NOTE: this article appeared as a column in the Michigan Cannabis Industries Report’s October 2018 issue.
The Paraphernalia Conundrum
Although cannabis use is becoming more acceptable, paraphernalia still has hurdles to clear.
By Malcolm MacKinnon
It’s no secret that the federal government has waged a cruel, unjust assault on cannabis users for decades. In 1971, President Richard Nixon declared drug abuse as “Public Enemy Number One.” Ten years later, President Ronald Reagan upped the ante by declaring a “war on drugs” causing the prison population to explode.
Statistics bear out what we’ve known for years: the war on drugs has primarily preyed upon our community. In 2016, there were over 1.5 million drug arrests in America; over a third were for cannabis and 9 out of 10 were for simple possession. In fact, since 1996, nearly half of all drug arrests were for marijuana offenses.
Why have the Feds focused on cannabis? One of the overlooked, but simple reasons is the lack of danger posed to law enforcement. Generally, growers and cannabis users don’t resist. There’s no gunplay. So cannabis busts are useful for fattening up police stats in order to get more funding to conduct more raids and seize more property via civil forfeiture laws. To the shame of Michigan, forfeiture laws have been exploited for years in order to generate profit for police, while eliminating due process for those whose assets are seized.
Ancillary industries surrounding cannabis have been targeted as well. In 1989, Operation Green Merchant was launched, a nationwide investigation, which sought to eliminate High Times and Sinsemilla Tips magazines by destroying their advertising bases. The government actually subpoenaed the records of UPS seeking anyone who had purchased horticulture equipment from companies who had advertised in the publications. Scores of growers were busted when the Feds showed up their doorsteps to take a look at what they were growing under those lights. High Times survived, of course, but Sinsemilla Tips didn’t.
In 2003, the Feds tried again, this time focusing on the paraphernalia companies that advertised in High Times. Operations Headhunter and Operation Pipe Dream were launched simultaneously and resulted in the arrests of 55 people nationwide who were charged with conducting illegal interstate commerce to transport drug paraphernalia. (Most notably, Tommy Chong was arrested in the sweep and was the only individual to serve actual jail time—nine months.)
As we all know, if you choose to smoke cannabis you need a delivery device. Rolling papers are probably the safest choice, because you’re probably unaware that the colorful glass pipe you own or that bong sitting on your coffee table are illegal.
In 1994, the U.S. Supreme Court ruled Posters ‘N’ Things, Ltd. v. United States that “drug paraphernalia” was any equipment “primarily intended or designed for use” with illegal drugs. In other words, it doesn’t matter whether you’re smoking tobacco or some alternative mixture in your bowl. It’s the pipe itself that has intent—not you.
It’s a strange law. Obviously, cannabis can be smoked in a conventional pipe. Grandpa’s elegant, hand-carved wood specimen would do just fine. But Grandpa’s pipe isn’t illegal. Nor is the popular “emergency” pipe, fashioned by coring an apple. But the cornucopia of colorful glass, clay, ceramic and stone pipes found in head shops can still put you in a legal mess, especially if you’re the store owner.
You have to appreciate the tenacity of the cannabis community. Despite historic horrific government harassment and persecution, the cannabis industry has maintained its inexorable momentum and is flourishing as laws prohibiting the plant fall by the wayside.
The producers of paraphernalia deserve equal admiration. Despite the 1994 Supreme Court ruling, the industry expanded wildly, especially with the popularity of glass smokeware. And when Operations Headhunter and Pipe Dreams were introduced in an attempt to squash the industry, it simply went underground—albeit briefly. With the wide passage of legalization initiatives and a growing population of those requiring a smoking vessel, pipe makers are busier than ever.
However, the proprietors of retail shops who stock a variety of accessories intended for cannabis use still face legal uncertainty, as do the producers themselves. The laws prohibiting the shipment of paraphernalia across state lines still exist and the Supreme Court ruling that defines the purpose of a pipe still stands. But, in truth, the most immediate concern for pipe sellers usually resides in the community in which they operate.
For over 30 years, Robert Vaugn, a Nashville, TN-based attorney, has specialized in defending those charged with drug paraphernalia at both the state and federal levels. He recommends exercising extreme due diligence and transparency when opening a so-called “head shop.”
Be sure that your locality is open to the idea of the store. Furthermore, Vaugn advises inviting local law enforcement to inspect the establishment. As further protection, he suggests photographing the entire shop in order to document what the police observed so that no discrepancies in your inventory exist in the event of a raid.
As cannabis becomes more mainstream and using the plant becomes less demonized, new business opportunities abound. All the same, public cannabis use remains forbidden, cannabis-themed events are highly scrutinized and commercial operations that are founded to serve cannabis consumers are often viewed unfavorably to the point of prosecution.
Malcolm MacKinnon is the former editor of HIGH TIMES. His work appears monthly in the Michigan Cannabis Industries Report. See more at MalcolmMacKinon.com