Bongs Away!

How the Crusade Against Drug Paraphernalia Punishes Controversial Speech

A few weeks before Barack Obama was elected president, Mary Beth
Buchanan, the U.S. attorney for western Pennsylvania, filed criminal
charges against the makers of the Whizzinator, a fake penis used to
deliver clean urine for drug tests. The strap-on phallus, which comes
in assorted "natural, lifelike skin tones," is connected by a tube to
a hidden bladder containing urine (sold separately) that is untainted
by marijuana metabolites. According to its manufacturer, Puck
Technology of Signal Hill, California, the Whizzinator is so
realistic that "we can't show you the whole thing," which is why ads
for it in publications such as High Times had to be censored, with a
marijuana leaf obscuring a photograph of the product in action.

Puck openly sold the Whizzinator and a companion product aimed at
women, Number 1, through its website for several years. Its
president, Gerald Wills, and vice president, Robert Catalano, did not
believe they were violating any laws. But Buchanan argued that Wills
and Catalano were selling illegal drug paraphernalia, a federal crime
punishable by up to three years in prison and a $250,000 fine. A 1986
amendment to the Controlled Substances Act of 1970 defines drug
paraphernalia as any item "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." After some
research (presumably focused on possible interpretations of
concealing), Puck's attorney concluded that Buchanan might have a
case, so Wills and Catalano decided to plead guilty.

It was fitting that one of Buchanan's last prosecutions before the
election involved drug paraphernalia disguised as a penis. Taking up
causes championed by the Bush administration in response to the
demands of social conservatives, she has shown a conspicuous
enthusiasm for attacking both paraphernalia and pornography, areas
that were of little interest to the Clinton administration and are
not likely to be high priorities under President Obama. In addition
to taking down the Whizzinator and investigating the manufacturer of
Urine Luck,a drug-masking product, Buchanan spearheaded a highly
publicized 2003 operation that resulted in drug paraphernalia charges
against dozens of defendants, including comic actor Tommy Chong,
nabbed for selling bongs. That same year, she charged Robert and
Janet Zicari, operators of the porn studio Extreme Associates, with
10 obscenity violations that carry penalties of up to 50 years in
prison. After being dismissed by the trial judge and reinstated by an
appeals court, the Extreme Associates case is finally scheduled to be
heard by a jury in March.

It's no coincidence that Buchanan and her former bosses, John
Ashcroft and Alberto Gonzales, are known for worrying about
pornography as well as drug devices. At bottom, both kinds of
prosecutions aim to punish offensive speech. Just as pornography
implicitly endorses recreational sex, drug paraphernalia implicitly
endorses recreational drug use. Both are an affront to the moral
values of the officials who choose to crack down on them.

Like obscenity prosecutions, paraphernalia cases often target people
for conduct they believed was legal. The law in both areas is fuzzy,
and drug paraphernalia, like obscenity, tends to be judged by the "I
know it when I see it" method. When they go beyond gut reactions,
police and prosecutors often focus on the expression of opinions
about drug use or the drug laws: A pipe is more likely to be deemed
illegal, for example, if it is sold next to High Times or a "Legalize
It" T-shirt. It makes a kind of perverse sense that
antiprohibitionist speech can earn you a conviction on paraphernalia
charges, since it was the message sent by drug paraphernalia that led
governments to ban it in the first place.

"These shops sell a dangerous lie about drugs and drug use," declared
an Immigration and Customs Enforcement agent after raiding five South
Florida head shops in March 2006. "It is obvious they want people to
think it's OK to take drugs. This is simply unacceptable." The
message that "it's OK to take drugs" offends drug warriors in the
same way that Hustler offended Jerry Falwell or Janet Jackson's
nipple offended Brent Bozell.

Because so much hinges on people in power taking offense, enforcement
of local, state, and federal paraphernalia laws, like enforcement of
obscenity laws, is sporadic and spotty. A business can operate openly
for years before being identified as a criminal enterprise, even
while competitors continue selling the same stuff unmolested. That is
especially true nowadays, when drug paraphernalia, like pornography,
is readily available online from both domestic and international
sources. In both cases, this conspicuous online presence allows
prosecutors to invoke the specter of the unregulated Internet, which
brings bad influences into every home, while holding businesses based
anywhere in the country to the standards of the most conservative
communities. At the same time, the Internet complicates the only goal
crusaders like Buchanan reasonably can expect to accomplish: not to
eliminate the messages that offend them but to make them a little less visible.

'We Will Eliminate the Demand'

"By enforcing the drug paraphernalia laws," Buchanan tells me, "we
will...eliminate the demand for illegal substances by eliminating
those products that are used to ingest and inhale illegal
substances." Yet if the war on drugs seems futile, the war on drug
paraphernalia seems doubly so. Even if bongs, vaporizers, and
carburetors became more difficult to obtain, it's hard to believe the
result would be fewer marijuana users. After all, there's no shortage
of alternatives for pot smokers to choose from, whether dual-fuse
products such as rolling papers and corncob pipes or equipment
improvised from everyday materials such as aluminum foil, soda
bottles, and apples (see "You Can Put Your Weed in There," page 34).

To get a sense of how realistic Buchanan's expectations are, consider
Operation Pipe Dreams, the big paraphernalia crackdown she led in
2003. Together with Operation Headhunter, a companion investigation
run by the U.S. attorney in Des Moines, it nabbed more than 50
people, including Chong, who was swept up because of his involvement
with Chong Glass, a business started by his son that produced
multicolored, hand-blown pipes. The results of these operations could
generously be described as mixed.

At the February 2003 press conference where he announced the
indictments, then-Attorney General Ashcroft said the government "has
taken decisive steps to dismantle the illegal drug paraphernalia
industry by attacking their physical, financial, and Internet
infrastructures." John B. Brown, acting head of the Drug Enforcement
Administration (DEA), made it sound as if the entire industry had
been shut down: "These criminals operate a multimillion-dollar
enterprise, selling their paraphernalia in head shops, distributing
out of huge warehouses, and using the worldwide web as a worldwide
paraphernalia market. With Operations Pipe Dreams and Headhunter,
these criminals are out of business." John P. Walters, director of
the Office of National Drug Control Policy, called the arrests "a
devastating blow to the drug paraphernalia business."

Six years after that press conference, the drug paraphernalia
business seems to be doing pretty well. Ads for marijuana accessories
in High Times, which dipped sharply right after the 2003 arrests,
have rebounded, although the mix is noticeably different nowadays
(fewer pipes and more vaporizers, which heat dried plant material to
release the active ingredients rather than burning it). In Google
searches for "bong," "vaporizer," and "chillum" (a funnel-shaped
pipe), the top results are dominated by online head shops based in
California, Canada, the U.K., and the Netherlands that also sell
various other kinds of dry and wet pipes, screens, rolling papers,
grinders, roach clips, scales, and stash containers.

Similar merchandise is available across the country from
brick-and-mortar retailers, which occasionally are raided by the feds
or local police, seemingly at random. One telling example was a 2005
federal investigation in Montana, which yielded results similar to
those of Operation Pipe Dreams.

Operation Heads Up involved raids on five businesses, including a
Missoula store, The Vault, whose owner, David Sil, had gone to
considerable lengths to stay within the law. In 1997 Sil wrote a
letter to the DEA, informing it of his plans to open a shop selling
"smoke delivery systems." He said he wanted to make sure he was
complying with federal law. "If there be any questions as concerns
legal compliance," he wrote, "please let me know." Sil received no
response until May 2005, when DEA agents swooped down on The Vault,
seizing his merchandise and records. At that point he had been in
business for eight years without any complaints from local, state, or
federal authorities. In fact, even though The Vault sold
unconventional pipes of the sort commonly used to smoke marijuana,
the local prosecutor's office had told Sil his business was legal.

The DEA saw things differently. So did the U.S. Attorney's Office in
Billings, Montana, which charged Sil with selling drug paraphernalia.
Indignant at being accused of a felony after openly running what
everyone seemed to think was a legitimate business, Sil refused to
plead guilty. At his trial in February 2006, he was able to bring as
a witness for the defense Missoula County Chief Deputy County
Attorney Mike Sehestedt, who said he did not consider The Vault's
merchandise to be drug paraphernalia because there was no drug
residue or other concrete evidence it was used to consume illegal
substances. The jury also heard about the measures Sil had taken to
obey the law, including signs announcing "All pipes are for tobacco
use only" and a statement on the store's receipts that customers had
to sign, promising to use their purchases legally. But Assistant U.S.
Attorney Joshua Van de Wetering successfully argued that none of
these precautions mattered under federal law.

At his sentencing in June 2006, Sil emphasized that he had not
behaved like a criminal. "There was nothing clandestine about this
operation," he noted. "Nobody was hiding out in the bushes. This
stuff is sold over the Internet." Presiding U.S. District Judge Don
Molloy expressed dismay at the case, suggesting that such
prosecutions of legal-seeming enterprises undermine respect for the
law. He sentenced the then-61-year-old retailer to six months of home
arrest and two years of probation. "This case will have all the
effectiveness of a single solitary snowflake falling on the bosom of
the Potomac," Molloy said. "I don't think cases like this deter
anyone." U.S. Attorney Bill Mercer took a different view. "I am
confident," he declared in a press release, "this prosecution will
deter others from engaging in the commercial distribution of drug
paraphernalia in Montana."

Molloy's prediction proved to be more accurate. Operation Heads Up
was supposed to put Montana retailers on notice that disclaimers and
discretion were no longer enough to avoid prosecution for selling
drug paraphernalia. To some extent, it worked: At least two Montana
shops pulled glass pipes from their shelves after Sil's conviction.
But others continued selling them, including Zoo Town Glass, a
hand-blown pipe shop that took over the very same space once occupied
by Sil's store.

'Do-Drug Messages'

The roots of the campaign against drug paraphernalia lie in the
anti-drug activism of parents who were alarmed by adolescent pot
smoking in the late 1970s, the peak period for marijuana use by
American teenagers. Those anxieties were echoed and amplified by
anti-pot polemicists such as Peggy Mann, who between 1979 and 1981
published three widely read Reader's Digest articles warning parents
about the dangers of marijuana. Mann, whose work won an award from
the National Federation of Parents for Drug-Free Youth, expanded
those articles into the 1985 book Marijuana Alert, described in the
foreword by first lady Nancy Reagan as "a true story about a drug
that is taking America captive." In Marijuana Alert, Mann identified
paraphernalia sales as a major source of "do-drug messages," along
with peer pressure and rock music. She complained that "drug
paraphernalia may be purchased by teenagers not only in headshops,
but also in numerous record shops, boutiques, smoke shops, card
shops, and novelty shops in posh suburban shopping malls....In some
areas, full-fledged headshops can be found only a few blocks away
from the local high school."

As with pornography, it was the in-your-face aspect of paraphernalia
sales, especially in locations frequented by minors, that really
upset people like Mann. Allen St. Pierre, executive director of the
National Organization for the Reform of Marijuana Laws (NORML),
recalls that "up until the late 1970s you could literally win a bong
at the county fair." Since selling drug paraphernalia was legal in
most places, store owners did not post disclaimers or eject
indiscreet customers. "There was no need to be self-conscious about
it," recalls Jon Gettman, a former NORML director who managed a shop
called Earthworks in the Dupont Circle area of Washington, D.C.,
during the '70s. Its slogan: "Everything You Need but the Weed."

Such openness was intolerable to drug warriors, who saw themselves as
fighting the libertinism of the '60s counterculture. "We're telling
young people it's against the law to use drugs yet we're providing
them with things to violate the law," a Louisiana district attorney
complained to UPI in 1981. UPI also quoted Harry Myers, the DEA
attorney who in 1979 had written a model anti-paraphernalia act for
states to adopt. "You can put drug education programs on TV until
they outnumber cat food commercials," Myers said. "But you can't do
that and still have legal [paraphernalia] sales. It sends a dual
message to the kids."

"Not in front of the kids!" quickly became a demand for complete
prohibition. The first paraphernalia law to be considered by the U.S.
Supreme Court, adopted by the Illinois town of Hoffman Estates in
1978, required paraphernalia dealers to obtain a license and refrain
from selling to minors but permitted them to continue operating
(albeit with recordkeeping requirements that might have intimidated
customers). By the time the Supreme Court upheld the law in 1982,
more than 20 states had passed versions of the DEA's model statute,
which bans products "used, intended for use, or designed for use" in
consuming illegal drugs. Today every state has a drug paraphernalia
ban except West Virginia, which requires a license.

The attorney for Hoffman Estates conceded the cultural nature of the
anti-paraphernalia campaign, telling the Supreme Court during oral
arguments, "We have a right to legislate against lifestyles." Justice
Thurgood Marshall, who wrote the majority opinion rejecting the
argument that the town's paraphernalia law was unconstitutionally
vague, also dismissed a First Amendment claim. "The ordinance is
expressly directed at commercial activity promoting or encouraging
illegal drug use," he wrote. "If that activity is deemed 'speech,'
then it is speech proposing an illegal transaction, which a
government may regulate or ban entirely." Yet as evidence that the
defendant, a record store called The Flipside, had violated the
ordinance by selling drug paraphernalia without a license, Marshall
noted that it had "displayed the magazine High Times and books
entitled Marijuana Grower's Guide, Children's Garden of Grass, and
The Pleasures of Cocaine, physically close to pipes and colored
rolling papers." He seemed untroubled by the prospect that a store
could in effect be punished for selling material protected by the
First Amendment, referring dismissively to "the theoretical
possibility that the village will enforce its ordinance against a
paper clip placed next to Rolling Stone magazine."

Four year later, at the height of Ronald Reagan's war on drugs,
Congress banned products "primarily intended or designed for use"
with illegal intoxicants. When the Supreme Court upheld the federal
ban against a vagueness challenge in 1994, it interpreted the law as
requiring 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." Writing for the majority, Justice
Harry Blackmun said it was not necessary to show "knowledge on the
defendant's part that a particular customer actually will use an
item...with drugs. It is sufficient that the defendant be aware the
customers in general are likely to use the merchandise with drugs."

This standard is stricter than, say, the rule for hardware or
software that can be used to make unauthorized copies of copyrighted
material, under which selling the item is legal as long as there are
substantial non-infringing uses for it. Robert Vaughn, a Nashville
defense attorney specializing in drug paraphernalia cases, sums up
the federal intent requirement for drug paraphernalia this way: "Did
you intend to sell those items? Well, obviously [you did]. OK, we've
got that intent to sell out of the way. 'Now, ladies and gentlemen of
the jury, look at these items we're setting in front of you, and you
decide whether or not they're drug paraphernalia. And oh, by the way,
how many of you remember your grandfather sitting on the porch rocker
smoking from one of these four-foot-tall acrylic things?' "

'For Tobacco Use Only'

The federal ban lists specific examples of drug paraphernalia,
including "water pipes," "carburetion tubes," "smoking masks,"
"electric pipes," "chillums," "chillers," "wired cigarette papers,"
and "metal, wooden, acrylic, glass, stone, plastic or ceramic pipes
with or without screens." But it includes an exception for any item
"traditionally intended for use with tobacco products." In practice,
then, the "objective" standard is often subjective, based on a
prosecutor's idea of what drug paraphernalia looks like. The same
sort of thing happens in state cases, where courts consider an item's
appearance in judging its intended use.

It is easy to mock the transparent subterfuges of head shop owners
who insist their merchandise is "for tobacco use only." The satirical
Comedy Central debate show Crossballs once featured a merchant who
insisted with a straight face that "there are a lot of people in
society who enjoy smoking tobacco in very elaborate ways." Mary Beth
Buchanan becomes audibly angry when she talks about "those absurd,
disingenuous advertising statements that people who want to violate
the law make when they try to sell this product that is clearly illegal."

Still, paraphernalia bans do raise serious definitional issues.
"Anything can have a dual use," notes New Orleans defense attorney
Bill Rittenberg. "There's nothing that can be used as a smoking or
snuff accessory for tobacco that can't be used for marijuana." While
a giant plastic bong may seem like an obvious example of drug
paraphernalia, people do use other sorts of water pipes, as well as
dry pipes made from materials other than the conventional briar,
meerschaum, or corncob, to smoke tobacco. Buchanan maintains that an
item listed in the federal ban is illegal "regardless of what you do
with it, regardless of whether some idiot actually goes and puts
tobacco in it." But that interpretation would make hookahs--water
pipes traditionally used to smoke sweet, fruity tobacco
mixtures--illegal. Even Buchanan concedes that rolling papers, which
can be used to make cigarettes as well as joints, are not necessarily
drug paraphernalia. The targets of Operation Pipe Dreams did not
include any convenience stores that sold rolling papers, even though
many of those end up wrapped around marijuana. Likewise, vaporizers,
which are not listed in the federal ban, can be used with marijuana
or with legal medicinal herbs (not to mention the fact that in
California and 12 other states marijuana is a legal medicinal herb).

Law enforcement officials themselves can have trouble telling the
difference between legitimate smoking accessories and illegal drug
paraphernalia, as illustrated by the travails of the Smoke Signals
Pipe and Tobacco Shop in Dover, New Hampshire. Police first raided
the store in October 2001, seizing various items they identified as
drug paraphernalia. The store's manager, Susan Hargrove, ultimately
pleaded guilty to a single charge of selling drug paraphernalia,
resulting in a suspended $1,000 fine. As part of the plea agreement,
the government returned most of the seized merchandise, including
glass pipes, a glass chillum, various water pipes, and metal
one-hitters (small, narrow pipes), saying they were OK to sell.

In March 2004, less than two months after the plea agreement, the
same police department raided the same store and seized several of
the same items prosecutors had just given back. After the government
filed new paraphernalia charges against Smoke Signals, a judge
acquitted the company in a bench trial, concluding that Hargrove and
her mother, Kelly, the store's owner, could not knowingly have
possessed drug paraphernalia, a requirement for conviction under
state law, since the items had been returned by the government. But
when Smoke Signals filed a motion asking for the merchandise back,
the judge said no. Despite the fact that the government had told
Susan and Kelly Hargrove the items were not drug paraphernalia, the
judge concluded they were, based mainly on the testimony of a
detective who conceded he was not an expert on the subject and could
not explain the methods he used to identify paraphernalia.

Smoke Signals' lawyer, Jonathan Cohen, took the case to the New
Hampshire Supreme Court, arguing that the state paraphernalia law was
so vague that people could not reasonably be expected to know when
they had violated it. In April 2007, the court rejected that argument
but ordered the return of Smoke Signals' merchandise, saying it could
not be considered contraband in light of the store's acquittal on
paraphernalia charges and the government's earlier assurances that it
was legal.

Despite experiences like the Hargroves', defendants in state
paraphernalia cases have some advantages over those facing federal
paraphernalia charges. For one thing, the feds tend to come down a
lot harder. In addition to paraphernalia charges, each of which
carries a penalty of up to three years in prison plus a $250,000
fine, federal prosecutors can bring money laundering and racketeering
charges based on the same actions. If you deposit the proceeds from
paraphernalia sales in the bank, that's money laundering; if you make
more than one sale or deposit, that's a "pattern of racketeering
activity." The penalties add up fast, creating tremendous pressure
for a guilty plea. "The doo-doo gets deep," says Vaughn. "I can show
you theoretically how you could get life in prison." And then there's
the uncomfortable fact that the government is apt to seize all your
assets before you can hire a lawyer.

Assuming you nevertheless choose to go to trial, the government's
burden is pretty easy to meet, thanks to the Supreme Court's
interpretation of the federal paraphernalia ban. In a federal trial,
says Vaughn, "They don't really give a shit if you have a sign in
there that says, 'Not intended for illegal use.' " He describes the
government's attitude this way: "We don't care about the way you
displayed it. We don't care about the way you marketed it. It was
illegal sitting there."

'You Have to Leave Here Right Away'

Under state laws, by contrast, the defendant's state of mind is
relevant, so such disclaimers can make a difference. So can the sale
of tobacco or legal herbs alongside smoking equipment and the
avoidance of marijuana leaf decorations and other countercultural
signifiers. It does not help your case if you advertise in High
Times, sell it or other drug-related magazines in your store, or
distribute NORML literature. In 1981 NORML unsuccessfully challenged
Virginia's drug paraphernalia ban in federal court, arguing that it
infringed on freedom of speech by encouraging police to seize the
group's leaflets as evidence of a merchant's intent.

Retailers also have to be careful about what they let customers say.
"If somebody comes in and says, 'Sell me a dope pipe,' and [he's]
body wired and you sell it to him," Vaughn says, "you're screwed."
Jon Gettman, who never had to worry about such things when he was
running a head shop in the '70s, says he recently visited a store in
Miami that was "selling what I recognized to be bongs, and they had
to be very, very careful about the language anyone used in the store
in referring to these things. In fact, I...made some reference [to
marijuana], and they politely asked me to leave." At a similar store
in San Diego, Allen St. Pierre offered the clerk his NORML business
card. "He looks at it," St. Pierre recalls, "and he goes, 'Holy shit,
you've got to get out of here. You have to leave here right away.' "

Maybe those clerks were excessively cautious. But it's clear that
pipes coupled with controversial drug-related speech can get a
business into trouble when the pipes alone would not. In February
2006, police in Middletown, Pennsylvania, filed paraphernalia charges
against the manager of the Spencer's Gift store at the Oxford Valley
Mall and the CEO of the company that owns the chain. The crime
ostensibly was selling water pipes, but according to the Trentonian
police also objected to posters, T-shirts, hats, and other items
"depicting marijuana themes," some of which were seized as evidence.
"When you combine the various above items depicting marijuana usage
with the hookahs or water bongs," said a police detective, "it is
apparent that the company is creating the appearance that the hookahs
are for marijuana use. The message on all these items being sold is
certainly pro drug use."

Richard Cowan, publisher of Marijuana News, has proposed a sales
tactic that would highlight the speech-suppressing aspect of
paraphernalia laws. He urges head shop owners to "undermine the
enforcement of the marijuana laws" by selling legal herbs alongside
pipes and encouraging customers to smoke the stuff openly as an act
of protest. There would be "no subterfuge, no pretense," he wrote in
a 2002 essay on his website. "This is an explicitly political
action." It would be interesting to see the government's response to
such a campaign. Along similar lines, reason considered including
rolling papers labeled "For Marijuana Use Only" in each copy of this
issue to illustrate the silliness of paraphernalia laws but decided
against it because of legal concerns.

One of the clearest recent examples of how these laws punish speech
was the case against Tommy Chong, famous for playing a clueless
stoner alongside Cheech Marin in movies such as Up in Smoke and on
his own in the sitcom That '70s Show. Chong's publicist initially
argued that the colorful, elaborate pipes produced by Chong Glass
were not marijuana smoking devices but works of art. This claim was
not as disingenuous as it sounds: Many of the pipes were too pricey
for casual use, and some had been featured in a Los Angeles art
exhibit. But Chong quickly dropped that argument, presumably after
getting legal advice. Under federal law, Vaughn explains, "the bottom
line is this: If it's a cylindrical tube with a base on it with a
stem projecting from the side with a bowl on it that you face over to
smoke, that's a bong....It's per se illegal. I don't care if you say
that it's for your mantle. I don't care if you say that it's art for
art's sake."

In the end, Chong never got the chance to try any sort of defense. To
avoid charges against his son and his wife (who co-signed the loan
used to start Chong Glass), he pleaded guilty and was sentenced to
nine months in prison, which he completed in July 2004. He also paid
a $20,000 fine and forfeited $120,000 in assets. The sentence, one of
the more severe punishments received by defendants charged in
Operation Pipe Dreams, was imposed after Assistant U.S. Attorney Mary
Houghton urged the judge not to let Chong off lightly. In a
pre-sentencing brief, she complained that "the defendant has become
wealthy throughout his entertainment career through glamorizing the
illegal distribution and use of marijuana. Feature films that he made
with his longtime partner Cheech Marin, such as 'Up in Smoke,'
trivialize law enforcement efforts to combat drug trafficking and use."

It was a remarkable concession that the government wanted to punish
Chong at least partly for making fun of drug warriors and mocking
prohibition. "This was the government's payback for all the Cheech
and Chong movies that ridiculed the hypocrisy of the government's War
on Drugs," Chong wrote in his 2006 memoir The I Chong. "The DEA...
hated the way we portrayed them in movies...The Feds took a fictional
movie and prosecuted the actor and writer for exercising his freedom
of expression." When I ask Buchanan, Houghton's boss, about the
prosecution's references to the Cheech & Chong oeuvre, she says one
of the factors the judge considered at sentencing was whether Chong
had followed through on a post-indictment promise to educate children
about the dangers of drugs. When I ask what bearing the films he made
years before his arrest had on that question, she says, "The court
had a number of factors to consider."

As for "glamorizing" drug use, it hardly seems an apt description of
movies featuring two stoned doofuses. "I've seen every Cheech & Chong
movie," says High Times Associate Publisher Rick Cusick, "and glamour
is not a word I've ever attached to that experience. I've never
walked away from a Cheech & Chong movie saying to myself, 'Gee, I
want to be more like those guys.' "

In a weird coda to the Chong prosecution, the comic told the
Pittsburgh Post-Gazette that federal agents seized 8,000 to 10,000
copies of a/k/a Tommy Chong, a documentary about his case that's
highly critical of Buchanan, when they raided the Newport, Kentucky,
offices of Spectrum Labs in May. The raid was part of Buchanan's
investigation of the company for selling drug-test-beating products
such as Urine Luck. Margaret Philbin, a spokeswoman for Buchanan's
office, says Chong's claim of a mass DVD seizure is "completely
false," though "we may have taken one."

'They're All Over the Country'

Federal prosecutors were not alone in resenting Tommy Chong's high
profile. In 2002, shortly after being busted on federal paraphernalia
charges in Florida, the pipe manufacturer Chris Hill complained to
the Drug War Chronicle that he had been unfairly singled out.
Describing the Contemporary Tobacco Trade Association's annual show
in Las Vegas, he said, "They've got Tommy fucking Chong selling bongs
there....I boycotted that show because I thought it was too close to the edge."

Hill prided himself on running his company, Chills, conservatively,
eschewing the more flamboyant head shops in favor of tobacconists.
"We were a company that was pushing paraphernalia for legitimate
uses," he told High Times in 2004, after serving a 14-month sentence
in a federal prison for selling drug paraphernalia. "Obviously we
know people are smoking pot with it, but we strived to stay in
compliance." He again contrasted Chills with Chong Glass, saying
Tommy Chong "was asking for it." Chong being who he was, he couldn't
have avoided the cannabis connotations of his business even if he had
wanted to, but neither was there ever anyreal question that pot
smokers were Chills' target market.

Still, Hill's bitterness is not hard to understand. While serving his
sentence, he recalled, he was "leased out" to do grounds maintenance
at the Pensacola Naval Air Station. "Every day," he said, "on the way
to work and on the way back to prison, I had to pass at least one
head shop and two billboards for other head shops selling the same
pipes I went to prison for selling. They're all over the country. So
is it illegal? I guess so. I went to federal prison for it."

Yet he also was honored for it by the National Republican
Congressional Committee, which gave him a business award in 2001. Two
years before that, Inc. recognized Chills as one the country's 500
fastest-growing businesses. Hill went to sleep the night before his
arrest a respected entrepreneur, and he woke up an accused felon,
based on the same actions that had won him accolades.

Vault owner David Sil experienced a similar transformation when his
Missoula store was raided in the 2005 Operation Heads Up. So did
Steve Andriakos, whose hippie accessory emporium in Bozeman, The
Grateful Shed, had been around for 15 years. Like Sil, Andriakos
insisted on a trial, after which the judge dismissed the charge
against him, finding there was insufficient evidence for the case to
go to the jury. Andriakos' lawyer, Chuck Watson, notes that The
Grateful Shed, which had two cases of smoking accessories that
accounted for a small share of its business, was burglarized in
January 2006. "A bunch of this so-called paraphernalia was stolen,"
he says. The local police "caught the guy who did it and told
[Andriakos' partner] to come get the merchandise. They didn't want
it. He put it right back in the store." Watson adds that "the county
attorney told [Sil] that what he was doing was not illegal....If you
get the government's permission to do something, how many
governments' permission do you have to get?"

At least two. Susan Halonen, a DEA public information officer in
Denver, says Sil and Andriakos were able to operate "under the radar"
because their communities were "tolerant" and Montana's paraphernalia
law has been interpreted to require some sort of "drug nexus," such
as residue or a nearby stash. As Sil and Andriakos discovered, the
DEA's reading of federal law does not leave the same wiggle room.
Asked why only a handful of Montana merchants were targeted even
though others were selling the same stuff, Halonen says the DEA,
which did not have any presence in western Montana until 2002, has
limited manpower. "They can't target everybody," she says, "even
though they'd like to."

'Nobody Said Anything'

Sil and Andriakos' complaint is a common refrain among manufacturers
and retailers hit with paraphernalia charges: No one ever told us
this was a problem. "If anyone had ever said, 'You're breaking the
law; you need to stop,' I would have called my attorney and then I
would have stopped," Chris Hill told the Sarasota Herald-Tribune
after his arrest in 2002. "But it's not that kind of party. They want
to shoot first and ask questions later." Even after Hill's
prosecution, many people in the industry were not up to speed on the
federal paraphernalia ban.

The government's response, of course, is that ignorance of the law is
no excuse, that anyone who gets into this business should realize the
risks he's taking. "If you violate the law, you have to accept the
consequences," says Buchanan. And if you haven't heard of the law,
"that's your problem."

But suddenly being charged with selling illegal paraphernalia after
years of apparent legitimacy still strikes many people as unfair,
especially given the vagueness of state and federal law. "All of a
sudden, a shop that has been operating in full view, a member of the
chamber of commerce, all that good stuff, the next day they're a
pariah within their community," says Allen St. Pierre. After the
federal arrests in 2003, he recalls, NORML's phone rang off the hook
with calls from worried manufacturers and retailers. "Those people
were totally dumbfounded," he says. He sums up the typical response
this way: "This is outrageous. How can this possibly be? I've been
making these products for years, and nobody said anything to me."

That story is especially plausible in parts of the country that are
relatively tolerant of the drug culture's accoutrement and symbols.
"Certainly in California people assume that things are a lot more lax
than they really are," says Bill Rittenberg, who notes that retailers
in places like New Orleans and Key West also do not seem terribly
worried about running afoul of paraphernalia laws. "They're in
certain areas, and they're not in other areas--just like
pornography." But as with pornography, prosecutors can lure
distributors to sell their merchandise in places where jurors are
less likely to take it lightly. "We play by the rules, we don't break
the law, and we don't do business in Des Moines," a Chong Glass
spokesman told the Drug War Chronicle a year before the DEA raided
the Gardena, California, business. Unfortunately for Tommy Chong,
they did do business on Buchanan's turf, western Pennsylvania, where
DEA agents set up a fake head shop that ordered his pipes.

The celebrity sting attracted considerable media attention, prompting
Chris Hill to complain in his High Times interview that "nobody cared
[about paraphernalia laws] until Tommy Chong got arrested." But six
years later, it's hard to discern the impact of Chong's bust or the
other arrests generated by Operations Pipe Dreams and Headhunter,
which the DEA says put 42 paraphernalia dealers and manufacturers out
of business.

"If there were any individuals out there who were unaware of the
law," says Buchanan, "they're now aware of the law." She says the
arrests also raised awareness among parents and educators, and she
claims "there are less illegal products available." But to people
with more intimate knowledge of the paraphernalia market, it doesn't
look that way. "I hate to say it because I don't want to poke a
gorilla in the eye, but what happened in 2003 was cosmetic," says
Rick Cusick, the former High Times editor. "It didn't eliminate any
industry, and it didn't slow down a whole lot....They made everybody
go underground a little bit for a little while, and then it started
to creep back again." Vaughn, who helps clients set up smoke shops
that will pass legal muster by meeting with local law enforcement
officials and asking them to clear the merchandise ahead of time,
agrees the intimidating effect of the arrests has dissipated. "I
would say that the impact today based on what happened in February
2003 is minimal," he says.

Stephen Dillon, an Indianapolis defense attorney with extensive
experience in paraphernalia cases (and chairman of NORML's board of
directors), perceives some subtle changes. "They probably won't
advertise the same way they did before Pipe Dreams," he says. "The
smart ones won't. And they won't have items that are per se
paraphernalia, only designed for one purpose....They don't put
marijuana leaves on the bongs anymore."

This sort of adjustment, akin to slapping black plastic covers on
dirty magazines at the newsstand, is the most that the on-again,
offagain crusade against drug paraphernalia is likely to accomplish:
a somewhat more discreet version of a business that will continue to
operate in one form or another as long as people are interested in
smoking pot. "The aggressivemarketing of the tools and paraphernalia
of drug use has been an active affront to the efforts of parents,
educators, and community leaders who are trying to help young people
stay away from drugs," drug czar John Walters complained in a
statement issued the day of Ashcroft's Operation Pipe Dreams press
conference. "Today's actions send a clear message to those who would
poison our children." The message: Get those marijuana leaves off your bongs.