Everything But the Greens

[dropcap class=”kp-dropcap”]W[/dropcap]e all know what cannabis looks like. The legality or illegality of it, for that matter, is constantly a hot topic. But what about selling or possessing all of the cannabis “paraphernalia,” a fancy collection of ancillary cannabis products, humidor boxes, rolling papers, bongs, pipes and vaporizers . . . are those legal? The simple answer is yes, probably, but beware:

What Does Paraphernalia Look Like?

In this cloudy area of law, the only clear answer is that paraphernalia is illegal. Under Federal law, U.S. Code Title 21 §863 says any item primarily used as a conduit for the intake of illegal drugs is paraphernalia. In California, Health & Safety Code §11364.5 states that “paraphernalia” refers to a variety of items that are used for illegally smoking, or consuming controlled substances or narcotic drugs. It then follows that it is illegal to sell drug paraphernalia, use any shipping method to move drug paraphernalia  or to import/export drug paraphernalia.

Tommy Chong’s “Chong Bong”

Case in point, the infamous Tommy Chong’s “Chong Bong” case. In 2003, the federal government started “Operation Pipe Dreams,” a national investigation of drug paraphernalia distributors. Amongst the close to 60 people arrested for distribution was Tommy Chong, the perpetually stoned movie icon who later went on to brand and sell “Chong Bongs” through his company, Nice Dreams (also the name of his iconic movies where he develops a strain of cannabis that slowly morphs smokers into reptiles).

It was Chong’s appearance in drug-related movies, and iconic status as a glamorizing the illegal use of cannabis that was most relevant to his “paraphernalia” business. However, this legal issue was never actually litigated on its merits in trial. Chong pleaded to the charges without the court making a legal determination that “Chong Bongs” were in fact paraphernalia as defined under the law. Though we don’t know what would have happened had this case gone through a true legal test, Chong did serve time in federal prison and his story remains a cautionary tale for those interested in mass marketing of cannabis ancillary products.

How Is “Paraphernalia” Sold Lawfully?

Anything defined as drug paraphernalia cannot legally be sold. The question then remains, what is paraphernalia? There is no list of material items or actual products that can be referenced under the law. However, items shown as intended for tobacco use do not violate federal law. In essence, online retailers and head shops alike are not actually selling “drug paraphernalia.” They are selling water pipes, glass tobacco novelty pipes and little, plastic jewelry bags. These businesses may legally sell these items for the same reason that it was perfectly legal to buy and sell wine glasses and beer mugs during America’s Alcohol Prohibition. You could use wine glasses for grape juice, you could use beer mugs for root beer floats and you can use a smoking device for tobacco.

However, as in the Chong case, defining a product as drug paraphernalia includes taking a look at how these items are displayed for sale, what descriptive materials or instructions accompany the items and what type of business is selling the items. Hence the strict rules banning references to illegal drugs by employees, marketing material, advertisements and customers.

This is also why Google, Facebook and other social media companies generally avoid selling ad space to any businesses in the cannabis industry. Even (seemingly progressive) tech companies take a hard stance on cannabis marketing. And they make no exceptions for states that have legalized recreational cannabis.

The Bottom Line on Bongs

The bottom line is that cannabis products and accessories exist on a sliding spectrum in which the same product can be determined to be paraphernalia or not based on how the product is promoted, who promotes it, its name, etc. The more the product is surrounded by cannabis, pushed towards cannabis use, and promoted as a cannabis product, the more it could fit the definition of paraphernalia . . . and the closer it is to being classified as illegal. Although distribution inside cannabis friendly states may be safe, crossing state lines may need some crafty strategizing.