William Stoianoff D/B/A the Joint Effort, Plaintiff-Appellant/cross-Appellee v. State of Montana, Defendants-Appellees/cross-Appellants

This appeal involves a pre-enforcement facial challenge to the constitutionality of the Montana Drug Paraphernalia statute, M.C.A. §§ 45-10-101 et seq. The district court for the District of Montana found unconstitutional that portion of the “head shop” statute prohibiting the advertising of drug paraphernalia and upheld the constitutionality of the remainder of this statute. We vacate that portion of the district court’s decision striking down the advertising prohibition, M.C.A. § 45-10-106, because the plaintiff lacks standing to assert this claim, and affirm the other portions of the district court’s opinion, 529 F.Supp. 1197 .

I. BACKGROUND

Montana enacted its drug paraphernalia law on April 21, 1981, to take effect on October 1, 1981. The Montana Act (“the Act”) is patterned closely after the Model Drug Paraphernalia Act (“the MDPA” or the “Model Act”) authored by the Drug Enforcement Administration of the United States Department of Justice. State and local regulation of the sale of drug paraphernalia recently has become a widespread practice. At least 25 states have adopted legislation that to some extent reflects the provisions of the MDPA.

The MDPA and its progeny were…