This Is Not a Pot Pipe.

• Author: Sullum, Jacob

IF YOU TAKE an apple from your fruit bowl, you have committed no crime. If you take a knife and carve a right-angled channel through the apple, starting at the top and ending on the side, you are still in the clear.

But the moment you think about covering the top hole with perforated aluminum foil to hold a nugget of marijuana that you will light while sucking on the side hole, you have transformed that innocent apple into contraband. Possessing it could earn you penalties ranging from a fine (up to $500 in Texas, where I live) to a jail sentence (as long as a year in Pennsylvania, where I grew up).

In both Texas and Pennsylvania, drug paraphernalia is defined by intent. A hookah is legal as long as you plan to smoke tobacco in it, while a briar pipe is illegal if you plan to smoke marijuana in it.

For manufacturers and distributors of drug paraphernalia, criminal liability under state law generally depends on knowledge: Did the seller know (or should he have known) his merchandise would be used to consume illegal drugs? Those "for tobacco use only" signs in head shops are meant to maintain a pose of ignorance.

That pose will not help merchants much under federal law, which according to the Supreme Court relies on an "objective" definition of paraphernalia, based on "a product's likely use," as opposed to a "subjective" definition, based on "the defendant's state of mind." Online sellers of equipment that could conceivably be used to consume cannabis nevertheless prefer caginess to candor.

VaporNation, based in Torrance, California, describes its main product line as "personal devices that heat materials at temperatures just below the point of combustion, extracting the flavors, aromas, and effects of herbs and waxes with much less smoke." The company, which in addition to vaporizers carries grinders, containers, glassware, and water pipes, does not specify what sort of "herbs and waxes" it has in mind, which is probably for the best. Although marijuana accessories, like...