Dear Herb: I’m confused — are head shops legal or not?

Hey there, time traveller!
This article was published 15/05/2018 (2319 days ago), so information in it may no longer be current.

Dear Herb: Could you do a post on the legality of head shops? I see that selling drug paraphernalia is illegal in the Criminal Code, but I am under the understanding that if they are positioned as for “herb consumption” rather than cannabis, that makes it legal.

I’ve always considered the head shops themselves to be legal in selling pipes, rolling papers, bongs, etc. Could you explain whether this is an incorrect view, or if perhaps some of the items are illegal while others aren’t? — Trying to Crack the Criminal Code

Dear Trying: Thanks for writing in with this smart question. The answer is a bit confusing, but then again, so’s the law.

Since 1988, it has been a Criminal Code offence to import, export, manufacture, promote, or sell “instruments or literature for illicit drug use.” That means it’s illegal to sell pipes, rolling papers and bongs if they’re meant for consuming outlawed substances (like cannabis).

In 1992, that law was used against Umberto Iorfida, then the national director of the Canadian branch of the National Organization for the Reform of Marijuana Laws. Police received a tip from a confidential source who told them Iorfida was sitting on a big stash of pro-legalization literature. The cops subsequently raided Iorfida’s home, seized the contraband material, and charged him with violating the relatively new law.

Crown prosecutors later withdrew that charge, but Iorfida took the matter to court. He argued the law violated his Charter right to freedom of expression. Ontario Court Justice Ellen MacDonald ultimately agreed, and declared the literature ban unconstitutional.

“It ceased to be enforced, although technically it’s still on the books,” Toronto-based cannabis lawyer Jack Lloyd told me.

What about the criminal prohibition on selling instruments for illicit drug use?

That part of the law also remains on the books, said Osgoode Hall law professor Alan Young, who was involved in the Iorfida case. In an email, Young told me he attempted a number legal challenges against the ban on selling illicit drug paraphernalia, one of which even reached the Court of Appeal for Saskatchewan. None of those challenges ever succeeded, he said.

But the “instruments” ban generally “has not been enforced (except occasionally in small towns),” wrote Young.

There you have it, Trying. Even though it’s still technically a criminal offence to sell cannabis paraphernalia — which explains why head shops tend to pretend their pipes and vaporizers are meant for tobacco or some other “herb” — the law is rarely enforced.

Since legally-produced cannabis will no longer be an “illicit drug” after legalization, I’m guessing head shops will no longer have to worry about selling cannabis accessories. But those head shops will have some new legal concerns to deal with after legalization, as the federal Cannabis Act will establish new rules around selling cannabis paraphernalia.

Bill C-45 defines a “cannabis accessory” as “rolling papers or wraps, holders, pipes, water pipes, bongs and vaporizers, that is represented to be used in the consumption of cannabis or a thing that is represented to be used in the production of cannabis.”

Like cannabis itself, cannabis accessories will be subject to significant restrictions on marketing and branding in C-45.

Anyone selling accessories won’t be able to package or label it in any way that could make it “appealing to young persons,” uses a “testimonial or an endorsement,” or depicts “a person, character or animal, whether real or fictional.” (There goes my idea for a line of Care Bears bongs.)

Nor could cannabis accessories be branded in a way that “evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.”

And if you’re planning to sell cannabis accessories after legalization, be sure to get your facts straight — labelling an accessory with “false, misleading or deceptive” information will be illegal.

Until we meet again, remember — that four-foot bong you’ve been trying to sell on Kijiji is for tobacco only!

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