§863 — Title 21 Food and Drugs | U.S. Code

Summary

Illegal to sell, ship between states, import, or export items meant mainly to make, hide, or help use illegal drugs. People who break this can go to jail for up to 3 years and may be fined under federal criminal law (Title 18). Items involved in a conviction can be taken away. Those items go to the Administrator of General Services, who can order them destroyed or let federal, state, or local authorities use them for law enforcement or education. “Drug paraphernalia” means any gear, product, or material mainly made to make, prepare, inject, smoke, inhale, or otherwise put illegal drugs into the body. Examples include pipes, bongs (water pipes), carburetion devices, masks, roach clips, very small spoons, chillums, ice pipes, wired cigarette papers, and cocaine freebase kits. To decide if something is paraphernalia, officials can look at instructions, ads, how it’s sold or displayed, who sells it, sales patterns, lawful uses, and expert testimony. The rule does not apply to people allowed by law to make or sell such items or to ordinary tobacco products sold in the normal course of business.

Title 21, §863

Food and Drugs — Source: USLM XML via OLRC

(a)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.

(b)Anyone convicted of an offense under subsection (a) of this section shall be imprisoned for not more than three years and fined under title 18.

(c)Any drug paraphernalia involved in any violation of subsection (a) of this section shall be subject to seizure and forfeiture upon the conviction of a person for such violation. Any such paraphernalia shall be delivered to the Administrator of General Services, General Services Administration, who may order such paraphernalia destroyed or may authorize its use for law enforcement or educational purposes by Federal, State, or local authorities.

(d)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,11 So in original. Probably should be “marihuana,”. 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)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)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.

Notes & Related Subsidiaries

Editorial Notes

Codification The text of section 857(b) to (f) of this title, which was transferred to subsecs. (b) to (f) of this section by Pub. L. 101–647, § 2401(b), was based on Pub. L. 99–570, title I, § 1822(b)–(f), Oct. 27, 1986, 100 Stat. 3207–51; Pub. L. 100–690, title VI, § 6485, Nov. 18, 1988, 102 Stat. 4384.

Amendments

2000—Subsec. (d). Pub. L. 106–310 inserted “methamphetamine,” after “PCP,” in introductory provisions. 1990—Subsec. (b). Pub. L. 101–647, § 2401(c)(1), substituted “fined under title 18” for “fined not more than $100,000”. Pub. L. 101–647, § 2401(b), redesignated subsec. (b) of section 857 of this title as subsec. (b) of this section. See Codification note above. Subsecs. (c) to (e). Pub. L. 101–647, § 2401(b), redesignated subsecs. (c) to (e) of section 857 of this title as subsecs. (c) to (e) of this section. See Codification note above. Subsec. (f). Pub. L. 101–647, § 2401(c)(2), made technical amendment to reference to “This section” to correct reference to corresponding provision of original act. Pub. L. 101–647, § 2401(b), redesignated subsec. (f) of section 857 of this title as subsec. (f) of this section. See Codification note above.

§863 Drug paraphernalia

Summary

Title 21, §863

Notes & Related Subsidiaries

Editorial Notes

Amendments

Citations & Metadata