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Tobacco Paraphernalia? Prove It.

Tobacco paraphernalia is in many cases indistinguishable from cannabis paraphernalia, especially when products are unconnected to specific consumers. If an item can be used in both lawful and unlawful ways, it seems illogical to classify it as drug paraphernalia, unless the item is connected to illegal activity. Yet the approach of the U.S. federal authorities is the opposite: Absent evidence of intended lawful use, they have no qualms about labeling something as drug paraphernalia.

The Controlled Substances Act defines “drug paraphernalia” as:

“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.” 21 U.S.C. § 863(d).

As readers may imagine, the “primarily intended or designed” part of that definition has been and remains the subject of many a legal scuffle. For many products, it is clear that they can be used with both tobacco and cannabis, but their primary intended use may be hard or impossible to establish. As we recently noted in Goods and Services and Canna Trademarks:

whether [a] lighter or ashtray or rolling paper is used with marijuana or hemp

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