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Cannabis Paraphernalia: Protecting Your Brand Amid Federal Prohibition

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The days of smoking cannabis out of apples is over. Smoking devices are readily accessible in tobacco shops and cannabis retailers, and their production and sale are big business. Creative shapes and sizes impress and create unique smoking experiences. However, as states across the U.S. continue to legalize cannabis for medical and recreational use, the legal status of cannabis paraphernalia—such as bongs, pipes, and rolling papers—remains a gray area due to ongoing federal prohibition of these devices. However, that does not mean that companies producing these products cannot seek protection of their intellectual property on the state and federal levels. And with a little creative tact, companies can find ways to federally protect their brands.

What are drug paraphernalia?

The term “drug paraphernalia” refers to any equipment used to produce, conceal, or consume illicit drugs. Under federal law, this encompasses:

“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.”

Examples of paraphernalia include:

  • Pipes: Made from various materials such as metal, glass, wood, or ceramic.
  • Water pipes and bongs: Often used for smoking cannabis or other substances.
  • Roach clips: Small tools designed to hold the end of a marijuana joint.
  • Chillums: Cone-shaped pipes often used for cannabis or hash.
  • Cannabis rolling papers: Sometimes marketed for tobacco use but often employed for rolling cannabis joints.

The Federal stance on drug paraphernalia

Despite the widespread state-level legalization of cannabis, federal law continues to prohibit the sale, transport, and use of drug paraphernalia under the Controlled Substances Act. Specifically, U.S. Code Title 21 Section 863 makes it “unlawful for any person to sell or offer for sale drug paraphernalia; to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or to import or export drug paraphernalia.”

Yet, cannabis smoking implements are readily available in stores and online, and there is little indication that the federal government intends to crack down anytime soon. Producers have skirted the prohibitions by labeling their products with disclaimers indicating that they are intended and designed for use with tobacco products. However, a quick review of the design and shape of these items reveals that they are not well suited for tobacco at all.

Retailers such as tobacco shops, gas stations, and novelty stores often display these items prominently. Additionally, online marketplaces and mail-order services facilitate access to paraphernalia, making enforcement of federal restrictions even more unlikely.

Drug paraphernalia in Washington State and beyond

Many states permit the sale and use of cannabis paraphernalia, recognizing their utility in consuming legal cannabis products. This includes Washington State, which has provided an exception to the prohibition of drug paraphernalia if it is intended for cannabis consumption.

Washington law only permits cannabis retailers to sell cannabis paraphernalia to persons over the age of 21. Likewise a new federal law prohibits selling tobacco products to anyone under the age of 21. That being said, exotic shapes and sizes, with creative designs, such as dragons, skulls, or mushrooms, appeal to younger cannabis users. And they range in price from mere dollars to the tune of hundreds or more.

Trademark protection for smoking devices

Since cannabis paraphernalia is big business, it raises the question of whether a manufacturer can trademark the name of their products and stop confusingly similar names from entering the marketplace. The short answer is yes, they can. Potentially, both on the state and federal level. And despite the conflict between state and federal law, some trademark classifications are available to protect a cannabis company’s intellectual property. A little creativity in the federal trademark application process can go a long way in securing some form of trademark protection for a brand name, logo, and trade dress for a wide variety of smoking devices.

Each trademark registration must be associated with one or more classes of goods or services. Since manufacturers disclaim that these implements are for tobacco, on the federal level Class 34 encompasses most products related to tobacco, including lighters and pipes. So federal trademark protection is available if in fact these products are advertised as intended for use with tobacco. Likewise, many states now offer trademark protection themselves even for cannabis products and in Washington State, “smokers articles” are a class available for trademark registration.

However, on the federal level, trademark examiners common use extrinsic evidence to deduce the actual purpose of the products seeking trademark registration. If it appears that the product is unlawful drug paraphernalia, they will refuse registration. Advertisements and articles featuring the products and highlighting their cannabis implications have been reviewed by trademark examiners—and as you might expect there are instances where the USPTO has deduced their true intent. So, it is not a sure thing to merely label your products as intended for use with tobacco. Particularly when they are more elaborate contraptions, for example vaporizers and dab smoking equipment.

Conclusion

Even though there is a federal prohibition on drug paraphernalia, this does not mean that producers need to wait in order to obtain protection of their intellectual property. However, it could mean that your application on the federal level is rejected if you have too much notoriety as a cannabis product.

For more on this topic, check out this webinar or any of the following posts:



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MLK Day 2025: Cannabis and Civil Rights

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It’s MLK Day once again.

I’ve been writing an MLK Day post on this blog for eight consecutive years. The theme of my posts is that cannabis is a civil rights issue, and that Dr. King would have advocated for ending prohibition based on that fact.

Each year, I have demonstrated with facts (upon facts upon facts) that the War on Drugs continues in insidious ways. In, 2023, which is the most recent year that FBI data is available, law enforcement officials made over 200,000 arrests for marijuana-related convictions. Those 200,000 arrests constitute roughly 25% of all drug-related arrests.

Sadly, arrests of black people constituted 29% of all drug arrests in 2023, although only 13.6% of Americans are black.

Heading into MLK Day weekend, President Biden announced that he is commuting the sentences of nearly 2,500 people convicted of non-violent drug offenses. The focus was predominantly on individuals “who received lengthy sentences based on discredited distinctions between crack and powder cocaine…”, as opposed to cannabis-related crimes. According to the Last Prisoner Project, “the total number of those incarcerated for cannabis who received commutations is not knows, but nine LPP constituents will be free.”

For all that Biden promised as to cannabis, it’s the least we could have asked. Under the new Trump administration, attention will quickly return to the frustrating marijuana rescheduling process. If cannabis ends up on Schedule III, criminal penalties for traffickers may soften, but make no mistake: possessing and distributing cannabis will still be a federal crime.

At the state level, where most arrest occur, progress has slowed in the last few years. Out here where I live in Oregon, with our 800 cannabis stores, it’s astonishing to think of 200,000 annual cannabis arrests– most for simple possession, no less.

There is a lot of work to do. Here are a short list of organizations if you’d like to get involved:

For prior posts in this series:



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No Smoking, No Vaping – What’s the Safest Way to Consume Cannabis Based on Your Genetics and Science?

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safest way to consume cannabis

The Safest Way To Consume Cannabis For Health, According To Science and Genetics

 

Marijuana legalization continues to help thousands of people.

Most especially those who need marijuana to treat conditions in a safer, more natural, and more cost-effective manner compared to pricey, addictive, and dangerous pharmaceutical medications. That said, not all weed is made the same: depending on where you get your weed, some of it may be grown using pesticides, which can be bad for your health especially when smoked. So yes, it does matter what kind of weed you’re smoking and where you got it from.

In addition, not all methods of consumption are also the same. Many consumers, particularly extremely health-conscious individuals, prefer not to smoke weed. Smoking weed that’s been grown with pesticides can also be dangerous for one’s health. It’s especially not recommended if you are immunocompromised,

 

That’s why a growing number of consumers prefer to explore the variety of other consumption methods available these days, such as edibles, tinctures, beverages, and cannabis oil to name a few.

Now, the results of a new study have just been published, suggesting that cannabis oil extracts may be the safest way to consume weed. Researchers studied MCT oils that contained high concentrations of CBD with some THC.

 

“Several studies have found damage to various chromosomal associated with cannabinoid use,” said the researchers. “Considering numerous studies demonstrating the genotoxicity of cannabis, it is noteworthy that many of these investigations have focused on individuals who consume cannabis through smoking or in cigarette form, normally rich in THC,” they said.

 

The researchers specifically found that extracts of cannabis sativa don’t exhibit genotoxic or mutagenic potential in doses that are commonly used by patients to manage anxiety, pain, epilepsy, and other conditions. “Although the current literature on cannabis sativa extract remains inconsistent, most evidence suggests that these extracts are safe for cells and DNA under both acute and chronic experimental conditions, even at high doses, in studies involving both male and female animals,” wrote the researchers.

 

Some consumers were alarmed recently when studies, albeit weak in nature, were published, which suggested that cannabis smoke had the potential to be genotoxic. That said, it still isn’t recommended for individuals who may be immunocompromised but there is no strong evidence that cannabis can indeed cause genetic mutations.

 

Since oral consumption of cannabis oil bypasses the respiratory system and allows patients a more accurate way to dose, it’s become the preferred method of consumption for many medical cannabis patients. Whether you’re young or old, the safety profile of cannabis oil has been proven; this is especially true if you wish to avoid respiratory harm.

 

The Role Of Quality Cannabis In Health

 

As cannabis consumers, there are many ways you can ensure that you’re medicating with clean, safe cannabis that’s free from dangerous contaminants. Pesticides aren’t the only contaminants to be aware of; street cannabis sold by dealers can be laced with toxic additives and even fatal ingredients, such as in the notorious case of the tainted THC vapes containing Vitamin E acetate. Other undesirable ingredients to take note of include residual solvents and heavy metals.

 

It’s also your role as a consumer to do research about the quality of cannabis you buy. Of course, it makes sense to only buy from licensed cannabis dispensaries since they can easily supply laboratory-tested cannabis products. From edibles to oils, flowers and more, licensed dispensaries can provide products that have a Certificate of Analysis or COA, which can either be printed on the packaging itself, accessed online, or via a QR code. A cannabis product with a COA can give you peace of mind that the product meets stringent testing and quality standards.

 

In addition, you can also seek out certified organic cannabis products. Of course, the fact that cannabis still isn’t federally legal means that there is nothing similar to a USDA Organic certification for weed, though some manufacturers make it easier for consumers these days to know if they are buying organic or not. For example, if you live in California, you can look for Clean Green Certified or OCal (weed that has been grown in standard that are comparable to organic).

 

 

Conclusion


If you are older or have pre-existing medical conditions, the best way to medicate with marijuana is by taking cannabis oil orally. It’s also extremely versatile, since it can be used to treat an array of conditions ranging from nausea to chronic pain, headaches, muscle pain, and so much more. While it may have reduced bioavailability compared to smoking, cannabis oil extracts do provide fairly quick relief for several conditions.

 

Smoking weed in any form, whether by flower, vape oil, or concentrates, should be avoided or limited altogether. There are also other potential consumption methods that are safer and more suitable for the immunocompromised, such as sprays, edibles, and topicals.

 

It also helps to carefully consider the type of cannabinoids you are consuming. For patients that need to medicate during the daytime, CBD or high-CBD products are always preferred. One must be careful with THC especially if you are older, operate machinery, or have no previous experience with psychoactive drugs. Always start with the lowest dose possible, and work your way to a higher dose slowly.

 

SAFEST WAY TO USE WEED, READ ON…

SAFEST WAY TO USE WEED

AMERICANS DON’T KNOW THE SAFEST WAYS TO USE WEED!



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MLK Day: Cannabis and Civil Rights

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It has become an annual MLK Day tradition here at Canna Law Blog to remind our readers that, first and foremost, cannabis is a civil rights issue. We’ve explained why herehere, here and here.

The past year ushered in some promising developments, from progress with the MORE Act, to state and local developments on social equity licensing measures, to increased expungement of criminal records related to cannabis convictions. Things are looking up for 2021 as well, federally and in many states.

But it’s not enough. Regulation of cannabis–and the composition, orientation and momentum of the industry at large–is nowhere where it needs to be on civil rights issues. Not even close.

Here at Harris Bricken, we are committed to honoring MLK’s legacy this year through our continued work with the Last Prisoner Project, through reduced fees for minority-owned cannabis businesses, and through review and promotion of robust state-level social equity legislation.

Although Dr. King died 53 years ago, his legacy continues to resonate and expand. On this day honoring one of our greatest leaders, it is important to remember all of the reasons we strive to end prohibition– including the most important ones.



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