# HQ H030458

## October 2, 2008

## 

## ENF-4-02-OT:RR:BSTC:IPR H030458 AML

CATEGORY: RESTRICTED MERCHANDISE

Port Director

U. S. Customs and Border Protection

301 East Ocean Blvd.

Long Beach, CA 90802

Attn.: Team 733

RE: Protest \# 2704-08-101223; Admissibility of "Solopipe"®; Drug
paraphernalia; 21 U.S.C. § 863

Dear Port Director:

This is in response to protest 2704-08-101223, filed by counsel on
behalf of the petitioner, Rocket Entertainment, LLC (hereinafter
"petitioner" or "Rocket"), which pertains to the March 19, 2008 demand
for redelivery made by your port, regarding what counsel argues to be
"tobacco pipes" marketed and sold under the name "Solopipe"®. A brief
with exhibits was submitted for our consideration. Also considered were
arguments made via teleconference and counsel's supplemental submission
dated August 27, 2008.

**FACTS:**

We paraphrase counsel for protestant's description of the merchandise as
follows:

The Solopipe® is a new and unique product, designed as an "integrated
smoking device (the device has a built in lighter) for holding tobacco
and a duct for drawing smoke like a pipe."

![](media/image1.png){width="2.375in" height="1.6576388888888889in"}
![](media/image2.png){width="2.504861111111111in"
height="1.6583333333333334in"}

Images of the implement from the official website.

The name Solopipe® is a registered trademark and a patent application
has been filed for its design. Rocket imports and sells the Solopipe®
domestically to an exclusive distributor. The article is sold both to
retail stores and to individuals via the internet.

Counsel for protestant alleges that the product is a self-contained
smoking apparatus that is intended for use with tobacco. Referring to
the official Solopipe® and other websites, counsel states that the
article "contains a ¾ inch deep bowl which accommodates tobacco up to
the equivalent of more than one half of one cigarette." Counsel adds
that the Solopipe® is sold to tobacco shops and tobacco product
distributors, can be purchased online by individuals, is marketed in
periodicals of national circulation as being intended for use with
tobacco, and that its distributor participates in national trade shows
for tobacco-related products.

Counsel contends that, with regard to CBP's demand for redelivery (which
was based upon the determination that the product is similar to an
article previously determined by CBP to be paraphernalia under 21 U.S.C.
§ 863, see below), that port personnel did not consider the factors set
forth in 21 U.S.C. § 863(e) or the exemption from the statute's
prohibition for products used with tobacco set forth in § 863(f) (both
subsections are also set forth below). Counsel contends that the
Solopipe®, in consideration of the factors and exemption mentioned
above, is not prohibited paraphernalia and that 21 U.S.C. § 863 does not
preclude entry of the article into the United States.

Specifically, counsel makes the following contentions regarding the
factors set forth at 21 U.S.C. § 863(e):

1.  That the Solopipe® is marketed solely as a tobacco pipe on its
    website: *www.solopipe.com*, in purported satisfaction of criteria 1
    and 2; and the advertising for the article refers exclusively to its
    use as a tobacco smoking implement in purported satisfaction of
    criteria 3 and 4;

2.  That the exclusive U.S. distributor, JMJL, Inc., participates in
    national trade shows for tobacco products, and is a member of
    tobacco trade associations; the exclusive distributor is engaged in
    the legitimate business of tobacco distribution in purported
    satisfaction of criterion 5;

3.  Testimonials from handicapped users extolling the design of the
    Solopipe which enables use in one hand in purported satisfaction of
    criterion 7.

Counsel contends that the article is distinguishable from various
implements which have been previously determined by CBP to be
paraphernalia under 21 U.S.C. § 863, emphasizing the Solopipe's® lack of
a carburetor or "carb"[^1], and emphasizing the constituent materials as
contrasted to other smoking devices previously determined to be
prohibited paraphernalia.

Counsel concludes that CBP's demand for redelivery (based upon the
conclusion that the Solopipe® is prohibited paraphernalia) is
speculative and urges CBP to allow its entry.

Our independent search of the internet revealed the following
information (all sites last visited on September 3, 2008):

1.  That JMJL, Inc., the exclusive distributor of the Solopipe®, markets
    "the revolutionary Prizm transparent rolling paper, Prizm Flavored
    Transparent Rolling Paper, EZ Splitz, and the new revolutionary
    Solopipe® Lighter." See
    *http://www.alibaba.com/company/10933084.html*.

> The EZ Splitz is a device for cutting "blunts." See
> *www.ezsplitz.com/* and
> *http://forum.grasscity.com/seasoned-tokers/237039-ez-splitz.html*.
> See also *http://www.cigaradvisor.com/ qa.cfm?id=88*:
>
> A "blunt" is made by taking something like a Phillies Blunt (any
> machine-made convenience store cigar will do), unrolling or splitting
> it open, removing the tobacco, replacing it with marijuana, and
> rolling it up again in the wrapper leaf which is often a "homogenized
> wrapper" made from bits of tobacco leaf and rolled into big sheets
> like paper bolts.

See also: *http://www.oas.samhsa.gov/2k7/mjBlunts/mjBlunts.cfm*.

Similarly, a search of the term "JMJL" also revealed a reference to
"JMJL Global Inc. Dba The Clear Choice Worldwide" at
*http://www.tobaccoplusexpo.com/2007-PDF-Files/Exhibitors-Brochure.pdf*,
one of the tobacco expositions counsel for protestant cites as evidence
demonstrating the legitimacy of JMJL as exclusive distributor. A visit
to *www.tccworldwide.com* reveals not only that The Clear Choice
Worldwide/TCC and JMJL operate in the same town in California, but also
that, in addition to the Solopipe®, blunt cutters and splitters, clear
and flavored rolling papers, the site also offers for sale wired rolling
papers, articles listed as paraphernalia in 21 U.S.C. § 863(d)(14).

> 2\. A search of the term Solopipe® produced results lauding the device
> for its use as an implement for ingesting marijuana:
>
> See, *e.g*., *http://shop.grasscity.com/shop/grasscity/misp059.html*;
> see also
> *http://the-gadgeteer.com/review/solopipe_self_igniting_tobacco_pipe*:
>
> I'm sure the HighTimes crowd can find gnarly uses for the Solopipe, as
> it seems that's who it's primarily aimed at. Solopipe mentions in
> their advertising that the handicapped or disabled can use the pipe
> since it is able to be operated with one hand. I guess I can see a
> certain medicinal use for this gadget. Especially by cancer patients
> who suffer from severe nausea and weakness while undergoing
> chemotherapy. However, I imagine arthritis sufferers would have a
> tough time trying to operate the Solopipe.
>
> Say that reminds me, I know of a guy in Houston that would really
> enjoy this gadget! Especially at 4:20pm everyday, cough-cough. Now I
> know there are people that have legitimate medical needs for the wacky
> tobaccy, but he's not one of them! Ah, but I divagate.

See also:
*http://gizmodo.com/gadgets/put-yer-weed-in-it/solopipe-self+igniting-bowl-lets-the-good-times-roll-273142.php:*
"No more fumbling around for a lighter with the brand new Solopipe, the
self-lighting pipe that lets you put your weed in its bowl, slide the
lid over it, and then you can carry around your own personal mobile
smoking station right there in your pocket\[,\]", and
*http://boards.cannabis.com/medical-marijuana-methods/147446-solopipe.html*.

We note that the notice for redelivery was prompted by the perceived
similarity of the Solopipe® to the article subject of Headquarters
Ruling ("HQ") 114968, dated May 2, 2000. In that ruling, CBP determined
that "a smoking assembly which holds a pipe, lighter and smoking
material" which "assembly will allow the lighter, pipe, and smoking
supply to be carried in a single unit," with dimensions that "permit
ready transport in either a shirt or jacket pocket" constituted
prohibited paraphernalia pursuant to 21 U.S.C. § 863.

In the supplemental submission, counsel for protestant contends that use
of the screens in the Solopipe® ("Your Solopipe tool kit comes with 3
extra screens." See *www.solopipe.com*, "How to clean your Solopipe") is
optional, based on the preference of the ultimate purchaser. Counsel
adds that use of the screens prevents the buildup of ash cake (ash cake
which builds up over time and enhances the flavor of tobacco used by
smokers). Counsel surmises that the screens prevent the escape and
inhalation of hot embers from the bowl of the implement to the mouth of
the user. Finally, counsel contends that the use of the screens will
lessen the frequency of maintenance cleaning of the implement by keeping
the stem clear of resin and other debris.

Counsel further contests our interpretation of *Posters \'N\' Things v.
United States*, 511 U.S. 513 (U.S. 1994) vis-à-vis the purpose of 21
U.S.C § 863. Counsel states that the Supreme Court "specifically
discussed the difference between the "possibility" that an article might
be used in an illegal manner and the "likelihood" that it might be so
used." We address those contentions below.

Counsel contests our conclusion that JMJL, the wholesale distributor of
the Solopipe®, is a purveyor of drug paraphernalia. Counsel states that
JMJL and "the wholesalers to which it sells the Solopipe for ultimate
retail sale to consumers, are legitimate sources of distribution."

Finally, counsel argues that "unless Customs has tangible evidence
showing general use of the Solopipe® is for the introduction of illegal
drugs into the human body, Customs must accept the evidence \[counsel\]
submitted showing that the Solopipe® is generally used for smoking
tobacco."

**LAW AND ANALYSIS:**

Initially we note that the matter protested is protestable under 19
U.S.C. §1514(a)(4) as a decision on the demand for redelivery of
merchandise to CBP custody. The protest was timely filed on April 17,
2008, within 180 days of liquidation of the entry on February 26, 2008,
and the March 19, 2008 demand for redelivery, pursuant to 19 U.S.C.
§1514(c)(3) (Miscellaneous Trade and Technical Corrections Act of 2004,
Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19
U.S.C. § 1514(c)(3) (2006).

As you are aware, 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:

> \[A\]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 \[.\]

As asserted by the protestant and as CBP acknowledged most recently in
Headquarters Ruling Letter ("HQ") H024722, dated June 10, 2008, 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."

The demand for redelivery was based on the perceived similarity between
the Solopipe® and the article at issue in HQ 114968. In HQ 114968, CBP
ruled on a "smoking assembly" that held a pipe, lighter and smoking
material. (The device was marketed as a "One hitter," which is variously
defined as single, chambered device for ingesting marijuana; see
*http://en.wikipedia.org/wiki/Dugout\_(smoking);see also United States
v. Search of Music City Mktg., Inc., 212 F.3d 920, 922, footnote 1 (6th
Cir. Tenn. 2000)* ("The "dug outs" and "SmokeLess Smoking Systems"
consisted of a hollow wood or plastic box with a covered compartment in
which the smoking material could be stored and another covered storage
compartment in which a hollow metal or ceramic cigarette shaped "bat"
was kept. When the cover was moved to expose the bat, a spring would
partially eject it for smoking.") The smoking pipe, made of brass, was
cylindrical and measured 3 1/2 inches in length. The pipe bowl was in
line with the pipe stem and was removable from the carrying case of the
device. CBP determined that the small bowl was suitable only for small
amounts of material consistent with the ingestion of controlled
substances, and concluded that there were reasonable grounds for
believing that the article was drug paraphernalia. We note that the
brass portion of the device resembles a "chillum"; an article designated
to be paraphernalia within the statute at 21 U.S.C. § 863(d)(11); see
also the reference to "bats" at the website referred to above.

Below is a schematic drawing of the device at issue in HQ 114968:

> ![](media/image3.jpeg){width="2.372916666666667in"
> height="1.8805555555555555in"}

We conclude, based on the description of the device in HQ 114968 and the
image above, that the Solopipe® is not similar to the article determined
to be prohibited paraphernalia therein. Therefore, this determination
concerning the admissibility of the Solopipe® is not controlled by that
ruling.

Nevertheless, we consider the admissibility of the Solopipe® in
accordance with 21 U.S.C. § 863 and the relevant case law.

In *Posters \'N\' Things v. United States*, 511 U.S. 513 (U.S. 1994), in
considering the language of the statutory precursor to 21 U.S.C. § 863,
the United States 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." Via footnote 5, the Supreme Court noted that "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 511 U.S. 513, 518:

> 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 reaching this conclusion, the Supreme Court reasoned that:

> Several considerations lead us to conclude that "primarily intended .
> . . for use" refers to a product's likely use rather than to the
> defendant's state of mind.
>
> First, the structure of the statute supports an objective
> interpretation of the "primarily intended . . . for use" standard.
> Section 857(d) states that drug paraphernalia "includes items
> primarily intended or designed for use in" consuming specified illegal
> drugs, "such as . . . ," followed by a list of 15 items constituting
> *per se* drug paraphernalia. The inclusion of the "primarily intended"
> term along with the "designed for use" term in the introduction to the
> list of per se paraphernalia suggests that at least some of the *per
> se* items could be "primarily intended" for use with illegal drugs
> irrespective of a particular defendant\'s intent \-- that is, as an
> objective matter. Moreover, § 857(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. *Congress did not include among the listed
> factors a defendant's statements about his intent or other factors
> directly establishing subjective intent.* This omission is significant
> in light of the fact that the parallel list contained in the Drug
> Enforcement Administration\'s Model Drug Paraphernalia Act, on which §
> 857 was based, includes among the relevant factors "statements by an
> owner . . . concerning \[the object's\] use" and "direct or
> circumstantial evidence of the intent of an owner . . . to deliver it
> to persons whom he knows, or should reasonably know, intend to use the
> object to facilitate a violation of this Act." *Posters \'N\' Things
> v. United States*, 511 U.S. 513, 519-520 (U.S. 1994)(footnotes
> omitted)\[Italicized emphasis added\].

We find the following language of the Supreme Court, discussing the
requisite knowledge of sellers of paraphernalia, to be instructive in
the instant matter:

> \[W\]e conclude that a defendant must act knowingly in order to be
> liable under § 857. *Requiring that a seller of drug paraphernalia act
> with the "purpose" that the items be used with illegal drugs would be
> inappropriate. The purpose of a seller of drug paraphernalia is to
> sell his product; the seller is indifferent as to whether that product
> ultimately is used in connection with illegal drugs or otherwise*. If
> § 857 required a purpose that the items be used with illegal drugs,
> individuals could avoid liability for selling bongs and cocaine
> freebase kits simply by establishing that they lacked the "conscious
> object" that the items be used with illegal drugs. \[Italicized
> emphasis added.\]
>
> Further, we do not think that the knowledge standard in this context
> requires knowledge on the defendant's part that a particular customer
> actually will use an item of drug paraphernalia with illegal drugs.
> *It is sufficient that the defendant be aware that customers in
> general are likely to use the merchandise with drugs. Therefore, the
> Government must establish that the defendant knew that the items at
> issue are likely to be used with illegal drugs.* *Cf. United States
> Gypsum,* 438 U.S. at 444 (knowledge of "probable consequences"
> sufficient for
>
> conviction). n13[^2] A conviction under § 857(a)(1), then, requires
> the Government to prove that the defendant knowingly made use of an
> interstate conveyance as part of a scheme to sell items that he knew
> were likely to be used with illegal drugs. \[Italicized emphasis
> added.\]
>
> *Finally, although the Government must establish that the defendant
> knew that the items at issue are likely to be used with illegal drugs,
> it need not prove specific knowledge that the items are "drug
> paraphernalia" within the meaning of the statute.* \[Italicized
> emphasis added.\] *Cf. Hamling v. United States*, 418 U.S. 87, 41 L.
> Ed. 2d 590, 94 S. Ct. 2887 (1974) (statute prohibiting mailing of
> obscene materials does not require proof that defendant knew the
> materials at issue met the legal definition of "obscenity"). As in
> *Hamling*, it is sufficient for the Government to show that the
> defendant "knew the character and nature of the materials" with which
> he dealt. *Id*., at 123. *Posters \'N\' Things v. United States*, 511
> U.S. 513, 524-525 (U.S. 1994).

21 U.S.C. § 863 and *Posters \'N\' Things*, *supra*, were discussed and
applied in *United States v. Search of Music City Marketing, Inc.*
(hereinafter "*Music City*"), 212 F.3d 920 (2000). In *Music City*, the
United States Court of Appeals for the Sixth Circuit affirmed the
district court\'s holding that seized merchandise was drug paraphernalia
that as contraband could not be returned to Music City. At issue was
merchandise seized pursuant to a search warrant by U.S. Customs Agents.
Defendant *Music City* "argue\[d\] that the statute is
unconstitutionally vague as applied to the items of inventory seized by
the government in 1998." 212 F.3d 920, 923. In analyzing 21 U.S.C. §
863, the Court stated that:

> As an aid in determining whether particular items are drug
> paraphernalia, parts (d) and (e) provide detail. Part (d) lists items
> that generally qualify as drug paraphernalia "*per se*" and part (e)
> contains a non-exhaustive list of eight factors to consider while
> evaluating the items at issue. *[Id.]{.underline}*
>
> \[S\]ome of Music City's arguments appear to challenge the district
> court\'s factual finding that the pipes and other items at issue
> qualified as drug paraphernalia under the statute. To the extent that
> Music City has made this argument, we affirm the district court. 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 . . . 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. *C.f. 57, 261 Items of Drug Paraphernalia*, 869
> F.2d at 958-59 (evaluating the evidence considered by the district
> court and concluding the court had not erred in concluding that the
> items at issue qualified as drug paraphernalia and thus were properly
> subject to civil forfeiture under the Customs Statute). *United States
> v. Search of Music City Mktg., Inc.*, 212 F.3d 920, 928 (6th Cir.
> Tenn. 2000).

In turning to the article at issue, we consider first the nature of
tobacco pipe smoking, given the exception in 21 U.S.C. § 863(f)(2) for
(paraphrased) items traditionally intended for use with tobacco
products, including any pipe.

> The customs, vocabulary and etiquette that surround pipe smoking
> culture vary across the world and depend both on the people who are
> smoking and the substance being smoked.
>
> For example, in the Western world, tobacco pipe smoking has sometimes
> been seen as genteel or dignified and has given rise to a variety of
> customized accessories and even apparel such as the smoking jacket,
> and the Pipe Smoker of the Year award in the UK. From
> *http://en.wikipedia.org/wiki/Smoking_pipe.*
>
> See also,
> *http://www.notsoboringlife.com/pipe-smoking/guide-to-pipe-smoking/*:
>
> Pipe smoking is really all about relaxation. Since tobacco was
> discovered it's been a favorite pastime of men and now some women find
> themselves smoking a pipe. There are really only 3 ways to smoke
> tobacco: cigarettes, cigars, and the pipe. The tobacco pipe is the
> only option which gives the smoker a lasting sense of pleasure and a
> total state of relaxation.
>
> A pipe is similar to a fountain pen or a fine time piece. It truly is
> a thing of beauty. Some even call a well-crafted pipe a work of art.
> It's a pleasure to hold, inspect, perhaps tell a story about, and
> demands a certain amount of respect.

A web search of the term "tobacco pipe" revealed sites with images
depicting more traditional tobacco pipes made of wood, meerschaum and
the like (see, *e.g*.,
*http://www.smokingpipes.com/pipes/new/tonni-nielsen/index.cfm*). A
similar search of the term "Solopipe®" (see the "Facts" section,
*supra*) produced a significant number of results oriented toward the
ingestion of illicit substances, *viz*. marijuana, leading to the
conclusion that "all-in-one" pipes configured as protestant's are likely
to be used as paraphernalia.

Counsel for protestant objects to our reliance upon the "anecdotal"
evidence gleaned from the internet searches described herein, especially
as they pertain to the use of the Solopipe® as a marijuana pipe, arguing
that it is incumbent upon CBP to review the 17,000 plus search results
containing the word "Solopipe®" before concluding that those internet
"hits" demonstrate use of the article. While we have not reviewed all of
the search results, the initial ten pages of results we have reviewed
demonstrate that the majority of references to the Solopipe® refer to it
as a device for smoking marijuana. Short of actually witnessing the
article in use, we conclude that these references suffice to establish
the use of the Solopipe® as an implement to ingest marijuana.

The following conclusion made 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. HQ H013316 at 4.

While counsel for protestant has provided evidence that the Solopipe® is
advertised on the official website as being intended for use with
tobacco products and that the descriptive materials accompanying the
item which explain or depict its use with tobacco, there is a
significant number of references to use of the article for ingesting
marijuana. Likewise, although evidence has been presented by counsel for
protestant which refer to national and local advertising concerning use
of the Solopipe® with tobacco, given that the article is widely
available for sale on the internet and the references for use found
there are predominantly associated with marijuana use, such
advertisements are undermined by those references. We reach a similar
conclusion with regard to the manner in which the item is displayed for
sale, *viz.* given that the article is widely available for sale on the
internet, and the references for use found there are predominantly
associated with marijuana use, such displays for sale are outweighed by
the references on the JMJL and TCC websites to goods which can only be
described as paraphernalia. Hence, while *arguendo* the Solopipe®
satisfies criteria 1 and 2, 21 U.S.C. § 863(e)(1) and (2), the
implements fail to satisfy the criteria of 21 U.S.C. § 863(e)(3) -- (4),
set forth above.

Counsel for protestant concedes that Rocket Enterprises is not
exclusively engaged in the legitimate tobacco products business;
however, counsel alleges that its exclusive distributor is engaged in
the legitimate tobacco products business. Notwithstanding these
assertions, we conclude from the websites cited above that the exclusive
distributor, TCC/JMJL, is a purveyor of flavored and wired rolling
papers and "blunt" splitters and cutters, goods which, at least in the
case of the wired rolling papers and "blunt" tools, can only be
considered to be paraphernalia. The Solopipe®, offered for sale in
association with other paraphernalia on what is tantamount to an online
"head shop," therefore fails to meet the criteria set forth at 21 U.S.C.
§ 863(e)(5).

Although the Solopipe® appears to be marketed as a single enterprise (21
U.S.C. § 863(e)(6)), and there is some evidence (see the testimonials
referred to in the "Facts" section above) that there is legitimate use
of the product in the community (21 U.S.C. § 863(e)(7)), the evidence of
legitimate use is contradicted by the 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." *Id.*

While the Solopipe® *can* be used to smoke tobacco, it appears to be
actually associated with, virtually (*i.e*., on the internet) displayed,
purchased and likely to be used as paraphernalia to ingest marijuana.

Finally, as protestant concedes, there is no expert testimony concerning
any lawful use of the product (21 U.S.C. § 863(e)(8)).

In contrast to traditional tobacco pipes, the Solopipe® is made of
metal, equipped with screens, is pocket-sized and easily concealable,
characteristics found by the court in *Music City*, *supra*, to be those
of paraphernalia. The retractable cover for the bowl, touted on the
protestant's website as preventing tobacco from falling into the user's
pocket, can also be used to conceal the contents of the bowl or prevent
excess smoke from escaping the pipe. Screens are associated with
marijuana pipes; not tobacco pipes. *Id.* 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, the
protestant's claims that the Solopipe® is intended solely for ingestion
of tobacco notwithstanding, that the implement is "likely to be used
for" (see *Posters \'N\' Things, supra*) the ingestion of marijuana.

**HOLDING:**

Accordingly, pursuant to 21 U.S.C. § 863(a)(3), the importation of the
pipes at issue is unlawful and is prohibited.

The protest should be **DENIED**.

In accordance with Sections IV and VI of the CBP Protest/Petition
Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are
to mail this decision, together with the CBP Form 19, to the Protestant
no later than sixty (60) days from the date of this letter. Any
reliquidation of the entry in accordance with the decision must be
accomplished prior to mailing of the decision.

Sixty (60) days from the date of the decision the Office of
International Trade will make the decision available to CBP personnel,
and to the public on the CBP Home Page on the World Wide Web at
*www.cbp.gov*, by means of the Freedom of Information Act, and other
methods of public distribution.

If you have any questions regarding this determination, please contact
Andrew Langreich of my staff at (202) 572-8776.

Sincerely,

> George Frederick McCray, Chief
>
> OT IPR and Restricted Merchandise Branch

[^1]: See *http://www.answers.com/topic/cannabis-smoking*: Such pipes
    usually have a rush, choke, carb (short for carburetor), or shotgun
    hole which is covered with a finger to draw more air through the
    combusting cannabis as the user inhales, and then uncovered to clear
    the pipe of smoke and slow down the combustion as the user
    finishes." As quoted in HQ 013316, dated March 10, 2008.

[^2]: n13 The knowledge standard that we adopt parallels the standard
    applied by those courts that have based § 857\'s scienter
    requirement on the \"primarily intended\" language of the
    definitional provision. See Mishra, 979 F.2d at 307 (Government must
    prove that defendant \"contemplated, or reasonably expected under
    the circumstances, that the item sold or offered for sale would be
    used with illegal drugs\"); Schneiderman, 968 F.2d at 1567
    (Government must prove that defendant \"knew there was a strong
    probability the items would be so used\"); 57,261 Items of Drug
    Paraphernalia, 869 F.2d at 957 (Government must prove defendant\'s
    \"knowledge that there is a strong probability that the items will
    be used\" with illegal drugs). . .