The fact that there is case-by-case evaluation is a good thing, but equating e-cigarettes and drug paraphernalia is a questionable decision even with that in mind. Yes, some people do vape marijuana, whether in the form of dry herb or oils, but does that represent the majority of vapers? It’s incredibly unlikely to be the case. The decision also raises a lot of questions about what else should be considered drug paraphernalia by the schools: you could, for example, use a tobacco pipe to smoke marijuana, so are all pipes drug paraphernalia? What about cigarette papers and rolling devices? You can snort cocaine through a dollar bill, so is money drug paraphernalia?
If we were having a rational discussion, it’s clear that none of these things are drug paraphernalia. In fact, the U.S. Customs and Border Protection website specifically answers the question about rolling devices: if there’s residue of drugs on it, then yes it’s classed as paraphernalia. It might be debatable in some cases, but the Code of Federal Regulations definition is also provided:
“The term ‘drug paraphernalia’ means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting … or otherwise introducing into the human body a controlled substance.” (our italics)
Clearly, the definition hinges on “primary” use of the product, in which case the vast majority of e-cigarettes obviously do not qualify. But this is the school system we’re talking about, and some school policy documents available online don’t make such a distinction. One addressing rules for student athletes even includes rolling papers as an example of drug paraphernalia.
For any sensible policy, the primary use is all that matters. If you happen to be caught with one of the many vaporizers primarily intended for marijuana (list courtesy of r/vaporents), then treating it as paraphernalia is understandable. Similarly, if you’re caught with an e-cig covered in marijuana residue, you’re obviously using it as paraphernalia. But for a normal e-cig, probably accompanied by a bottle of e-liquid, the primary use is clearly not to vape pot.
But that didn’t stop a teen in New Jersey being asked to submit a drug test after being caught with her older brother’s e-cigarette. Her mother, Kathleen Leone, refused to allow her to take the test, and now her daughter has “suspended for refusal to take a drug test” on her school record, which could have an impact on her chances of getting into college. Was there any reason to think it was being used for drugs? Probably not.
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