@OldNewbie - A flower vape can be used to vape lavender and ginger. If you're concerned about getting pulled for paraphernalia wouldn't having something like ginger in your possession mitigate the concern?
Don't get me wrong....I would never take the chance unless the vape had never been used.
The statutes are written quite broadly. Case law tends to limit expansive definitions of things. I don't know of a federal case that prevents paraphernalia liability because a pipe-like device has a sticker on it saying "tobacco use only" with a small bag of tobacco tied to it.
I understand the argument and know it applies in like situations in my state. For instance, it is illegal to possess "any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot,". The "billy" meaning applies to just about any stick-like thing that could be a weapon. A baseball bat has been found to be such a billy and it has not--depending on the context. In your trunk in a bag with other sporting equipment has been found to not be a weapon while tape on the handle and under the driver's seat has been found to be one. As you're trying to build a facts and circumstances argument AGAINST you having said "billy" as a weapon by keeping a catcher's mitt tied to the butt of the bat, you still have to live in the real world.
What is the cop going to do?
If you happen to have a bat in a bag of balls and mitts and are provably on the way to a softball game and a cop determines (after a search) it is a billy and a weapon and arrests you--what happens? You go to jail and have the chance to argue in front of a judge it was a softball bat and not a billy or a weapon. You might win. However, the statute was written broadly enough to include the facts of your particular situation and give that nice officer "probable cause" to arrest. That means you won't win if you sue the officer for being wrong. (Assuming you won your criminal case.)
Paraphernalia laws are written to cover the carved out apple with some tinfoil just as much as super-digital herb heater (With lights and sounds). While it is possible that apple is going to be used to prove up gravity or be used to keep the doctor away, a cop is not going to hurt himself thinking too hard about if you might have a defense to any arrest he might make. As to IF the defense would work, it depends. One good summary of how the court might look at our vape:
https://scholar.google.com/scholar_case?case=8688167052149067906&q=Paraphernalia&hl=en&as_sdt=2003
Posters 'N' Things, Ltd. v. United States, 511 US 513 (1994)
The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the "designed for use" standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See
United States v. Mishra, 979 F. 2d 301, 308 (CA3 1992);
United States v. Schneiderman, 968 F. 2d 1564, 1567 (CA2 1992), cert. denied,
507 U. S. 921 (1993). Accordingly, the "designed for use" element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.
