4. Paraphernalia Law*

Federal legislation should be enacted to prohibit transportation or shipment of drug paraphernalia, as defined in the Model Drug Paraphernalia Act, to minors either by mail through the United States Postal Service or in interstate commerce.

The problems involved with the easy availability of drug paraphernalia were raised throughout the Advisory Commission hearings. Parent groups, school administrators, students and treatment professionals81 all remarked on the ease in which a juvenile may acquire the needed instruments of drug use.

The statistics are staggering. Nearly 65 percent of all juveniles have tried marijuana and 48 percent of those have used the drug more than 10 times.82 The Surgeon General of the United States, Dr. C. Everett Koop, has reported that:

In the past 20 years there has been a 30-fold increase in (marijuana) use among youth. More than a quarter of the American population has used (marijuana). The age at which people first use marijuana has been getting consistently lower and is now most often in the junior high school years. Daily use of marijuana is greater than that of alcohol among this age group. More high school seniors smoke marijuana than smoke cigarettes.83

The statistics are equally alarming with regard to other controlled substances. Cocaine use among high school students leaped from an estimated 6 percent in 1976 to over 20 percent in 1982.84 This figure translates to one out of every seven high school seniors experimenting with cocaine.85 This increase in use has been attributed to easy availability, reduced prices and improved purity.86 In response to these figures, it is not surprising that the drug paraphernalia industry reports record sales. The numbers are estimated in the billions of dollars.87 As an outgrowth of this boom, the paraphernalia industry in 1977 established its own trade organization, trade journal, and periodical. This recommendation88 encourages federal action to prohibit the interstate sale and shipment of drug paraphernalia which would eliminate the mail order and catalog sales of the instruments of drug use to minors.
The resolution adopts the definition of drug paraphernalia as stated in the Model Drug Paraphernalia Act (MDPA).89 That definition states that:

Drug Paraphernalia means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this Act.90

In order to further avoid claims of vagueness or overbreadth, the definition of paraphernalia91 has been refined to provide a fair warning to manufacturers of what conduct is prohibited and a list of appropriate standards for police and courts to follow when enforcing the law.92 The Act also contains a specific intent requirement "to mitigate any definitional ambiguity or uncertainty."93

To date, there has been no direct constitutional challenge to the MDPA in the U.S. Supreme Court. In 1982, in Hoffman Estates v.  Flipside,94 the Court upheld a city anti-paraphernalia ordinance which did not contain language as precise as that of the MDPA. That decision virtually assures that a carefully drawn anti-paraphernalia law will withstand a pre-enforcement facial challenge to its constitutional validity.95

Since Flipside, of the 13 cases considering drug paraphernalia laws, only one has held an ordinance unconstitutional; and that ordinance was not based on the MDPA.96 In addition, no appellate level Federal Court has overturned a state or local ordinance mirroring the MDPA.97 An Eleventh Circuit decision, Florida Businessmen for Free Enterprise v. City of Hollywood,98 indicative of similar decisions reached by the other circuits, held that the city ordinance, based on the MDPA, did not impinge on protected non-commercial speech. The intent provisions of the ordinance gave fair notice of which articles fell within the ordinance's scope, and the ordinance's "reasonably should know" standard defining substantive offenses was not impermissibly vague.99

To date, 38 states and hundreds of localities100 have enacted statutes prohibiting the sale of drug paraphernalia. An unfortunate outgrowth of the success of these state and local statutes has been the emergence of the mail order paraphernalia industry. Upon introducing S. 713, the Mail Order Drug Paraphernalia Control Act, Senator Pete Wilson, (R., Ca) stated:

By using the mail to ••• transport drug paraphernalia this industry is seeking to circumvent state and local laws. These products enhance or aid consumption of illegal drugs, glorify the use of drugs, and enrich those who would victimize our nation's children through these mind-destroying drugs.101

Challenges to the constitutionality of the local paraphernalia ordinances have been defeated in virtually every case where the ordinance was patterned after the definition used in the MDPA. With the subsequent rise of the mail order paraphernalia houses, the instant recommendation urges the states and federal government to support the enactment of legislation designed to prohibit transportation or shipment of drug paraphernalia through the mails and interstate commerce.

79See, e•g_, South Dakota v. Neville, 103 S. Ct. 916 (1983); and Mackey v. Montrym, 443 U.S. 1 (1979).

80Such partial licenses are already permitted in some states so as to enable minors to travel to and from work. See, e.g., N.Y. Veh. & Traf. Law Sec. 501.3 (McKinney 1984-85).

*Nothing in this resolution or report should be construed to mean that the ABA condones the sale of drug paraphernilia to adults. The only reason this resolution is limited to prohibit the sale of drug paraphernalia to minors is that these recommendations grew out of the ABA Advisory Commission on Youth Alcohol and Drug Problems and it was felt that the resolution should concentrate on matters directly affecting youth.

81See testimony of William Coletti, Amy Haywood, Atlanta; and Arnold Washton, M.D., Princeton.

82131 Cong. Rec. S3319 (daily ed. March 20, 1985) (statement of Sen. Pete Wilson).

831d.

84Testimony of Arnold Washton, M.D., Princeton.

85See supra note 83.

86Testimony of Arnold Washton, M.D., Princeton. According to Dr. Washton:

The price of cocaine has fallen by as much as 50 percent in the past year in many of the large cities: one gram of cocaine, at $60-70 on the illegal market, is now cheaper than an ounce of marijuana. Meanwhile, the purity has increased from about 28 percent in 1982 to over 40 percent in 1983.

87See supra note 83.

88See 5.713, "The Mail Order Drug Paraphernalia Control Act" which was introduced on March 20, 1985 to the Senate Committee on the Judiciary by Senator Pete Wilson (R., Ca). 131 Cong. Rec. S 3319 (daily ed. March 20, 1985). Similarly, See, e.g., federal law also restricts the sale of all firearms or ammunition to youth under eighteen, and certain other weapons to youth under 21. 18 U.S.C.A. 922 (b)(1) (West 1976). See also the recommendation and report regarding illegal sales to minors.

89The Drug Enforcement Administration (DEA) drafted the Model Drug Paraphernalia Act (MDPA) in 1979 to counter the availability of drug paraphernalia, which the DEA characterized as at an epidemic level. The MDPA attacks the drug paraphernalia industry,

which promotes, even glamorizes, the illegal abuse of drugs by adults and children alike. Sales of drug paraphernalia are reported as high as three billion dollars a year. What was a small phenomenon at the time the (original) Uniform Act was drafted has now mushroomed into an industry so well entrenched that it has its own trade ... lines and associations.

The MDPA was written in response to judicial invalidation of various state and municipal laws controlling drug paraphernalia. Several of these pre-MDPA laws failed before constitutional challenges on both overbreadth and vagueness grounds.

The MDPA is the DEA's attempt to write a statute broad enough to deal with the problem of drug paraphernalia, narrow enough to avoid impinging on constitutionally protected conduct, and precise enough to be understood by both the law's enforcers and its targets.

Note, The Constitutionality of Anti-Drug Paraphernalia Laws - The Smoke Clears, 58 Notre Dame L. Rev. 833, 840 (1983).

The MDPA attempts to overcome overbreadth and vagueness concerns in two ways. First, the Act precisely defines drug paraphernalia and provides examples and other factors for a court to consider when determining whether a particular item is proscribed paraphernalia. See infra note 12. Second, the Act includes an intent (to use with a controlled substance) requirement to obviate any definitional ambiguity. "The term 'Drug Paraphernalia' means all equipment, products and materials of any kind which are used, intended for use, or designed for use ... with a controlled substance." MDPA Art. I.

The MDPA has been adopted in its entirety or in a modified version, by a majority of the states and by many communities. Only seven states and the District of Columbia lack laws focused on prohibiting drug paraphernalia. See 58 Notre Dame L. Rev. at 842, n. 44. (listing of state codification of the MDPA).

90This definition includes, but is not limited to:

1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

3) Iso m erization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

4) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;

5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

8) Blenders, bowls containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;

12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:

(a)    Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(b)    Water pipes;

(c)    Carburetion tubes and devices;

(d) Smoking and carburetion masks;

(e) Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

(f)    Miniature cocaine spoons, and cocaine vials;

(g) Chamber pipes;

(h)    Carburetor pipes;

(i)    Electric pipes;

(j)    Air-driven pipes;

(k)    Chillums;

(l)    Bongs;

(m) Ice pipes or chillers.

91 Early "pipe laws" were struck down on the grounds that they were inherently vague and included a wide variety of objects that the non-hypodermic drug user employed. See Grayned v. City of Rockford, 408 U.S. 104 (1972); See also Note, supra note 89, at 836.

92In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use;
(2)    Prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance;
(3) The proximity of the object of controlled substances on the object;
(4)    The proximity of the object to controlled substances;
(5)    The existence of any residue of controlled substances on the object;
(6)    Direct or circumstantial evidence of the intent of an owner, of anyone in control of the object to deliver it to persons whom he knows, or should92(cont.)
(6)    (cont.) reasonably know, intend to use the object
to facilitate a violation of this Act shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
(7)    Instructions, oral or written, provided with the
object concerning its use;
(8)    Descriptive materials accompanying the object
which explain or depict its use;
(9)    National and local advertising concerning its use;
(10)    The manner in which the object is displayed for
sale;
(11)    Whether the owner, or anyone in control of the
object, is a legitimate supplier of like or
related items to the community such as licensed distributor or dealer or tobacco products;
(12)    Direct or circumstantial evidence of the ratio of
sales of the object(s) to the total sales of the business enterprise;
(13)    The existence and scope of legitimate uses for the
object in the community;
(14)    Expert testimony concerning its use.

93See Note, supra note 74 at 841.

94455 U.S. 489 (1982), reh'g denied, 102 S. Ct. 2023 (1982).

951n Flipside the court employed a two-pronged analysis in upholding the constitutionality of the ordinance: Overbreadth - whether the enactment reaches a substantial amount of constitutionally protected conduct, and vagueness - whether the enactment is impermissibly vague in all its applications.

96Record Head Corp. v. Sachen, 682 F.2d 672 (7th Cir. 1982).

97See, e,g., Nova Records, Inc. v. Sendak, No. 81-1107 (7th Cir. 1983); Camille Corp. v. Phares, No. 82-1410 (7th Cir. 1983); and Stoianoff v. State of Montana, 695 F.2d 1214 (9th Cir. 1983).

98673 F.2d 1213 (11th Cir. 1982), cert. den., 51 U.S.L.W. 3520 (Jan. 11, 1983).

99íd.

100See News Release, Senator Pete Wilson (R. Ca.) (March 20, 1985). See also supra note 83.

101Id.