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As an electronic vaporizer company, can we use the words, "Dry Herbs," "Herbal," and "Wax" in our packaging and advertisements?

Long Beach, CA |

I work with an electronic vaporizer company (similar to electronic cigarettes). Some of our product offerings allow usage of dry herbs and wax (marijuana). While we are saying that this product is not to be used with marijuana, we are wondering if it is legal to use the words "Dry Herbs" "Herbal" and "Wax" on our packaging and advertisements. Other companies seem to do it, but we are unsure if it's necessarily allowed or restricted. Of course, no one says to use it with marijuana, and neither will we.

OK thank you. But just to be clear, Dry Herbs, Herbal, and Wax are in reference to marijuana products.

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Attorney answers 3

Posted

I know of no bar against the use of those terms.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Posted

I also see no reason why you can't use those terms in advertising your product.

Posted

The company you work for sells electronic vaporizers that just happen to be able to vaporize marijuana into a convenient form to be inhaled. And now you want to advertise those products using the marijuana code words "Dry Herbs" "Herbal" and "Wax." Your products are, to my mind, clearly “drug paraphernalia” under California law. See California Health and Safety Code at section 11364.5(d) (listing many items that the law deems “drug paraphernalia” – visit http://goo.gl/bqvFg ]. Even if your company’s products are not on that list, the very next section [11364.5(e)] of the law tells the courts to look to the “[n]ational and local advertising concerning” a product’s use to determine if it is drug paraphernalia. After viewing your advertising proudly associating your products with "Dry Herbs" "Herbal" and "Wax" the court will conclude your product is drug paraphernalia. Which is fine – it’s lawful to sell drug paraphernalia [in California at least]. But there are significant restrictions on how those products can be sold and I haven’t a clue if they can be sold through the interstate mail service or if other states make it unlawful to sell those products. You need to speak with an attorney who specializes in advising drug paraphernalia product manufacturers. Look at that industry’s trade journals for articles by such attorneys. Good luck.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.