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Can I open a smoke shop and have the word "marijuana" included in the store name?

Los Angeles, CA |

Can I open up a smoke shop online and at a store in Washington and or Nevada with the wording "marijuana" included in the name of the smoke shop? I would be selling in store and online. Would this be illegal? I see many online stores that sell pipes, bongs, and other items for smoking. Just wondering before I waste any money.

Attorney Answers 3

Posted

Our society is going through a state of transition regarding marijuana. Be aware that state law and federal law sometimes contradict each other. When that happens, federal law usually trumps over state law. The Controlled Substances Act of 1970 lists marijuana as prohibited.

In 2005, Gonzales v. Raich, the US Supreme Court held that federal laws banning marijuana throughout the United States override any state law that attempts to legalize it. This means that you could face criminal penalties in federal court despite state permission. The current presidential administration has indicated that they are not as concerned about going after people who hold state marijuana licenses as previous presidents - however I have heard that the arrests and prosecutions continue. Our society is likely to change in the near future, but I cannot honestly tell you that selling marijuana is 100%. Are there people operating marijuana businesses openly? Yes. But as a lawyer it is my duty to inform you that it carries a risk of criminal prosecution and asset seizure.

Thus, because federal law prohibits marijuana, the safest choice is to avoid the marijuana business.

My advice is directed at California cases since that is where I am licensed; otherwise all advice is to be taken only as an answer to a hypothetical California matter. Advice given here does not create an attorney-client relationship. My comments should not be considered a replacement for brining more detailed facts about your issue to a lawyer who practices in the area of law in question.

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Justin Victor Alper

Justin Victor Alper

Posted

Even if you are not selling marijuana itself, I advise you to avoid using the word "marijuana" in your business. I'm just trying to lean toward the safer route for you.

Robert Lee Marshall

Robert Lee Marshall

Posted

Note that the question talks about online sales, which could be considered a form of interstate commerce, which would definitely bring it under federal law. Tommy Chong did nine months in federal prison for his part in online bong sales. By using the term "marijuana" in the name, the seller would lose any possible argument that he didn't specify what someone might smoke in his wares (not that I've ever heard of anybody smoking tobacco in a bong). The question also asks about opening stores in Nevada and Washington, where the laws may be very different than California Health & Safety Code 11364.5, which regulates the sale of drug paraphernalia.

Posted

The First Amendment protects your right to free speech, and I believe it would not be illegal to use the word "marijuana" in a store name or advertisement. But the wording will probably attract law enforcement as well as customers. You do not say whether you will actually sell marijuana, though it is easy to imply that. I think you will soon be visited by the police and federal government, who will want to know what you are selling, and who will arrest you and close you down if they believe what you are doing violates the law.

The response I have provided is general in nature, and does not create an attorney-client relationship. My practice is based in Rhode Island, and the law and practice in other states or jurisdictions may be different.

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Robert Lee Marshall

Robert Lee Marshall

Posted

Note that the question talks about online sales, which could be considered a form of interstate commerce, which would definitely bring it under federal law. Tommy Chong did nine months in federal prison for his part in online bong sales. By using the term "marijuana" in the name, the seller would lose any possible argument that he didn't specify what someone might smoke in his wares (not that I've ever heard of anybody smoking tobacco in a bong). The question also asks about opening stores in Nevada and Washington, where the laws may be very different than California Health & Safety Code 11364.5, which regulates the sale of drug paraphernalia.

Posted

The answer is you probably can, but at your own risk, as your store (and you) may be seen as attempting to sell or indeed selling marijuana. I think doing so would be a very bad decision if you are worried about wasting your money. Your store will attract attention from those you least want attention from - both federal and state law enforcement. Not a wise idea.

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