This Is Not a Pot Pipe

For manufacturers and distributors of drug paraphernalia, criminal liability under state law generally depends on knowledge.


This article is part of Reason's special Burn After Reading issue, where we offer how-tos, personal stories, and guides for all kinds of activities that can and do happen at the borders of legally permissible behavior. Subscribe Now to get future issues of Reason magazine delivered to your mailbox!

If you take an apple from your fruit bowl, you have committed no crime. If you take a knife and carve a right-angled channel through the apple, starting at the top and ending on the side, you are still in the clear.

But the moment you think about covering the top hole with perforated aluminum foil to hold a nugget of marijuana that you will light while sucking on the side hole, you have transformed that innocent apple into contraband. Possessing it could earn you penalties ranging from a fine (up to $500 in Texas, where I live) to a jail sentence (as long as a year in Pennsylvania, where I grew up).

In both Texas and Pennsylvania, drug paraphernalia is defined by intent. A hookah is legal as long as you plan to smoke tobacco in it, while a briar pipe is illegal if you plan to smoke marijuana in it.

For manufacturers and distributors of drug paraphernalia, criminal liability under state law generally depends on knowledge: Did the seller know (or should he have known) his merchandise would be used to consume illegal drugs? Those "for tobacco use only" signs in head shops are meant to maintain a pose of ignorance.

That pose will not help merchants much under federal law, which according to the Supreme Court relies on an "objective" definition of paraphernalia, based on "a product's likely use," as opposed to a "subjective" definition, based on "the defendant's state of mind." Online sellers of equipment that could conceivably be used to consume cannabis nevertheless prefer caginess to candor.

VaporNation, based in Torrance, California, describes its main product line as "personal devices that heat materials at temperatures just below the point of combustion, extracting the flavors, aromas, and effects of herbs and waxes with much less smoke." The company, which in addition to vaporizers carries grinders, containers, glassware, and water pipes, does not specify what sort of "herbs and waxes" it has in mind, which is probably for the best. Although marijuana accessories, like marijuana itself, are legal in California, they remain illegal in most states, and selling them is still a federal felony punishable by up to three years in prison.

Since state-licensed businesses selling actual marijuana so far have gone mostly unmolested by federal prosecutors, the chances of legal trouble for VaporNation may seem small. Then again, the company ships its products to customers throughout the country, which is not the sort of thing a marijuana merchant who wanted to avoid federal attention would do.

If VaporNation ever attracted such attention, the vague description of its products' intended use probably would not save it. But a little-noticed clause in the federal paraphernalia statute might. The law says "this section shall not apply to…any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items."

Steve Fox, a lawyer who directs the National Cannabis Industry Association's Policy Council, thinks that language should cover businesses that sell marijuana accessories in compliance with state law. U.S. Customs and Border Protection (CBP), which last year seized a shipment of lockable storage cases ordered by Stashlogix, a Boulder, Colorado, company that sells "thoughtful, secure and discreet stash bags" for "medicine, tobacco & other stuff," seems to disagree.

In a letter to Stashlogix, CBP explained that the cases would have been perfectly legal without the carbon pouches that accompanied them. As far as the agency was concerned, those odor-absorbing inserts gave off the unmistakable smell of illegality.

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  1. The government is willing to establish needle exchanges, but pipes and vaporizers are illegal. Chronic pain sufferers are cut off while illegal drugs are easier than ever to get. It’s almost as if these policies are based on politics and hysteria rather than science or history.

    1. im shocked … shocked, i say … by such a suggestion. Big (orange) brother knows best.

      1. The policies mswen described are all implemented in areas run by the party beginning with the letter ‘D’. Try again.

        1. They’re federal policies, and one of the state policies mentioned is Texas.

  2. That picture is of the kind of pipes you could buy pre-legalization, and I guess still can in states that haven’t legalized yet. Glass is so much better and healthier to use. The components of those metal pipes are parts for lighting fixtures and lamps.

  3. That’s my kind of pipe. I can stick in my pocket, it’s hard to break and is easy to clean. Some say it’s not as good as glass but so what. I hope I die before I get old.

  4. federal law, which according to the Supreme Court relies on an “objective” definition of paraphernalia, based on “a product’s likely use,” as opposed to a “subjective” definition, based on “the defendant’s state of mind.”

    This is why Justices get paid the big bucks.

    1. Of course SCOTUS can’t be too smart – the ones who are their employees, the hands and feet of the “law”, which is not to say Justice, are idiots in their own right, and laws must be communicated to them. SCOTUS routinely invents sub-categories for the purpose of either expanding liberties, or reducing them. They have proved that law is incapable of preserving a plain meaning. In other words, it is not possible to place upon paper an intention that shall survive the courts.

      For example, we have freedom of the press now just means you are free to BUY a press, and operate it, well, in certain ways, and not others, depending upon whether or not the boomer judges are feeling you’re doing something “valuable.” If they just don’t feel like your speech is valuable, you don’t have the right to speak. It is, therefore, only a right upon the permission of the boomer nannies who oppress us.

  5. You moved back from Israel to Tex?

  6. The feds are well aware that the Controlled Substances Act is only constitutional when used to prevent smuggling of prohibited intoxicants into a state that also prohibits them or the manufacture of those state-prohibited intoxicants within the state.

    The feds are hoping that the rest of us forget that the 9th, 10th and 21st amendments exist, as well as the fact that until the 18th amendment was ratified, the feds had zero authority to prohibit ANY intoxicant, and had exactly as much authority under the supremacy and commerce clauses then as they do today.

    They have good reason not to go after legal dispensaries in a legalization state, because as soon as someone raises the above points in a federal court challenge against the Controlled Substances Act, that federal court will strike down the Act.

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