APRIL 2021

In February 2003, the United States Department of Justice launched its most misguided indirect attack on Cannabis known as “Operation Pipe Dreams.”  At the time, four western states had already enacted legislation permitting the statewide use of medical Cannabis, despite the federal prohibition against it.  And more states were about to do so.  In response, Attorney General John Ashcroft joined forces with US Attorney Mary Beth Buchanan from the Western District of Pennsylvania to indict fifty-five individuals for selling hand-blown glass water pipes across state lines in violation of federal law. Defendants would argue that federal law enforcement officials were looking for a high-profile and outspoken defendant in which to make an example. Those arrested and charged included comedy-icon-turned-entrepreneur Tommy Chong and his son.

In the end, in exchange for an agreement not to prosecute his son or wife, Chong agreed to plead guilty to one conspiracy count.  He served the longest sentence from Operation Pipe Dreams.  He was sentenced to nine months in a minimum-security correctional facility in California, he paid a fine of $20,000, and he agreed to forfeit $103,000 in earnings.  It was the harshest sentence to come out of this strange chapter in the federal government’s failed War on Drugs.

Eighteen years later, it is hard not to see Attorney General Ashcroft and conservatives at the time as trying to hold back the ocean with a spoon.  Cannabis and the glass industry have won the culture wars by attrition.  Sure, the use and possession of Cannabis remains illegal at the federal level under the Controlled Substances Act.  But the Cannabis genie is out of the bottle, and she ain’t going back in.  Thirty-five states, four out of five permanently inhabited U.S. territories, and the District of Columbia have all enacted medical Cannabis regulations in direct contravention of federal law.  Fourteen states, the District of Columbia, the Northern Mariana Islands, and Guam have legalized Cannabis for adult use without restriction or license, while another 16 states and the U.S. Virgin Islands have decriminalized its use altogether.  And most recently, during this pandemic, Cannabis has been deemed an “essential business” which is part of Maryland’s Critical Health Infrastructure.

As Maryland lawmakers consider two marijuana legalization bills this session, a new poll shows that the State’s residents are strongly on board with the policy change.  Two-thirds (67 percent) of Marylanders now back legalizing cannabis, according to a Goucher College survey published earlier this week.  In fact, support for legalizing cannabis in Maryland has risen in the two years since the last time Goucher College asked about the issue in 2019, when 57 percent of residents backed the idea.   More dramatically, in 2013, just 51 percent of Marylanders supported legalization –a 15 percentage point opinion swing in favor of legalization in just seven years.

In light of the nationwide normalization of Cannabis as a medicine and a recreational adult substance, what then do we do with the paraphernalia laws?  Why do we still continue with the legal fiction that bongs are “water pipes” or that pipes are “for tobacco use only?”  Why do these laws continue to exist if they are only a misplaced remnant of a different time?  The answer has to be rooted in fear.

Maryland’s prohibition against paraphernalia provides that “a person may not use or possess with intent to use drug paraphernalia to . . . ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance.”  Both Marijuana and its psychoactive derivatives are Schedule I drugs under the Controlled Substances Act.  However, in 2016 after enacting the framework for Medical Cannabis in Maryland, the Maryland General Assembly specifically added an affirmative defense for the possession of “Marijuana.”  That is correct.  I said it, “You cannot be charged with the possession of paraphernalia if the Controlled Dangerous Substance (CDS) you were allegedly in possession of was “Marijuana” and your intent was to use the paraphernalia (i.e., the water pipe) to ingest or inhale the Marijuana.”  Sounds ridiculous?  Wait, it gets more preposterous.

While there is an affirmative defense to possession of paraphernalia if you are intending to use it to ingest Marijuana, there is no legal protection for the store that supposedly sold you it.  That is why a head shop, glass shop, or vape shop has to kick you out if you start talking about any drugs in the store.  If intend to use the pipe to ingest or inhale a CDS that is not Marijuana, including concentrates and any Cannabis product in its non-botanical form, then the store has committed a crime in selling you the glass pipe.  Confused?  You should be.  Not only do the laws against paraphernalia–like glass water pipes–make no sense, they legitimately harm the dialogue that happens between a knowledgeable shop sales person and a prospective customer.  In that way, the paraphernalia laws harm everyone.  It restricts the free-flow of accurate information and creates an adversarial relationship between sales person and customer where secrecy is encouraged and store owners are incentivized to learn nothing about their clients.

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