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Brandon M.
Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12573
Experience:  Attorney experienced in numerous areas of law.
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i live in Pharr TX and im planning to open up a smoke shop

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i live in Pharr TX and im planning to open up a smoke shop and was wondering if i could sell incense that does not have the banned chemical in it and pay taxes on it so i wont run into trouble with the law?

Brandon M. :

Hello there.

Customer:

hey whats up buddy

Brandon M. :

Hi, thank you for your question.

Customer:

no problem just trying to get some advice before starting up my own buisness

Brandon M. :

Your question is pretty common for your business. The laws are constantly evolving in this area, and the question of what is and isn't legal to sell in a smoke shop can be tricky. So I would first recommend that you make sure that you are up to date on what chemicals are and are not banned before purchasing or selling any product.

Customer:

becuase many ppl dont realize what laws are and how theres ways to follow the law and still keep doing good buisness

Brandon M. :

That said, smoke shop sellers do not run into problems for selling "incense". "Incense" is a very broad category of products, some legal and some illegal.

Brandon M. :

The question for the purchaser/seller is always going to be whether the particular incense purchased or sold contains illegal chemicals.

Customer:

well i already talked to a wholesalers and there stuff is 100% free of the banned chemicals and they have toxicology reports available on there products

Brandon M. :

That's good. The concern in Texas is not selling "incense". The concern is selling incense with banned chemicals, such as salvia.

Brandon M. :

Does that make sense?

Customer:

and the other concern is incense getting into the hand of minors... but i would enfore that really well if i were too open it up... like having a security outside asking for ID.....

Customer:

so if i have banned chemical free incense in my shop and cops decide to raid me am i going to jail or with the toxicology reports is enuff to get them off my back or im gonna have to battle them in court or whats up

Brandon M. :

Naturally, the nuances of every situation are different, so none of this information should be relied upon as complete or advice without consulting with counsel in person. But that said, sale to minors is a challenge for any shop that sells regulated substances--whether you're a smoke shop, a bar, or a gas station.

Brandon M. :

What matters is what is actually being sold, not what is in a toxicology report. If you are selling cocaine but have a toxicology report saying that the substance is harmless and legal, you're still going to prison.

Brandon M. :

Well, that's actually not completely accurate. If you didn't realize that you had cocaine in your possession, there are some defense arguments that could be raised:-)

Brandon M. :

The point, however, is that you don't want to sell anything that you believe could contain a banned substance.

Customer:

and how can i find out if the product doesnt have the banned chemicals.... i mean outside in the bag it says DEA compliant and 50 state legal

Brandon M. :

The only way to know if an incense product contains banned chemicals is to examine each individual ingredient and check those against the laws of the federal and state government. It does worry me a bit that they're advertising "DEA compliant and 50 state legal"... you don't see that wording on a milk carton, which suggests that they may be walking a fine line. There are several synthetic drugs that are at various stages of being outlawed, but the law has not "caught up" yet with the drugs because they are new.

Customer:

i heard theres a group of incense retailers that plan on figthing this incense ban saying that cigarettes and alcohol kill way more ppl than incense and thats legal....

Customer:

which in a sence is true... there are way more death due to tobacco & alcohol products then this incense.... plus outlawing it will only push it on the black market dont u think?

Brandon M. :

Well, that is the question, isn't it? :-) Educated and experienced people with the best of intentions disagree on this. You have men like Milton Friedman, nobel prize winning economist, who firmly advocated for legalizing all drugs. You have people of equal stature advocating for the opposite. Banning and legalization have pros and cons. I can personally see both sides of the issue, so I'm glad that I'm not in a position where I have to make a decision on legality.

Brandon M. :

Does that make sense?

Customer:

well sorta.....

Customer:

but im still confused on whether is it ok rigth now that the best hasnt gone fully in effect.... that mainly the answer im looking for

Brandon M. :

Is there a specific ingredient that is in the incense that you are concerned about?

Brandon M. :

Basically, I can say that incense is not illegal in Texas, but there are some chemicals that can be in incense that would make it illegal in Texas. So the chemicals have to be checked individually if there is a specific concern. If you have a concern about a specific chemical, I am happy to check if it is currently legal in Texas.

Brandon M. :

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