ed., 1979, p.1109) on the website, no evidence that there is legitimate use of the product in the community (21 U.S.C. § 863(e)(7)). Finally, there is no expert testimony concerning any lawful use of the product (21 U.S.C. § 863(e)(8)).


Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of such articles is unlawful and is prohibited. Because their importation is unlawful and prohibited, we are not authorized to return the sample.

This determination is consistent with previous rulings with respect to the admissibility of drug paraphernalia: 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 Andrew Langreich of my staff at (202) 572-8776.


George Frederick McCray, Chief

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