Legal Scholars: What makes a piece of smoking apparatus illegal?

[randwill]

The feds seized pipes and roach clips from some “head shops” in North Carolina the other day. Just what makes a piece of smoking apparatus illegal? Pot can be smoked in the same pipes and papers as tobacco, so why is a pipe with a flower decal on it not legal?

If I had the money, I’d open up a shop called Marijuana Smoking Supplies. I would decorate it like a head shop but sell only the exact same items the tobacco store in the mall carries. Would I be prosecuted? Can’t I name my store anything I want to?

[NTChrist]

IANAL, but I think it may have something to do with disclaimers. I know my local head shop has about a million disclaimers on the wall, and won’t sell anything to you if you even mention illegal drugs.

I believe if you are selling the aforementioned pipe with a flower on it without stating that you intend for it to be used with legal smoking substances, you may be in trouble.

Otherwise, I agree with you. There is nothing quantifiably different between your pipe w/flower and one without.

If I am right about my disclaimer theory, then your idea for your shop’s name is a bad one.

[Cliffy]

I believe NTChrist has got it wrong here. I don’t think there is a very well-delineated border between pot apparatus and legal smoking tools, but the Justice Department has recently begun prosecuting head shops much more aggressively than they had been under previous Attorneys General.

–Cliffy

[Kalhoun]

Tommy Chong is doing time RIGHT NOW for operating an on-line head shop. I don’t get it. Unless he was selling Wacky Tabaccy with the pipes, I don’t see what the hard-on is.

My son’s dad had a native American funeral ceremony. Part of the ceremony was a peace-pipe filled with tobacco that is a direct descendent of Sitting Bull’s tobacco (I’m not sure I believe that, but it’s irrelevant). The guy that presided over the ceremony gave the pipe to my kid. Well, he went right out and smoked pot out of the pipe and the fuzz caught up with him and confiscated the pipe FOREVER because of the resin in it. It was his own fault, but jeez…

[Ravenman]

@randwill

If I had the money, I’d open up a shop called Marijuana Smoking Supplies. I would decorate it like a head shop but sell only the exact same items the tobacco store in the mall carries. Would I be prosecuted? Can’t I name my store anything I want to?

IANAL, but I’m willing to bet good money that you would be prosecuted.

See the DEA website linked below, which has a link at the bottom to Federal law on the subject. The definition of “paraphernalia” seems broad enough that how one markets an item can be more important than the actual utility of that item. Thus, in my reading, a corn-cob pipe that is labeled “Mr. Wacky’s Pot Smoking Fun Machine” would be illegal, but the “General MacArthur Memorial Tobacco Smoking Corn Cob Pipe” would not be.

http://www.usdoj.gov/dea/concern/paraphernaliafact.html

[Gfactor]

@Ravenman

IANAL, but I’m willing to bet good money that you would be prosecuted.

See the DEA website linked below, which has a link at the bottom to Federal law on the subject. The definition of “paraphernalia” seems broad enough that how one markets an item can be more important than the actual utility of that item. Thus, in my reading, a corn-cob pipe that is labeled “Mr. Wacky’s Pot Smoking Fun Machine” would be illegal, but the “General MacArthur Memorial Tobacco Smoking Corn Cob Pipe” would not be.

You got it. Take a look at the statutory definition:

(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, (FOOTNOTE 1) cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as -

(FOOTNOTE 1) So in original. Probably should be ‘‘marihuana,’’.

(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.

So they can go behind what the seller says and look, for example, at advertising in High Times or on the web. And they can also produce an expert witness who can testify about what bongs are really for, but much of the parahernalia-ness comes from what you say about it.

There is a great shop in Columbus that I refer to as the “Don’t say Bong” shop. You walk in, and everywhere you look there are signs telling you not to say any of the words on a list. This explains why. Thanks Raven