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CITE

    21 USC Sec. 863                                             01/05/2009

EXPCITE

    TITLE 21 - FOOD AND DRUGS
    CHAPTER 13 - DRUG ABUSE PREVENTION AND CONTROL
    SUBCHAPTER I - CONTROL AND ENFORCEMENT
    Part D - Offenses and Penalties

HEAD

    Sec. 863. Drug paraphernalia

STATUTE

    (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.
    (b) Penalties
      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) Seizure and forfeiture
      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) "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,(!1)
    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.

SOURCE

    (Pub. L. 91-513, title II, Sec. 422, as added and amended Pub. L.
    101-647, title XXIV, Sec. 2401(a)-(c), Nov. 29, 1990, 104 Stat.
    4858, 4859; Pub. L. 106-310, div. B, title XXXVI, Sec. 3614, Oct.
    17, 2000, 114 Stat. 1230.)

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, Sec. 2401(b), was based on Pub. L. 99-570, title I, Sec.
    1822(b)-(f), Oct. 27, 1986, 100 Stat. 3207-51; Pub. L. 100-690,
    title VI, Sec. 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, Sec. 2401(c)(1), substituted
    "fined under title 18" for "fined not more than $100,000".
      Pub. L. 101-647, Sec. 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, Sec. 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, Sec. 2401(c)(2), made technical
    amendment to reference to "This section" to correct reference to
    corresponding provision of original act.
      Pub. L. 101-647, Sec. 2401(b), redesignated subsec. (f) of
    section 857 of this title as subsec. (f) of this section. See
    Codification note above.

FOOTNOTE

    (!1) So in original. Probably should be "marihuana,".
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