From Bongs to Dongs

Jacob Sullum | October 16, 2008

This week Mary Beth Buchanan, the U.S. attorney who prosecuted Tommy Chong for selling bongs, filed drug paraphernalia and fraud charges against the makers of the Whizzinator, a fake penis used to deliver clean urine (sold separately) for drug tests. (You may have seen ads for the dodgy dong in High Times, where the manufacturer, Puck Technology of Signal Hill, California, brags that the Whizzinator is so realistic, the picture of it has to be censored.) Puck's president, Gerald Wills, and vice president, Robert D. Catalano, said they plan to plead guilty:

Stanton D. Levenson, who represents the company, previously said that he didn't think the government could make a drug paraphernalia case against his client.

But yesterday, Mr. Levenson said he did research that showed his earlier opinion was wrong.

"We're convinced that the government's theory is correct, and the government has a case," he said. "Obviously, it's serious if somebody is faking drug tests who is then driving a tractor-trailer or a bus or flying an airplane."

Under federal law, drug paraphernalia includes items "primarily intended or designed for use in...concealing...a controlled substance." Each offense is punishable by fines and up to three years in prison. Prosecutors also accuse Wills and Catano of conspiring to defraud the government—specifically, the Substance Abuse and Mental Health Services Administration, which oversees federal workplace drug testing programs. They brought the charges after investigators ordered the Whizzinator, along with a more female-friendly device called Number 1, and had them delivered to western Pennsylvania, where Buchanan is based. In addition to charging Wills and Catalano, Buchanan is seeking to seize Puck's assets, including its domain names.

Despite the predictable public safety angle, it's likely that most of Puck's customers were pot smokers seeking to avoid a positive test result for marijuana consumption off the job, as opposed to employees who operate tractor-trailers, buses, or airplanes while stoned. As I noted in a 2002 reason article, drug testing as it is typically practiced by American employers does not measure impairment and is not meant to do so. Its main purpose is not to prevent accidents but to please the government and to screen out applicants whom employers perceive as undesirable because they violate the drug laws.

[Thanks to Paul Rako for the tip.]