518
Opinion of the Court
ernment's position that § 857(d) establishes objective standards for determining what constitutes drug paraphernalia.
Section 857(d) identifies two categories of drug paraphernalia: items "primarily intended . . . for use" with controlled substances and items "designed for use" with such substances. This Court's decision in Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U. S. 489, 500 (1982), governs the "designed for use" prong of § 857(d). In that case, the Court considered an ordinance requiring a license for the sale of items "designed or marketed for use with illegal cannabis or drugs," and concluded that the alternative "designed . . . for use" standard referred to "the design of the manufacturer, not the intent of the retailer or customer." Id., at 501. An item is "designed for use," this Court explained, if it "is principally used with illegal drugs by virtue of its objective features, i. e., features designed by the manufacturer." Ibid.
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. Schneider-man, 968 F. 2d 1564, 1567 (CA2 1992), cert. denied, 507 U. S. 921 (1993). Accordingly, the "designed for use" element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
The "primarily intended . . . for use" language of § 857(d) presents a more difficult problem. The language might be understood to refer to the state of mind of the defendant (here, the seller), and thus to require an intent on the part of the defendant that the items at issue be used with drugs. Some Courts of Appeals have adopted this construction, see
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