New Jersey Section 2C:36-4 – Advertising to promote sale, crime of fourth degree

New Jersey’s Drug Paraphernalia Advertising Law: What You Need to Know

New Jersey has a law, 2C:36-4, that makes it illegal to advertise drug paraphernalia in certain ways. This law, which makes violating it a fourth degree crime, is meant to discourage the sale of items used for illegal drug use. But what exactly does it prohibit, and what are the implications? This article will break it down in simple terms so you understand the law’s reach.

What Does The Law Say?

The main part of 2C:36-4 says that its unlawful for any person to place an advertisement in a newspaper, magazine, handbill, or other publication if they know the purpose is to promote the sale of drug paraphernalia. That’s the gist of it – you can’t advertise drug paraphernalia for sale.

But it gets more complicated when you look at how “drug paraphernalia” and “advertisement” are defined.

Defining ‘Drug Paraphernalia’

2C:36-1 has a whole list of examples of what counts as drug paraphernalia, like bongs, roach clips, scales, and “objects used, intended for use or designed for use” with drugs. So advertising any of those items to promote selling them would be illegal.

But the law also says something can be drug paraphernalia even if it’s “traditionally intended for use with tobacco products” – for example, a pipe. So advertising pipes as multi-use or “for tobacco only” doesn’t get you off the hook if authorities think the ad’s real purpose is to promote sales for illegal drug use.

What Counts As An ‘Advertisement’?

Obviously an ad in a newspaper or magazine counts. But 2C:36-4 also prohibits advertising paraphernalia on handbills, websites, and “other publication[s].” So internet ads, printed flyers, catalog listings – basically any promotional material counts.

The law also bars “promotional material” that advocates for drug paraphernalia or “encourages use of the device” for illegal drug purposes. So even just telling people why they should buy a bong could be illegal.

What Are The Penalties?

Violating 2C:36-4 is a crime of the fourth degree in New Jersey. The possible penalties for fourth degree crimes are:

• Up to 18 months in prison
• Fines up to $10,000
• Both fines and imprisonment

So advertising drug paraphernalia can lead to serious consequences. The penalties get even worse if you have prior convictions.

What Are Defenses Or Challenges?

Fighting a 2C:36-4 charge mainly involves attacking the prosecution’s proof that your ad promoted drug paraphernalia. Defenses include:

• Your ad didn’t mention illegal drug use at all, or even hint at it. You provably marketed the item only for legal purposes.
• The item has recognized, established legal uses aside from illegal drugs. For example, advertising tobacco pipes as being for tobacco use only.
• You had no intent or knowledge that your ad could promote drug paraphernalia sales. The ad was vague and didn’t mention specific paraphernalia.
• The item you advertised doesn’t actually meet New Jersey’s definition of drug paraphernalia. For example, something like an ashtray or lighter that’s not specifically designed for illegal drugs.
• Your ad was constitutionally protected free speech. Though courts have said 2C:36-4 doesn’t violate the First Amendment.
• The law is unconstitutionally vague in how it defines drug paraphernalia. But a 1992 case upheld the definition.

So defenses exist, but often depend on the specific facts of your case.

How Does This Affect Sellers?

For sellers of items like pipes, bongs, and vape pens, the law means you must be very careful in how you market products. Avoid terms associated with illegal drugs, and give specific legal uses. Listing an item next to obvious paraphernalia in ads could show intent to promote illegal uses.

Some smoke shops have tried marketing products as “for tobacco use only” or “not for illegal drug use.” But they still get charged if officials think the ads really promote drug paraphernalia.

The safest bet may be avoiding promotional materials entirely, and only discussing intended uses in face-to-face sales conversations. But even then, how you display and sell items in your shop could be used as evidence of intent.

How Is The Law Enforced?

2C:36-4 charges often arise from investigations into smoke shops and online paraphernalia sellers. Undercover officers may purchase items, and preserved ads can provide evidence at trial.

But charges have also come from public tips to police about ads, or investigations into illegal drug use that uncover related paraphernalia ads. Online marketplaces like Craigslist have cooperated in prosecutions by providing copies of user ads.

So anyone advertising paraphernalia could face charges – not just established smoke shops and head shops.

How Might The Law Change?

Some argue 2C:36-4 is outdated, especially with marijuana legalization efforts. Paraphernalia ads for state-legal cannabis use could still violate the law. There have been attempts to update it, but they haven’t passed yet.

The law also faces ongoing First Amendment challenges arguing it’s overbroad when applied to multi-use items like vape pens. But so far courts have rejected those arguments.

For now, the core ban on advertising remains intact. But further legalization and e-cigarette trends could pressure changes in coming years.

The Bottom Line

New Jersey’s ban on promoting drug paraphernalia sales through advertising has been on the books for decades. But it continues to impact sellers and marketers, especially with expanding online ads.

The law has broad definitions of advertising and drug paraphernalia that create risk even for indirect promotions. Defending against charges requires proving lack of intent and knowledge. And the penalties can be severe.

Anyone advertising items that could have illegal drug uses should be careful to avoid any references or hints promoting that purpose. Consult an attorney if you have questions, because seemingly harmless ads could still violate 2C:36-4. While the law does face challenges, it remains in effect for now