Reed Smith Client Alerts

Although the United States and Canada are neighbors geographically, they are worlds apart when it comes to marijuana. While at the federal level in the United States it remains “unlawful for any person knowingly or intentionally … to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance,” recreational marijuana became legal throughout Canada last week.

Of course, as a result of legalization at a state level, there is a booming cannabis industry in the United States. Many in the United States have been carefully watching the Canadian experience, with an eye toward doing business there. In turn, at least part of the United States remains an untapped market, which may be of interest to Canadians. However, the U.S. government is not prepared to open its doors – or its borders – to the Canadian cannabis industry just yet. Far from it. As a result, physically entering into the United States from Canada may be a risky venture for those in the cannabis industry.

Authors: Michael H. Sampson Jason E. Hazlewood Zachary S. Roman

Right to enter the United States

American citizens: Regardless of their actions abroad, U.S. citizens should be able to re-enter the United States. As noted by one federal district court, the U.S. Supreme Court “has described the right of an American citizen to return to the United States from abroad as ‘absolute.’” Fikre v. Federal Bureau of Investigations, 23 F. Supp. 3d 1268, 1282 (D. Or. 2014) (quoting Tuan Anh Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53, 67 (2001)). 

Indeed, during an October 17, 2018, press conference, Christopher Perry, Director of Field Operations for U.S. Customs and Border Protection (CBP), stated that CBP officers “would not refuse a U.S. citizen’s entry to the United States” (emphasis added).

However, be careful: the right to return to the United States does not mean that a U.S. citizen will be free of liability for any involvement in the Canadian cannabis industry. Notably, it remains illegal for a U.S. citizen – or anyone else – to bring marijuana into the United States from abroad. See 21 U.S.C. § 952(a). Moreover, a U.S. citizen could also face other potential liability under the federal Controlled Substances Act, anti-money laundering statutes, and/or other statutes. Consideration of that liability is outside the scope of this client alert, which focuses on border-crossing issues. Anyone with concerns about such liability should definitely consult counsel.

One other note: Although there are limited grounds for revocation of naturalization, see 8 U.S.C. § 1451, naturalized U.S. citizens involved with the Canadian cannabis industry may be at an increased risk of adverse consequences upon their return to the United States, especially in the current political climate. For example, the Associated Press has reported that just this year, “the U.S. government agency that oversees immigration applications is launching an office that will focus on identifying Americans who are suspected of cheating to get their citizenship and seek to strip them of it.” While unrelated to the legalization of cannabis in Canada, this development is still noteworthy for present purposes. As such, a naturalized U.S. citizen considering becoming involved with the Canadian cannabis industry should certainly seek additional legal counsel.

Canadian citizens: Unlike American citizens, Canadians, like other foreign nationals, do not have an automatic right to enter the United States. For example, federal law makes inadmissible to the United States any alien who is “a drug abuser or addict.” 8 U.S.C. § 1182(a)(1)(A). It also makes inadmissible any alien “who admits committing acts which constitute the essential elements of … a violation of (or a conspiracy or attempt to violate) any law of regulation of … the United States … relating to a controlled substance ….” 8 U.S.C. § 1182(a)(2)(A).

In an October 9, 2018, statement, CBP explained that it “enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana.” It explained further: 

Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.