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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