Bongs Away!

How the crusade against drug paraphernalia punishes controversial speech

A few weeks before Barack Obama was elected president, Mary Beth Buchanan, the U.S. attorney for western Pennsylvania, filed criminal charges against the makers of the Whizzinator, a fake penis used to deliver clean urine for drug tests. The strap-on phallus, which comes in assorted “natural, lifelike skin tones,” is connected by a tube to a hidden bladder containing urine (sold separately) that is untainted by marijuana metabolites. According to its manufacturer, Puck Technology of Signal Hill, California, the Whizzinator is so realistic that “we can’t show you the whole thing,” which is why ads for it in publications such as High Times had to be censored, with a marijuana leaf obscuring a photograph of the product in action.

Puck openly sold the Whizzinator and a companion product aimed at women, Number 1, through its website for several years. Its president, Gerald Wills, and vice president, Robert Catalano, did not believe they were violating any laws. But Buchanan argued that Wills and Catalano were selling illegal drug paraphernalia, a federal crime punishable by up to three years in prison and a $250,000 fine. A 1986 amendment to the Controlled Substances Act of 1970 defines drug paraphernalia as any item “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.” After some research (presumably focused on possible interpretations of concealing), Puck’s attorney concluded that Buchanan might have a case, so Wills and Catalano decided to plead guilty.

It was fitting that one of Buchanan’s last prosecutions before the election involved drug paraphernalia disguised as a penis. Taking up causes championed by the Bush administration in response to the demands of social conservatives, she has shown a conspicuous enthusiasm for attacking both paraphernalia and pornography, areas that were of little interest to the Clinton administration and are not likely to be high priorities under President Obama. In addition to taking down the Whizzinator and investigating the manufacturer of Urine Luck,a drug-masking product, Buchanan spearheaded a highly publicized 2003 operation that resulted in drug paraphernalia charges against dozens of defendants, including comic actor Tommy Chong, nabbed for selling bongs. That same year, she charged Robert and Janet Zicari, operators of the porn studio Extreme Associates, with 10 obscenity violations that carry penalties of up to 50 years in prison. After being dismissed by the trial judge and reinstated by an appeals court, the Extreme Associates case is finally scheduled to be heard by a jury in March.

It’s no coincidence that Buchanan and her former bosses, John Ashcroft and Alberto Gonzales, are known for worrying about pornography as well as drug devices. At bottom, both kinds of prosecutions aim to punish offensive speech. Just as pornography implicitly endorses recreational sex, drug paraphernalia implicitly endorses recreational drug use. Both are an affront to the moral values of the officials who choose to crack down on them.

Like obscenity prosecutions, paraphernalia cases often target people for conduct they believed was legal. The law in both areas is fuzzy, and drug paraphernalia, like obscenity, tends to be judged by the “I know it when I see it” method. When they go beyond gut reactions, police and prosecutors often focus on the expression of opinions about drug use or the drug laws: A pipe is more likely to be deemed illegal, for example, if it is sold next to High Times or a “Legalize It” T-shirt. It makes a kind of perverse sense that antiprohibitionist speech can earn you a conviction on paraphernalia charges, since it was the message sent by drug paraphernalia that led governments to ban it in the first place.

“These shops sell a dangerous lie about drugs and drug use,” declared an Immigration and Customs Enforcement agent after raiding five South Florida head shops in March 2006. “It is obvious they want people to think it’s OK to take drugs. This is simply unacceptable.” The message that “it’s OK to take drugs” offends drug warriors in the same way that Hustler offended Jerry Falwell or Janet Jackson’s nipple offended Brent Bozell.

Because so much hinges on people in power taking offense, enforcement of local, state, and federal paraphernalia laws, like enforcement of obscenity laws, is sporadic and spotty. A business can operate openly for years before being identified as a criminal enterprise, even while competitors continue selling the same stuff unmolested. That is especially true nowadays, when drug paraphernalia, like pornography, is readily available online from both domestic and international sources. In both cases, this conspicuous online presence allows prosecutors to invoke the specter of the unregulated Internet, which brings bad influences into every home, while holding businesses based anywhere in the country to the standards of the most conservative communities. At the same time, the Internet complicates the only goal crusaders like Buchanan reasonably can expect to accomplish: not to eliminate the messages that offend them but to make them a little less visible.

‘We Will Eliminate the Demand’

“By enforcing the drug paraphernalia laws,” Buchanan tells me, “we will…eliminate the demand for illegal substances by eliminating those products that are used to ingest and inhale illegal substances.” Yet if the war on drugs seems futile, the war on drug paraphernalia seems doubly so. Even if bongs, vaporizers, and carburetors became more difficult to obtain, it’s hard to believe the result would be fewer marijuana users. After all, there’s no shortage of alternatives for pot smokers to choose from, whether dual-use products such as rolling papers and corncob pipes or equipment improvised from everyday materials such as aluminum foil, soda bottles, and apples (see “You Can Put Your Weed in There,” page 34).

To get a sense of how realistic Buchanan’s expectations are, consider Operation Pipe Dreams, the big paraphernalia crackdown she led in 2003. Together with Operation Headhunter, a companion investigation run by the U.S. attorney in Des Moines, it nabbed more than 50 people, including Chong, who was swept up because of his involvement with Chong Glass, a business started by his son that produced multicolored, hand-blown pipes. The results of these operations could generously be described as mixed.

At the February 2003 press conference where he announced the indictments, then-Attorney General Ashcroft said the government “has taken decisive steps to dismantle the illegal drug paraphernalia industry by attacking their physical, financial, and Internet infrastructures.” John B. Brown, acting head of the Drug Enforcement Administration (DEA), made it sound as if the entire industry had been shut down: “These criminals operate a multimillion-dollar enterprise, selling their paraphernalia in head shops, distributing out of huge warehouses, and using the worldwide web as a worldwide paraphernalia market. With Operations Pipe Dreams and Headhunter, these criminals are out of business.” John P. Walters, director of the Office of National Drug Control Policy, called the arrests “a devastating blow to the drug paraphernalia business.”

Six years after that press conference, the drug paraphernalia business seems to be doing pretty well. Ads for marijuana accessories in High Times, which dipped sharply right after the 2003 arrests, have rebounded, although the mix is noticeably different nowadays (fewer pipes and more vaporizers, which heat dried plant material to release the active ingredients rather than burning it). In Google searches for “bong,” “vaporizer,” and “chillum” (a funnel-shaped pipe), the top results are dominated by online head shops based in California, Canada, the U.K., and the Netherlands that also sell various other kinds of dry and wet pipes, screens, rolling papers, grinders, roach clips, scales, and stash containers.

Similar merchandise is available across the country from brick-and-mortar retailers, which occasionally are raided by the feds or local police, seemingly at random. One telling example was a 2005 federal investigation in Montana, which yielded results similar to those of Operation Pipe Dreams.

Operation Heads Up involved raids on five businesses, including a Missoula store, The Vault, whose owner, David Sil, had gone to considerable lengths to stay within the law. In 1997 Sil wrote a letter to the DEA, informing it of his plans to open a shop selling “smoke delivery systems.” He said he wanted to make sure he was complying with federal law. “If there be any questions as concerns legal compliance,” he wrote, “please let me know.” Sil received no response until May 2005, when DEA agents swooped down on The Vault, seizing his merchandise and records. At that point he had been in business for eight years without any complaints from local, state, or federal authorities. In fact, even though The Vault sold unconventional pipes of the sort commonly used to smoke marijuana, the local prosecutor’s office had told Sil his business was legal.

The DEA saw things differently. So did the U.S. Attorney’s Office in Billings, Montana, which charged Sil with selling drug paraphernalia. Indignant at being accused of a felony after openly running what everyone seemed to think was a legitimate business, Sil refused to plead guilty. At his trial in February 2006, he was able to bring as a witness for the defense Missoula County Chief Deputy County Attorney Mike Sehestedt, who said he did not consider The Vault’s merchandise to be drug paraphernalia because there was no drug residue or other concrete evidence it was used to consume illegal substances. The jury also heard about the measures Sil had taken to obey the law, including signs announcing “All pipes are for tobacco use only” and a statement on the store’s receipts that customers had to sign, promising to use their purchases legally. But Assistant U.S. Attorney Joshua Van de Wetering successfully argued that none of these precautions mattered under federal law.

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  • bob42||

    Now that the government has successfully wasted a few buckets of OUR money putting these guys out of business, I have to wonder if it will bail them out.

    In other words, is Wizzinator "too big to fail?"

  • ||

    The fucking government is bleeding red ink and this is how Mary Beth (what kind of adult women would choose that moniker anyway?) Buchanan wastes money on this effin' nonsense.

    Four more days you useless public parasite.

  • Paul||

    Some things are just bigger than the Constitution.

  • ||

    Some things are just bigger than the Constitution.

    True, when the constitution was written, they didn't have a war on drugs that needed to be fought.

  • ||

    Eliminate the demand for illegal substances by eliminating those products that are used to ingest and inhale illegal substances??

    Bwahahahahahaha!!!

    Start hoarding beer cans, aluminum foil, and apples. It's only a matter of time before they realize that we're SURROUNDED by these evil devices!!

  • ||

    True, when the constitution was written, they didn't have a war on drugs that needed to be fought.


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  • Joel||

    In other words, is Wizzinator "too big to fail?"

    I'm sure they could build one that is.

  • Tyler||

    Sometimes I wonder what goes through the minds of people like Mary Beth Buchanan. Don't they know they're ruining the country?

    Probably something like:

    "Sometimes I wonder what goes through the minds of people like those crazy libertarians. Don't they know they're ruining the country?"

  • ||

    I had two of those exact bongs(pictured with Cheech and Chong) in high school, one green and one purple. US Waterpipes model 202

  • ChrisO||

    Next, they'll ban using forks in the proximity of Coke cans, since the two items could potentially be used together to produce drug paraphernalia.

  • oat willie||

    When a stoner has some cannabis and nothing to smoke it with, he turns into a freakin' MacGuyver and can make anything into a bong or pipe.

  • ||

    with any luck, this bitch buchanan will be standing in the unemployment line very soon. what a cunt.

  • nebby||

    I know Juanita is a troll... but the reason they didn't have a war on drugs is the founding fathers were too busy growing and using cannabis.

  • ||

    This makes me want to open an art gallery full of non-functional bongs, just art pieces, and wait for the DEA to show up.

  • ||

    Damn fine article Jacob. Good to see you back in the saddle.

    There's a paraphernalia story I'd really like to know. What exactly happened to Apogee Bongs. Especially what happened to their bong designs, and are they lost to history. I can't find a thing googling.

    Any of you old enough and fortunate enough to have had, or at least know someone who had, an Apogee Bong will know what I'm talking about. Those things were engineered. They were spill resistant and easy to clean, and had all these features you wouldn't have thought of. And apparently nobody has since. There's plenty of Bongs on the market. You can pay as much as you want, for elaborate contraptions and works of art, or what ever. But I've not seen anything as practical and functional, not even close.

  • Justen||

    Heh, in my 'younger years' we refused to pay the outrageous prices charged for bongs. We made our own with glass bottles, propane torches, dremel tools, silicon tubing, and epoxy. We carved them out of carrots and apples, we built them out of faucets and screened them with faucet screens. We whittled wooden pipes and we built camoflauged pipes out of every conceivable household item. We did all this in a studio apartment roughly the size of a postage stamp and amazingly without a single injury.

    Ultimately I concluded that all that time spent being stoned was a waste of time and money that I could spend doing things I enjoyed even more. I have to thank idiots like Buchanon, though; to the extent that they are successful they'll be encouraging creative thinking and craftsmanship. I hope it further encourages people to think critically on not only how, but why, to use the methods and tools at hand in the most effective and elaborate ways possible to subvert and fight against the opressive antics of the drooling hordes. After all, it's not very difficult.

  • ||

    Its funny that while all this goes on, the totalitarians are in the thrall of the most dibilatating addiction pandemic in this country - and the one that threatens our childrens' future the most - and that addiction is to Uncle Mao's Credit Crack Pipe. The analogy is disturbingly perfect. One of these days our "dealer" (Uncle Mao) is going to do what every stereotype drug-dealer does to the fifth grader after he gets him hooked for free: demand payment to supply the drug. The withdrawl will be epic, and just might kill the addict. We are so stupid as a nation to do this to ourselves to amongst other things, stop the menace of Tommy Chong. We deserve it.

  • geniusiknowit||

    IT'S OKAY TO DO DRUGS.

  • ||

    "The aggressive marketing of the tools and paraphernalia of drug use has been an active affront..."

    I don't think I would define operating a business in 'subterfuge' in order to avoid federal prosecution as "aggressive marketing".

  • Steve Clay||

    So if you make an image on the web of a dotted square with a little scissors icon and put "print and put illegal drugs here", would that be paraphenalia? How about a "Art Now Prohibited" government announcement... Y'all could do a whole web campaign.

  • Walter||

    Well, nothing like flamboyant idiocy to give you a good old fashioned case of the gurgling rage.

    I suppose it would violate libertarian ideals of private property if someone were to get some marijuana seeds and sprinkle them all over Buchy's lawn, then a month later call the cops on her.
    I'm sure it wouldn't violate any ideals of ironic hilarity, though.

  • ||

    The F****** Stupidity Is Endless In Our Lands...

  • ed||

    the crusade against drug paraphernalia punishes controversial speech

    If making and selling a bong is "speech," then yes. What's really being punished is free enterprise, of course. It is a Constitutional issue, more pertinent to the fatal commerce clause (Article I, Section 8) than the 1st Amendment.

  • Erm||

    ed -- the article clearly states that the practical effect of these bans is to allow bongs to be produced and sold, but not, say, with marijuana leaves on then. Or, if they're advertised by a stoner icon, that too is illegal.

    The selling of glass bongs is typically allowed, but it's the messages about drug use that are typically punished.

  • Erm||

    Typically, typically, typically. I had no idea how stupid that last post sounded until I posted and read it back. Should have used preview.

  • me||

    where there are human beings there will be 'drugs,' as there will be spirit, heroism, love, etc. and unfortunately homicide and war. any scientific thesis or dissertation will conclude that. anyone trying to legislate otherwise is a fool as the emperor who wore no clothes. 'we' cops are (some of) the biggest purveyors of drugs - not the other way around. not to mention amongst the biggest users. double standard? indeed.

  • grant aubin||

    What a wonderful, funny, sad and scary article. The fact that Tommy Chong was jailed for his activities is truly frightening. I live in South Africa where our wickedly inept, very often corrupt police force struggle to catch murderers, rapists, thieves and child abusers, so I'm not scared of walking down the street and smoking a spliff. And Jacob Zuma, our President to be, has spent years avoiding his day in court for all sorts of (I suppose I should say alleged) crimes. Thus I don't think we have to worry about zealous, clearly insane prosecutors and mad soccer moms (Peggy Mann and Sarah Palin would make quite a team) with too much time on their hands going after the paraphanalia industry.
    Although pot smoking is hugely popular in my beautiful, fucked up country, there are not many head shops in Port Elizabeth (where I live). However I did notice some very cool (but overpriced) bongs (with marijuana leaves on the wrapping ) for sale at the beachfront flea markets over christmas.
    What I want to tell these zealous idiots mentioned in your article is that banning bongs and chillums isn't going to stop pot smoking. The sooner all drugs are legalised the better. Then perhaps we can start sorting out the problem.
    Thanks for a great, but rather tragic read. The REASON website - where sane minds clearly prevail - rocks. GRANT AUBIN.

  • Bob A||

    During Prohibition, the feds didn't outlaw shot glasses and shakers.

  • Dylan||

    A war on drug paraphernalia. Interesting.

    *takes bong hit*

    Well, it's clearly working.

  • ||

    Great in depth article, thanks

  • ||

    I wonder if Buchanan really thinks it's having an effect. In my pot smoking days, my first pipe was basically a small block of wood with two holes drilled in it. My first bong was made out of pieces I nicked from my chemistry lab. As others have noted, I've smoked out of apples, and pop cans, made pipes out of, well, pipe and small plastic booze bottles and gravity bongs out of gallon milk jugs. It's nicer smoking out of a nice well made bong than out of a pop can, but this has zero effect on drug use. I assume she knows she's putting on a show, but you never know how naive and invested in their chosen vocation these drug warriors are.

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