Federal Courts Consider Pot Candy, Kiddie Bongs

For those who keep track of drug laws, it turns out to be a bad idea to manufacture pot snacks, even for sale at medical marijuana co-ops. Oh, and also, you shouldn’t be giving bong hits to your toddler.

That’s the message from a couple of recent federal rulings. On Friday, the Ninth Circuit Court of Appeals upheld the conviction of Jessica Durham, a Montana woman who had her 18-month-old daughter take bong hits, allegedly telling a police investigator “that smoking improved Michala’s appetite and left Michala lethargic and mellow — a manner she found consistent with her own experience smoking marijuana.” The circuit did overturn Durham’s five-year sentence, saying the statute governing toddler bong hits had a maximum of two years.

Kenneth Affolter, who pleaded guilty Tuesday to federal charges of conspiring to manufacture and distribute pot candy and plants, struck a deal to serve almost six years in prison. Affolter was responsible for the well-publicized operation that made Pot Tarts, Munchy Way and Trippy Peanut Butter — mimicking, as a press release from the San Francisco U.S. attorney’s office points out, brand-name snack foods.

Of course, the two cases have substantial differences. Affolter’s was a larger operation while Durham, out of frugality, a dwindling stash or some sort of age supremacy rule, had her daughter smoke resin scraped from the inside of the bong, rather than fresh pot. That was the main ground on which her lawyer challenged the conviction. Alas, the friend who reported Durham to authorities — and who photographed Michala — smoked some resin too. And she knew exactly what it was. “Based on her extensive experience as a marijuana smoker for over 20 years, she recognized the substance which Ms. Durham scraped from the inside of the water pipe as marijuana residue — that is, the burnt residue left on or in a pipe after smoking marijuana,” the opinion said.

In Affolter’s case, there was no allegation that what he was putting into the candies was anything other than top-rate. And while it’s not clear whether that would be considered better or worse than Durham’s transgression, federal agents — judging by their press statements Tuesday — took Affolter’s crime (and dental hygiene) very, very seriously.

“While real candy may give you cavities, these individuals know that marijuana candy can get you jail time,” stated DEA Special Agent in Charge Javier F. Pena.

Justin Scheck

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