(A) This subchapter does not apply to the following:
(1) Items marketed for use in the preparation, compounding, packaging, repackaging, labeling or other use of cannabis or a controlled substance as an incident to lawful research, teaching or chemical analysis and not for unlawful resale;
(2) Items marketed for, or historically and customarily used in connection with the planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, inhaling or ingesting of tobacco or any other lawful substance;
(3) Items listed in § 74.03 which are marketed for decorative purposes, when the items have been rendered inoperative or incapable of being used for any illicit purposes prohibited by this subchapter; and
(4) Items exempt under this section include, but are not limited to, garden hoes, rakes, sickles, baggies, tobacco pipes and cigarette-rolling machines.
(B) In determining whether or not a particular item is exempt under this section, the court shall instruct the jury hearing a case, that in addition to all other logically relevant factors, the jury is to consider the following factors:
(1) The nature, design, mechanics and any peculiar or unusual characteristics of the device involved;
(2) The general, customary, usual and historical use to which the item has been put;
(3) Expert evidence concerning the ordinary and customary use of the item and the effect of any peculiarity in the design or engineering of the device upon its functioning;
(4) Any written instructions accompanying the delivery of the item concerning the purposes or uses to which the item can or may be put;
(5) Any oral instructions provided by the seller of the item at the time and place of sale or commercial delivery;
(6) Any newspaper or magazine article or national or local advertising, concerning the design, purpose or use of the item involved, and the entire context in which the article or advertising occurs;
(7) The manner, place and circumstances in which the item displayed for sale, as well as any item or items displayed for sale or otherwise exhibited upon the premises where the sale was made;
(8) Whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or the dealer of tobacco products; and
(9) The existence and scope of legitimate uses for the object in the community.
(C) In determining whether or not a particular item is exempt under this section, the judge trying the case without a jury, shall in addition to all other relevant factors consider the same additional factors listed in division (B) of this section.
(1993 Code, § 74.07) (Ord. 82-4, passed 6-16-1982; Ord. passed 11-17-1982)