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Originally Posted by Amputate Your Head
The interesting thing to me is, how do they determine what is actually "drug" paraphernalia versus what can legitimately have other uses. For example, a bong can be used for smoking many things... not just "drugs". And a simple apple (fruit, not the company), can be used for smoking weed. So can empty Pepsi cans... is Pepsi paraphernalia? Syringes can be used to help & heal as well as shoot junk... so are needles evil or what? I use a miniature spoon to measure and take heartburn remedy... paraphernalia?
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That's where the "tobacco products" work-around comes in; there are exceptions for other potential legal uses, too, but the possibility is always there that you have to defend your "use case" in court.
If it comes to that, then the court goes by criteria listed in the same portion of the Controlled Substances Act that covers the definition and penalties for paraphernalia related offenses:
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(e) Matters considered in determination of what constitutes drug paraphernalia
In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1) instructions, oral or written, provided with the item concerning its use;
(2) descriptive materials accompanying the item which explain or depict its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the item in the community; and
(8) expert testimony concerning its use.
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