Can a Louisiana town require stores to hide displays of items that could become drug paraphernalia?

Plain-English summary

Greenwood asked whether it could require a convenience store to place certain products behind a counter or barrier. The store displayed bongs, grinders, rolling papers, and other items, some with marijuana leaves on the packaging. The town was concerned about children seeing them, even though the items could have lawful uses.

The Attorney General reported that the state Office of Alcohol and Tobacco Control had no rule governing where such items must be displayed. The opinion found no statute or other authority allowing Greenwood to impose its proposed display restriction on items that might become drug paraphernalia upon additional factual findings. It also warned that a rule based on the message conveyed by the display could raise First Amendment issues. The office expressly declined to decide the constitutional question.

What this means for you

Greenwood officials

For the display restriction described in the request, the opinion found no authority for the town to require the store to move these items behind a counter or barrier. It confined its answer to display of items that might become drug paraphernalia upon additional factual findings.

Retailers selling the described products

The opinion treated the products described in the request as items that may have legal uses and addressed their display before drugs had been introduced into them. It did not resolve the legality of any particular sale or transaction involving drug paraphernalia.

Common questions

Q: Can Greenwood require a store to keep bongs and rolling papers out of sight?
A: The Attorney General found no statutory or other authority for the town's proposed display rule on the facts presented.

Q: Did Louisiana's alcohol and tobacco regulator have a display rule for these items?
A: According to the opinion, the Office of Alcohol and Tobacco Control said it had adopted no rule on this specific display issue and could not regulate the described items merely because they might later be used with drugs.

Q: Did the Attorney General rule that Greenwood's proposal violates the First Amendment?
A: No. The opinion identified a potential issue with regulating displays based on their content and expressly declined to decide constitutionality.

Background and statutory framework

The request referred to La. R.S. 40:1021 and asked only about regulation of displays of items that might qualify as drug paraphernalia on facts not established in the request. The opinion did not analyze the criminal penalties for transactions involving drug paraphernalia. It cited Reed v. Town of Gilbert for the rule that speech regulation is content based when it applies because of the subject or message expressed, while leaving the proposed town rule's constitutionality open.

Citations and references

• La. R.S. 40:1021, identified in the request as part of the drug paraphernalia law.
• Reed v. Town of Gilbert, 576 U.S. 155 (2015), cited on content based speech regulation.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/24-0073

Original opinion text

STATE OF LOUISIANA
DEPARTMENT OF’ JUSTICE
OFFICE 01 IFII ATTORNEY GENERAl.
P.O. BON 9-OO5
BAroN RoLuE, LA
7050-1-9005

Liz ML!RRILL
AI’TORXEY GENERAL

June 6, 2024
OPINION 24-0073

22-2 DRUGS — Narcotics, etc.
Honorable Brad Edwardes
La RS 401021
Mayor of the Town of Greenwood
. . .

9381 Greenwood Road
Greenwood cannot impose regulations on displays of
items that may be consdered drug paraphernalia when drugs have G reenwood LA 7 1 033
,
not been introduced into those items. In addition, there may be First
Amendment issues with the Towns proposed regulatory scheme.

Dear Mr. Edwardes,

Your request for an Attorney General’s Opinion on behalf of the Town of Greenwood has been assigned to me for research and reply. In your request, you seek this office’s opinion with regard to the town’s right to regulate the display of items that could be considered drug paraphernalia within the town limits of Greenwood.

After discussion with you and other members of your office, it appears that the issue is that there is at least one convenience store in your town that sells items that could be considered drug paraphernalia pursuantto La. R.S. 40:1021 This convenience store sells .

various itenis with marijuana leaves on the packaging, including bongs, grinders, and rolling papers, among other things. However, the Chief of Police in the Town of Greenwood has advised you that the items are technically not drug paraphernalia until drugs have been introduced into them. Nevertheless, the town is concerned about young children seeing these displays and would like to be able to impose regulations to require these displays to be kept behind a counter or a barrier, even though the items may have legal uses.

This office contacted the Louisiana Office of Alcohol and Tobacco Control (ATC), which has advised that, because these items are innocuous on their own, and they are only a concern when technically introduced with drugs, the ATC cannot regulate those items or how or where they should be displayed. Furthermore, the ATC informed us that it has not promulgated any rules or regulations on the specific issue you have raised about regulation of display of items that could be considered drug paraphernalia. Moreover, this office has found no statutory or other authority that would allow the Town of Greenwood to establish its own regulations regarding the display of these items.1

1 Your request acknowledges that certain laws prohibit transactions involving drug paraphernalia and the criminal penalties associated therewith. See, e.g., La. R.S. 40:1021, et seq. However, your request

Page 2

OPINION 24-0073
Honorable Brad Edwardes
Page 2

As a final matter, this office notes that there are potential First Amendment issues with your attempts to regulate the display of these items in the content-based manner you have described above. A regulation of speech is facially content-based under the First Amendment if it “target[s] speech based on its communicative content”—that is, if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town ofGilbert, Ariz., 576 U.S. 155, 163 (2015). The commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Id. citing, Sorrell v. IMS Health, Inc., 564 u.s. 552 (201 1). The First Amendment requires heightened scrutiny whenever the government creates regulation of speech because of disagreement with the message it conveys. See Ward v. RockAgainst Racism, 491 u.s. 781, 791 (1989). While we call your attention to the potential First Amendment issues, we express no opinion on the constitutionality of your planned regulatory scheme in that regard. We trust that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

LIZ MURRILL
ATTORNEY GENERAL

BY:____
CHIMENE 5T. AMANT
A55I5TANT ATTORNEY GENERAL

LM:C5

expressly is limited to the question of regulation of display of items that could potentially be—upon additional factual findings not present here—drug paraphernalia, and this opinion responds to that limited question.