Pot Matters: The Lesson of the Paraphernalia Wars

The late 1970s were a glorious time for the cannabis community.

Decriminalization laws were sweeping the nation, and it felt like legalization was inevitable. There was a booming cannabis paraphernalia industry. NORML experienced great political success throughout the 1970s, spreading decriminalization as a policy and the idea that people shouldn’t go to jail for marijuana as a public value. HIGH TIMES, then a relatively new magazine, was a rising commercial success.

Then, it all collapsed.

NORML fell on hard times, decriminalization lost its momentum, the paraphernalia industry was outlawed and the anti-drug movement of the “Just Say No” era blossomed. HIGH TIMES survived and prospered, but that’s beside the point. What point? Momentum is not destiny, especially in politics and public policy.

The legalization movement is at a similar point in history as the decriminalization movement was at the end of the 1970s—politically successful, trendy and responsible for a rapidly growing and profitable industry. Both successful movements shared another key characteristic: They were the result of a small group of savvy activists backed by a small group of wealthy benefactors.

In the ‘70s, it all collapsed, though, when prohibitionists rallied, regrouped and finally launched their counterattack with the support of a new Republican administration and the political ascendency of what became known as movement conservatism.

This was too much for the narrow base of political activists who had brought about decriminalization, and, tragically, of little concern for the recently profitable paraphernalia industry. The problem faced by the paraphernalia industry was that its products were being criminalized.

Their response, rather than fight harder for marijuana law reform, was to redefine their products in ways they thought would evade the new anti-paraphernalia laws.

They thought it was clever to simply claim that the rolling papers, roach clips, small pipes and bongs they sold were really for tobacco rather than for marijuana. Legislators responded with new types of laws, based not on intent but instead on specific lists of products. In technical terms, this meant that a bong, for example, was drug paraphernalia, period. The legal phrase that did the industry in was “per se,” meaning “by itself” or “as is.” A bong was drug paraphernalia, per se, by itself, regardless of intent.

Prohibition supporters learned to live with decriminalization, which after all, in many states, simply replaced a custodial arrest with a court summons and a jail term with a fine. And after the boom years of the 1970s, official passage of decriminalization laws stopped. Prohibitionists may have lost the battle, but they still managed to win the war.

Even as sentencing reform replaced decriminalization (more probation, less jail time), marijuana was still considered an illicit substance. The war, though, was the pubic flaunting of widespread marijuana use represented by the spectacle of successful businesses built on the sale of drug paraphernalia. It was hard to convince teens that marijuana was a decadent, sleazy drug used by losers when it seemed like every record store had a wall of bongs in the window.

The anti-drug movement of the 1980s targeted an unholy trinity, consisting of NORML, HIGH TIMES and the drug paraphernalia industry. Over time, all three survived, while the prohibitionists that challenged them withered away. Over time, the marijuana reform movement—nurtured by NORML, HIGH TIMES and a wider coalition of drug policy reformers inspired by the work of influential academics such as Alfred Lindesmith and Arnold Trebach—gained new life. New groups emerged out of this community, such as the Drug Policy Alliance and the Marijuana Policy Project, and the emergence of contemporary legalization laws is, as they say, now history.

But there are lessons to be learned from history.

The first is that the marijuana legalization movement needs broad-based public support. Cannabis consumers cannot sit back, enjoy the show and marvel at the changes. Just because a small groups of activists, a few advocacy groups and a handful of wealthy benefactors have produced this latest wave of reform doesn’t mean they can sustain it. Hundreds of activists in various states understand this and are working hard to advance greater change. But this needs to grow to tens of thousands of activists nationwide.

The second lesson to be learned from history is that the commercial interests profiting from the reform of marijuana laws need to mobilize and invest capital into sustaining legalization efforts. Just as the paraphernalia industry believed it could inoculate itself and survive by being clever, there are some in the marijuana industry that believe they can survive by clutching to medical marijuana as a concept that will allow them to ride out any counter-assault to legalization. But medical marijuana will be easier to dispose of than drug paraphernalia, because as soon as the pharmacology industry develops cannabinoid substitutes for natural cannabis, legislatures will have the political cover to ban natural marijuana as a therapeutic substance. Natural marijuana can be redefined as an illicit substance in medical practice, just as easily as paraphernalia was.

All it takes is too Latin words—per se.

These are great times for marijuana law reform. But the empire can strike back, and it will. Learn the lessons of history. Cannabis consumers and commercial interests must increase their support for political action—financially, politically and most importantly, ethically. Reform has the momentum, but that should be considered a challenge to participate rather than an excuse to observe.