Photo by Rick Geary

Since it’s not in the form of plant material, you seem to have skated around the law.

Dear Matthew: Here’s a question that I have considered since high school, have done extensive research on, have asked law enforcement officers about, and have received many different answers to. Is it illegal to possess and/or sell balloons filled with marijuana smoke? I need to know this because I would never do anything illegal. — Lance R., Whereabouts Unknown

(ATTORNEY GENERAL’S WARNING: Contains information that may cause incarceration.) Oh, get serious, man. What you really mean is you don’t want to be arrested. Well, same here — so even though the following smells like a duck, quacks like a duck, and follows you around the park begging for bread like a duck, it’s not a duck. Or legal advice. Only a bona fide lawyer can dispense that. If one day you’re jammed up by the fuzz, forget you ever heard of me. My attorney and I are already having trouble recalling your name.

I posed your little scheme to a sampling of keen legal minds, checked with the state attorney general’s office, perused the state health and safety codes, and consulted a criminalist for scientific details, and near as I can tell, you’d be breaking no existing marijuana sales or possession laws by selling smoke. I’m sure when you open your little shop in Seaport Village, you’ll be eyed by a gang of cops just itching to slap the cuffs on you. But if they do, the D A. may not be happy to see the case come across his desk.

Marijuana sales and possession laws all require evidence of some measurable amount of the plant itself. Marijuana smoke, of course, contains the active ingredient THC, and the presence of THC in your balloons could be established in a lab by capillary gas chromatography. And gasses (the balloons’ contents) can be weighed. So with enough analysis, it’s theoretically possible to quantify the THC in your inventory. But since, strictly speaking, it’s not in the form of plant material, you seem to have skated around the law. There’s a chance you might be arrested for selling “paraphernalia”; balloons are specifically listed in the health and safety codes as potential drug gear. Balloons full of identifiable marijuana smoke sound like drug paraphernalia to me. But that’s just speculation.

There’s really no final answer to your question, because the issue of selling smoke, as far as I have determined, has never been tested in court. You might run up against an eager beaver D.A. who wants to make the argument that the intent of the marijuana laws is to keep people from coming under the influence of the drug, therefore the physical form doesn’t matter. My sources considered that a pretty shaky argument, but you’d still have to be arrested and hauled into court in order to prove you’re right. So until you’re willing to put your entrepreneurial butt on the line, we won’t know for sure. But whatever the outcome in court, our industrious officials in the Sacramento Home for the Elected will certainly hop on the issue and scribble away at the new “Lance Law,” prohibiting the sale of narcotic smoke.

Since balloons gradually leak their contents, you have some interesting inventory problems, but that also might work in your favor when it comes to evidence. By the time your balloons arrive at a lab, there’s no telling whether there would be enough THC left on the inside surface of the balloon to identify. And don’t forget — America being the capitalistic wonderland it is, with our charming penchant for taking a small idea and force-feeding it to grotesque proportions — you’re sure to inspire flashy competition. Crystal, hash, crack, heroin, PCP—all the smokeables. I’m tempted to suggest you apply all that brain power to getting a real job, but you have a pretty intriguing proposition. Anyone with additional thoughts (preferably, informed legal thoughts) is invited into the discussion.