UNBREAKABLE

“For Tobacco Use Only.”  That is the fig leaf supposedly covering the stores who sell glass water pipes (aka bongs), bangers, bowls, and other assorted paraphernalia that are used to ingest or inhale cannabis and other drugs.  Sold in high end glass galleries, head shops, smoke shops, and even the local convenience stores, these products are available in large cities and small towns across this country.  But this “disclaimer” is really a legal fiction that reminds us of the many political and law enforcement priorities that have ebbed and flowed through the glass industry.  For example, it wasn’t too long ago, 2003 to be exact, that 55 manufacturers of glass water pipes were charged and given jail time for making the very products featured in this issue.

In February 2003, the United States Justice Department launched its first large scale frontal assault on the glass water pipe/glass pipe industry out of the United States Attorney’s Office for the Western District of Pennsylvania.  Code named “Operation Pipe Dreams,” hundreds of businesses and homes were raided in an investigation resulting in the indictment of 27 individuals, including Tommy Chong (famous for his role in the comedy duo of Cheech and Chong).  The investigation purportedly cost over $12 million to conduct, and consumed the resources of over 2,000 law enforcement personnel.  Fifty-four of the fifty-five individuals charged in the Operation were sentenced to a fine and home confinement.  Chong was the only individual to face jail time.  He was sentenced to nine months in a minimum-security Taft Correctional Institution in Taft, California, a fine of $20,000, and agreement to forfeit $103,000.  It was the harshest sentence to come out of this chapter in the federal government’s, “War on Drugs.”

Looking back on Operation Pipe Dreams, it is hard to see what greater good was achieved.  Did the high-profile prosecution of Tommy Chong, his family, and his son’s glass business “Nice Dreams” change any minds?  The answer would have to be a resounding, “No.”  In fact, cultural norms seem to have made the prosecution even more out-of-step with the times.  As States have begun to legalize Cannabis for adult use and medical use, States have put a low priority on the enforcement of paraphernalia laws.  In fact, the law that was used to prosecute Operation Pipe Dreams is still the federal law of the land.  And it is still federally illegal to sell or offer for sale drug paraphernalia, including water pipes, and to use the mail, phone, internet or any other interstate facility to transport it.  Yet, an average Marylander can go onto the Internet any day of the week and purchase a glass water pipe and have it mailed to them.

Is there a difference between a water pipe in a glass gallery, head shop or convenience store and a water pipe located in your home?  Strangely, the answer is maybe.  Under federal law the term drug paraphernalia means “any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” But there is no federal prohibition against personal possession of paraphernalia.  Those laws are left to the States.

Maryland Criminal Law provides a list of Thirteen (13) factors that police and courts can use to determine if an object is prohibited paraphernalia, and hence a crime.  Specifically, Maryland Law 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.”  But in 2016, after enacting the laws laying down the framework for Medical Cannabis in Maryland, the Maryland General Assembly specifically added an affirmative defense for the possession of “Marijuana.”  That is correct.  You heard it here.  You cannot be charged with the possession of paraphernalia if the Controlled Dangerous Substance (CDS) you were allegedly in possession of is 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 worse.

While there is an affirmative defense to possession of a glass water pipe if you are intending to use it to ingest Marijuana, there is no legal protection for the store that is supposedly selling you the glass water pipe if they know you 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.  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.  It is even worse when one considers that a Medical Cannabis patient in Maryland may be misusing a product or purchasing one they do not need.  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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