Bongs of Mass Inhalation
Raids in Canada, new US state laws, and a New Hampshire Supreme Court case have paraphernalia and smoking accessories back in the news
On March 6, 2007, three police officers from the Calgary Police Service entered the Bongs & Such store at 4829 Macleod Trail SW in Calgary, Alberta and presented a search warrant for all the glass, wood metal pipes, bongs and metal tubing on the store’s shelves. Over the next four and a half hours they went through the inventory and bagged, according to a witness, “almost everything in the store.”
At the same time on the same day, other officers were serving similar warrants on three other stores in Calgary, two in the 100 block of 7th Avenue SW and another on the 100 block of 8th Avenue, SW. According to a press release provided by the City of Calgary, the police seized “approximately 3,000 marijuana and crack cocaine pipes and hundreds of other pieces of drug paraphernalia…from the four businesses.” Additionally, police found eight pounds of marijuana, just over four ounces of hash, and 45 grams of cannabis oil at one location.
Three of the raids were carried out in an orderly fashion, but one of the stores was reportedly “totally trashed” by police, witnesses told Cannabis Culture. According to Calgary Police Service Drug Unit Staff Sergeant Monty Sparrow, “This was probably one of the few investigations targeting these types of businesses in recent memory.” Calgary Sun newspaper crime reporter Sarah Kennedy said they were probably the first paraphernalia busts in Calgary in “at least ten years.”
The official reason for the busts, said Sergeant Sparrow, was police had been given tips that the four stores were selling their products “with the knowledge that they were going to be used for illicit drug use.” Sparrow noted that under Canada’s Random Virtue law the police could not normally raid or confiscate the items from stores, even if they suspected the items could be considered paraphernalia. “The thing with the tips we got was that people told us that if you went into these stores and asked for a crack pipe they’d sell you one, which makes them illicit items intended for drug use.”
Interestingly, Bongs & Such, which has been in business for several years, has no crack pipes for sale and has been meticulously clean about the way it does business. Their pipes generally run in the CDN $35 (US $30) range and their bongs mostly go for CDN $80 (US $70) and up. They also carry a full line of vaporizers, but do not carry crack pipes. Several people in the industry in Calgary noted they thought Bongs & Such was probably included in the raids because the owners of the two Bongs & Such locations (only one was raided) are outspoken political activists. They’ve recently held auctions to raise funds for Marc Emery’s extradition defense and have been bold enough to take out full-page ads in the Calgary Sun advertising their wares. When one owner of Bongs & Such, Bill Hillis, was asked by Global TV if the store condoned pot smoking after an ad ran in August 2005, he said, “You bet!”
The Calgary Sun’s Sarah Kennedy thinks that while activism might have played a part in Bongs and Such being targeted, the primary reason for the raids — as they’re so rare — was likely instigated by a local acting police inspector aiming at becoming a permanent police inspector, and several other officers going for promotion where the busts occurred. “It’s police pro-motion time,” Kennedy remarked.
Because no charges have been filed against the owners of Bongs & Such or the other stores involved, none were available for comment as Cannabis Culture went to press. Charges or not, it’s likely the merchandise from Bongs & Such won’t be returned to their owners without a serious fight, and that means they are out upwards of $40,000 — Ouch. That’s punishment few stores can experience more than once and survive. Though the Canadian police bother few stores with regard to smoking accessories, the Canadian paraphernalia laws are actually quite draconian.
According to the Drug Paraphernalia and Literature sections of the Canadian Criminal Code — a uniform code enforced across Canada, as opposed to the US model of a Federal Criminal Code being supplemented by individual State Criminal Codes — paraphernalia is defined as “an instrument for illicit drug use”. The Code goes on to say that means “anything designed primarily or intended under the circumstances for consuming, or to facilitate the consumption of, an illicit drug.” Penalties for being found guilty of breaking the paraphernalia law can reach a $100,000 fine, six months in jail, or both, on a first offence, and a $300,000 fine, a year in jail, or both, on subsequent offences.
According to Sergeant Sparrow, such harsh penalties are not likely to be meted out. “The stores, if found guilty, will probably get a fine and lose seized items. On top of that, their licenses will be in jeopardy. But that all depends on a conviction and, as of now, none of the store’s owners or employees have even been charged.”
Temporarily, the busts sent shock waves through the smoking accessory community. But, when no further raids occurred, things quickly quieted down. One smoking accessory shop owner in Calgary who asked that neither he nor his store be identified noted that while he did not anticipate any further pipe seizures, the busts “are a good reminder for people to keep things on the up and up. There’s not much enforcement for these things up here in Canada but you still have to remember to be clean and keep your employees sharp about what they can talk about. If someone comes in asking for something illegal, you just have to refuse to sell to them and then ask them to leave. Period.”
Meanwhile, in the USA…
While the bong busts in Calgary are a rarity in Canada, it’s a different story in the US where fanatical anti-drug crusaders frequently put the heat to local and state politicians over the issue. The last several months alone have seen a number of developments in the anti-paraphernalia movement around the US.
In January 2007, Philadelphia — home of the Liberty Bell and the Philly Blunt — banned tobacco cigar wraps, or “blunts”! Retail stores were ordered to remove all “blunts and other drug paraphernalia” from their stock. The hometown Major League baseball team, the Philadelphia Phillies, is in fact named after the Philly cigar, and nowadays, the Philly blunt. At the time the bill was passed, Philadelphia police detective Jerry Rocks was quoted in the local papers as saying, “It’s not just a blunt bill… it’s an anti-drug bill.” (And anti-baseball history too!) Utilizing the Drug Enforcement Administration’s definition of paraphernalia, the law prohibited selling
any items “where the seller knows, or under the circumstances reasonably should know” that they would be
used to “convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation” of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act.
Cigar manufacturers im-mediately challenged the legality of the law. On March 7, 2007, Judge Gary S. Glazer overturned the law before it had even been enforced. Judge Glazer ruled that the Philadelphia city ordinance was in conflict with Pennsylvania state law and noted in his ruling that the ordinance subjected “legitimate businesses selling legal dual-use products to the arbitrary enforcement of the City of Philadelphia Department of Licenses and inspections.” The Pennsylvania state law on paraphernalia requires that authorities prove the intent of the seller, buyer or user was to use the item illegally — which the local law would have circumvented. So unless and until Philadelphia challenges Glazer’s ruling to a higher court (and there is no indication at present the city will do that) sheaves of sweet blunt tobacco are back on the shelves of stores throughout the City of Brotherly Love.
A lawmaker in Minnesota has also been trying recently to get bongs and blunts banned. State Senator Amy Koch (R-Buffalo) has introduced a bill that would make it illegal to sell or possess, for any reason, anything generally categorized as drug paraphernalia. In particular she is trying to outlaw bongs, pipes, dugouts, glass pipes, one-hitters/bats or any other smoking tools traditionally used with marijuana, including pipes
made of “ivory, onyx, glass, metal, stone or any other material,” with the exception of hookahs. The bill would make all such sales or possession a misdemeanor, which carries a penalty of up to 90 days in jail and a $1,000 fine.
Koch claims her bill that was introduced last year and did not become law is being reintroduced to “protect children.” Essentially what the bill does is remove any “intent to use in an illegal manner” from existing Minnesota paraphernalia law, which is patterned after the federal DEA paraphernalia law. Koch was quoted in a recent Pioneer Press story as saying, “We recognize that you can smoke pot out of a pop can, an apple, a light bulb… we’re going after the bongs.”
Robert Vaughn, perhaps the best known paraphernalia defense attorney in the US — one who has litigated paraphernalia cases since the early 1980s in 35 states — categorized the Koch bill this way: “Let me say that if history repeats itself this will be another Minnesota attempt to make paraphernalia illegal that dies in a committee somewhere. They’ve introduced bills like this up there for several years and nothing ever comes of them. Most of these anti-paraphernalia laws are variations of the DEA model that came out in 1979. That makes items used to facilitate drug use illegal, but the real question is the intent of the persons involved in the transaction.” In other words, does the seller know the buyer is going to use them illegally? Which, Vaughn notes, is difficult to prove and time-consuming on the part of police — as demonstrated by the months that cops spent preparing for the Calgary raids.
Robert Vaughn says Kansas City, Missouri is also trying to tighten up its statutes. “That one has the NAACP (National Association for the Advancement of Colored People) supporting it, but I don’t know why. I do know that two years ago the President of the local chapter of the NAACP in Tampa, Florida was trying to tighten up the paraphernalia laws there,” and wound up in hot (bong) water himself! “He’d gone into a store that was selling these things and created enough of a stir to be thrown out, and then he broke a number of items and, finally, was charged with vandalism.”
In Michigan, home of liberal city Ann Arbor — site of the annual Hash Bash — a new law regarding paraphernalia went into effect on March 20, 2007. The old law, part of the Michigan Health Code, exempted from the classification of paraphernalia all “equipment, a product, or material which may be used in the preparation or smoking of tobacco or smoking herbs other than a controlled substance.” The new law simply removes that line from the old law, instantly making hundreds of items that were legal March 19 — such as vaporizers — illegal today.
Greg Francisco, a former US Coast Guard officer in the Drug Interdiction section and now member of Law Enforcement Against Prohibition (LEAP) and a member of the board of Michigan NORML, wrote about the recent change in the law. “This law puts a new burden on struggling Michigan businesses, at a time when our state economy is foundering. And a burden upon the state budget as well. It casts a shadow over legitimate, tax-paying businesses that will now be forced to make a ‘best guess’ and then hope for the best. It cuts off a source of sales tax revenue to the state. It will further tie up over-stretched law enforcement personnel who will now be forced to add ‘Bong Patrol’ to their duties. Clogged courts dockets will be further bogged down trying to rule on the legitimacy and context of various otherwise ordinary objects like cigars, corncobs and cigarette papers. What it won’t do is stop anyone who wants to from smoking cannabis, hashish or crocodile dung. Apples, soda cans, tin foil, a straight pin, a car cigarette lighter. These common items are just a very short list of things that can be, and regularly are, used to consume cannabis. Can we expect a brownie-mix law next?”
However, Michigan is unique among US states in that law enforcement can’t just simply seize paraphernalia. A 48-hour notice must be given declaring that certain items are considered drug paraphernalia and will be seized — and, in all probability, a fine levied — if they are not removed within that time frame. The Michigan law change stemmed from a paraphernalia case that occurred in 2003 when Presque Isle prosecutor Richard Steiger served the 48-hour notice on a store called Concert Connection, owned by Wayne Gauthier.
Gauthier asked for a court ruling on the legality of the items Steiger called drug paraphernalia, noting that all of them could be used with tobacco. The court ruled in his favor, and when the state appealed to a higher court, that court too ruled in Gauthier’s favor. But according to Greg Francisco, “The Court of Appeals then went on to issue an appeal of their own, to wit: that the State Legislature plug the loophole that allowed Gauthier to stay in business.”
Despite the new law, says Robert Vaughn, Michigan continues to be relatively decent regarding paraphernalia because of the 48-hour rule. “My clients universally say ‘Hell, why didn’t they just tell me not to sell those things?’ rather than having their stores ransacked without notice. So Michigan is unique that way. It gives you a chance to change what you’re doing to comply with the law.”
Whether the new law will hold up remains to be seen. Executive Director of NORML Allen St. Pierre says, “These bills are so broadly worded that it’s difficult to interpret. I’m sure the constitutionality of the new Michigan law will be challenged by the first person with the financial means to do so.” One state paraphernalia law currently in the court system is New Hampshire’s, a state St. Pierre describes as “schizophrenic” when it comes to paraphernalia. The case started in 2002 when local police in Dover, New Hampshire raided an established store named Smoke Signals Pipe and Tobacco Shop. “One day the store,” says St. Pierre, “which had been in business for years without any problem, was suddenly busted for selling what they had always sold. The police just began taking things, calling them paraphernalia.”
According to Mark Sisti, the attorney defending Smoke Signals, “the police seized just about every pipe and piece of glassware they had. But the court returned hundreds of pieces of glassware it said were legal merchandise. So we photographed everything that was returned, making a record of what the court said was legal. But then three or four weeks later some police officer got a search warrant and came in and seized the same things that the court just gave back.” At the trial the store’s owner was found not guilty of selling paraphernalia, so Sisti moved for a return of the seized property. “And the judge, after a finding of not guilty, says he wouldn’t return the items because they were all drug paraphernalia!”
Mark Sisti appealed the ruling and is now before the State Supreme Court. Arguments have already been heard, and he’s hoping a decision is made in the next several months. The Court could choose only to look at the narrow scope of the particulars in the Smoke Signals case, but Sisti is hoping they take a look at the broader issue of the state paraphernalia laws as well. “I think the Supreme Court will have to go to the big issue on this one. This is an issue that will be returned to over and over again if they don’t settle it now.”
An interesting note on the case is that Smoke Signals is reported to have the finest selection of cigars in Dover and is “regularly frequented by cigar smoking policemen,” according to Sisti. “I think the fact that the store is also selling what they consider to be paraphernalia is just driving them nuts.”
The Hemp Candy Situation
Though not paraphernalia, also falling under the legal microscope is hemp candy. On March 20 this year, the Georgia House of Representatives overwhelmingly passed a bill that bans the sale of “cannabis-flavored” hemp candy to minors. A similar bill making its way through the Georgia State Senate, Bill 511, would ban the candies altogether, make the first offence of “any person knowingly to sell, deliver, distribute, or display for sale… any marijuana or hemp flavored candy” a misdemeanor, and make a second offence a felony punishable by a mandatory minimum of one year in jail and a fine of at least $1,000. The maximum penalty for a second offence would be five years in prison and a $5,000 fine.
In announcing Bill 511, State Senator Vincent Fort remarked, “Should a nine-year-old be able to go into a store and get a bag of chips, a soda pop, and some dope candy? That’s ridiculous!” State House Representative Judy Manning, sponsor of the very similar Georgia House bill, recently told the press that “this kind of product is being taken to concerts like the old ice cream pop… it’s quite detrimental to our children.”
Though hemp candies have been made and occasionally marketed for nearly a century, what’s causing the ruckus in Georgia are the lollipops and gummy candies manufactured by Chronic Candy of Riverside, California, and made using legal hemp essential oils with no THC. Chronic Candy was started by Tony Van Pelt in January 2000, and he decided to go edgy with advertising by giving the line of marijuana-flavored lollipops names like The Chronic, The Buzz, and White Widow. The company also produces green and purple gummy candy that go by the names Sticky Icky Buds and Purple Kush, respectively.
Van Pelt and his associates insist the candy was never meant to be marketed to minors. J. Kron has been with the company since its inception and told Cannabis Culture, “We don’t even allow minors into our store. We don’t
advertise this to kids. The only people doing that are the legislators who keep talking about it in the newspapers. I know I don’t want to see a seven-year-old sucking on our lollipops. I don’t even allow it for the minors in my own family. These are adult novelties.”
Van Pelt, whose company also produces clothing, cosmetics and accessories made from hemp and organic cotton, calls the Georgia attempt at a statewide ban “outrageous,” adding “the thing of it is they’re not just banning candy, they’re banning the name, which makes this a freedom of speech issue because there is nothing illegal about the products themselves.” A look at the law being considered indicates he’s right.
Portions of the Senate Agriculture and Consumer Affairs Committee’s amended version of
Senate Bill 511 notes that “Federal, state and local governments spend millions of dollars annually on programs educating people about the hazards of drugs, and the marketing of marijuana or hemp flavored candy could have an adverse impact upon these programs. The sale of marijuana-flavored candy is a marketing ploy that
perpetuates an un-healthy culture and should not be permitted in the State of Georgia. Mari-juana or hemp flavored candy falling into the hands of un-suspecting persons may serve as a gateway to future use of marijuana and other drugs.” (There is no word yet on any legal action being taken against the new energy drink Cocaine, which promises a rush with “no crash.” The Red Bull knockoff is being sold in eight US states, including New York, California and Texas.)
If passed, the ban on all sales of such candies would be the first statewide prohibition in the US. The cities of Chicago, Illinois and Suffolk County, New York have banned them locally, and several states have limited their sale to adults only. Among the few Georgia legislators who don’t back the ban is Representative Mark Hatfield, who thinks the legislature is overstepping its bounds. “How will a court determine whether or not the
taste of something will fit within the parameters of the bill?” he asked.
Keith Stroup, founder of NORML, has seen laws outlawing hemp products and paraphernalia since NORML’s in--ception. “I think these laws have always been an ignorant approach to policy making. If legislators want to outlaw marijuana I understand it — I don’t like it, but I understand it — then that’s one thing. But to outlaw pipes that might be used with marijuana, or candy that has a marijuana name, well, that seems wrongheaded to me. But there is no anti-drug proposal that is so outrageous and idiotic that it won’t have a majority of elected officials voting for it. I assume those officials go home at night and feel warm and fuzzy and thinking they’ve made America and Americans safe from drugs. But in reality all they’ve done is make criminals out of people who are otherwise law-abiding citizens. It’s like making hammers illegal because someone used one to hit a person’s head. It’s intellectually offensive. It indicates they’re more interested in making headlines and getting reelected than they are in making smart policies.”
For a state-by-state review of marijuana and paraphernalia laws, see the NORML web site (www.NORML.org). States with no paraphernalia law will utilize the federal DEA paraphernalia laws as guidelines.
