Bongs Away!

How the crusade against drug paraphernalia punishes controversial speech

Jacob Sullum from the February 2009 issue

(Page 4 of 4)

Federal prosecutors were not alone in resenting Tommy Chong’s high profile. In 2002, shortly after being busted on federal paraphernalia charges in Florida, the pipe manufacturer Chris Hill complained to the Drug War Chronicle that he had been unfairly singled out. Describing the Contemporary Tobacco Trade Association’s annual show in Las Vegas, he said, “They’ve got Tommy fucking Chong selling bongs there.…I boycotted that show because I thought it was too close to the edge.”

Hill prided himself on running his company, Chills, conservatively, eschewing the more flamboyant head shops in favor of tobacconists. “We were a company that was pushing paraphernalia for legitimate uses,” he told High Times in 2004, after serving a 14-month sentence in a federal prison for selling drug paraphernalia. “Obviously we know people are smoking pot with it, but we strived to stay in compliance.” He again contrasted Chills with Chong Glass, saying Tommy Chong “was asking for it.” Chong being who he was, he couldn’t have avoided the cannabis connotations of his business even if he had wanted to, but neither was there ever anyreal question that pot smokers were Chills’ target market.

Still, Hill’s bitterness is not hard to understand. While serving his sentence, he recalled, he was “leased out” to do grounds maintenance at the Pensacola Naval Air Station. “Every day,” he said, “on the way to work and on the way back to prison, I had to pass at least one head shop and two billboards for other head shops selling the same pipes I went to prison for selling. They’re all over the country. So is it illegal? I guess so. I went to federal prison for it.”

Yet he also was honored for it by the National Republican Congressional Committee, which gave him a business award in 2001. Two years before that, Inc. recognized Chills as one the country’s 500 fastest-growing businesses. Hill went to sleep the night before his arrest a respected entrepreneur, and he woke up an accused felon, based on the same actions that had won him accolades.

Vault owner David Sil experienced a similar transformation when his Missoula store was raided in the 2005 Operation Heads Up. So did Steve Andriakos, whose hippie accessory emporium in Bozeman, The Grateful Shed, had been around for 15 years. Like Sil, Andriakos insisted on a trial, after which the judge dismissed the charge against him, finding there was insufficient evidence for the case to go to the jury. Andriakos’ lawyer, Chuck Watson, notes that The Grateful Shed, which had two cases of smoking accessories that accounted for a small share of its business, was burglarized in January 2006. “A bunch of this so-called paraphernalia was stolen,” he says. The local police “caught the guy who did it and told [Andriakos’ partner] to come get the merchandise. They didn’t want it. He put it right back in the store.” Watson adds that “the county attorney told [Sil] that what he was doing was not illegal.…If you get the government’s permission to do something, how many governments’ permission do you have to get?”

At least two. Susan Halonen, a DEA public information officer in Denver, says Sil and Andriakos were able to operate “under the radar” because their communities were “tolerant” and Montana’s paraphernalia law has been interpreted to require some sort of “drug nexus,” such as residue or a nearby stash. As Sil and Andriakos discovered, the DEA’s reading of federal law does not leave the same wiggle room. Asked why only a handful of Montana merchants were targeted even though others were selling the same stuff, Halonen says the DEA, which did not have any presence in western Montana until 2002, has limited manpower. “They can’t target everybody,” she says, “even though they’d like to.”

‘Nobody Said Anything’

Sil and Andriakos’ complaint is a common refrain among manufacturers and retailers hit with paraphernalia charges: No one ever told us this was a problem. “If anyone had ever said, ‘You’re breaking the law; you need to stop,’ I would have called my attorney and then I would have stopped,” Chris Hill told the Sarasota Herald-Tribune after his arrest in 2002. “But it’s not that kind of party. They want to shoot first and ask questions later.” Even after Hill’s prosecution, many people in the industry were not up to speed on the federal paraphernalia ban.

The government’s response, of course, is that ignorance of the law is no excuse, that anyone who gets into this business should realize the risks he’s taking. “If you violate the law, you have to accept the consequences,” says Buchanan. And if you haven’t heard of the law, “that’s your problem.”

But suddenly being charged with selling illegal paraphernalia after years of apparent legitimacy still strikes many people as unfair, especially given the vagueness of state and federal law. “All of a sudden, a shop that has been operating in full view, a member of the chamber of commerce, all that good stuff, the next day they’re a pariah within their community,” says Allen St. Pierre. After the federal arrests in 2003, he recalls, NORML’s phone rang off the hook with calls from worried manufacturers and retailers. “Those people were totally dumbfounded,” he says. He sums up the typical response this way: “This is outrageous. How can this possibly be? I’ve been making these products for years, and nobody said anything to me.”

That story is especially plausible in parts of the country that are relatively tolerant of the drug culture’s accoutrement and symbols. “Certainly in California people assume that things are a lot more lax than they really are,” says Bill Rittenberg, who notes that retailers in places like New Orleans and Key West also do not seem terribly worried about running afoul of paraphernalia laws. “They’re in certain areas, and they’re not in other areas—just like pornography.” But as with pornography, prosecutors can lure distributors to sell their merchandise in places where jurors are less likely to take it lightly. “We play by the rules, we don’t break the law, and we don’t do business in Des Moines,” a Chong Glass spokesman told the Drug War Chronicle a year before the DEA raided the Gardena, California, business. Unfortunately for Tommy Chong, they did do business on Buchanan’s turf, western Pennsylvania, where DEA agents set up a fake head shop that ordered his pipes.

The celebrity sting attracted considerable media attention, prompting Chris Hill to complain in his High Times interview that “nobody cared [about paraphernalia laws] until Tommy Chong got arrested.” But six years later, it’s hard to discern the impact of Chong’s bust or the other arrests generated by Operations Pipe Dreams and Headhunter, which the DEA says put 42 paraphernalia dealers and manufacturers out of business.

“If there were any individuals out there who were unaware of the law,” says Buchanan, “they’re now aware of the law.” She says the arrests also raised awareness among parents and educators, and she claims “there are less illegal products available.” But to people with more intimate knowledge of the paraphernalia market, it doesn’t look that way. “I hate to say it because I don’t want to poke a gorilla in the eye, but what happened in 2003 was cosmetic,” says Rick Cusick, the former High Times editor. “It didn’t eliminate any industry, and it didn’t slow down a whole lot.…They made everybody go underground a little bit for a little while, and then it started to creep back again.” Vaughn, who helps clients set up smoke shops that will pass legal muster by meeting with local law enforcement officials and asking them to clear the merchandise ahead of time, agrees the intimidating effect of the arrests has dissipated. “I would say that the impact today based on what happened in February 2003 is minimal,” he says.

Stephen Dillon, an Indianapolis defense attorney with extensive experience in paraphernalia cases (and chairman of NORML's board of directors), perceives some subtle changes. “They probably won’t advertise the same way they did before Pipe Dreams,” he says. “The smart ones won’t. And they won’t have items that are per se paraphernalia, only designed for one purpose.…They don’t put marijuana leaves on the bongs anymore.”

This sort of adjustment, akin to slapping black plastic covers on dirty magazines at the newsstand, is the most that the on-again, offagain crusade against drug paraphernalia is likely to accomplish: a somewhat more discreet version of a business that will continue to operate in one form or another as long as people are interested in smoking pot. “The aggressivemarketing of the tools and paraphernalia of drug use has been an active affront to the efforts of parents, educators, and community leaders who are trying to help young people stay away from drugs,” drug czar John Walters complained in a statement issued the day of Ashcroft’s Operation Pipe Dreams press conference. “Today’s actions send a clear message to those who would poison our children.” The message: Get those marijuana leaves off your bongs.

Senior Editor Jacob Sullum is the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin).

Comments

bob42|1.16.09 @ 12:30PM|#

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?"

|1.16.09 @ 12:37PM|#

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|1.16.09 @ 12:50PM|#

Some things are just bigger than the Constitution.

|1.16.09 @ 12:55PM|#

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.

|1.16.09 @ 12:59PM|#

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!!

|1.16.09 @ 1:11PM|#

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

Be still my throbbing heart.

Untouchable hands along a winding stroll,
has many an eve possessed my thoughts,
melding my heart and soul
in soft temper, lovingly wrought.

To wit, some notion begs to be,
binding these images and senses.
But fleeting truths cannot see,
beyond old craggy fences.

The watery windows of a rending departure,
haunt the memory of an angel's cry,
which now descend in silent torture,
it's timbre, forever etched in mind's eye.

An unquenchable thirst in a desert filled,
burning in the heart that is smitten.
An unanswered question lingers still,
along the winding stroll forbidden.

E-mail me my internet love. We are destined to walk through life hand in hand.

Joel|1.16.09 @ 1:14PM|#

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

I'm sure they could build one that is.

Tyler|1.16.09 @ 1:17PM|#

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?"

|1.16.09 @ 1:47PM|#

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|1.16.09 @ 2:37PM|#

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|1.16.09 @ 2:48PM|#

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.

|1.16.09 @ 2:50PM|#

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

nebby|1.16.09 @ 3:03PM|#

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.

|1.16.09 @ 3:54PM|#

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.

|1.16.09 @ 4:04PM|#

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|1.16.09 @ 5:59PM|#

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.

|1.16.09 @ 6:10PM|#

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|1.16.09 @ 6:17PM|#

IT'S OKAY TO DO DRUGS.

|1.16.09 @ 8:53PM|#

"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|1.17.09 @ 12:20AM|#

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|1.17.09 @ 2:15AM|#

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.

|1.17.09 @ 7:34AM|#

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

ed|1.17.09 @ 11:31AM|#

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|1.17.09 @ 4:05PM|#

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|1.17.09 @ 4:06PM|#

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|1.17.09 @ 5:21PM|#

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|1.19.09 @ 8:59AM|#

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|1.19.09 @ 10:13AM|#

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

Dylan|1.19.09 @ 12:04PM|#

A war on drug paraphernalia. Interesting.

*takes bong hit*

Well, it's clearly working.

|1.19.09 @ 3:41PM|#

Great in depth article, thanks

|1.21.09 @ 8:40AM|#

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.