It comes as no surprise that several Canadian cannabis company employees and investors will be traveling to the United States this week to attend the largest cannabis industry conference in the world, MJBizCon, in Las Vegas. The conference lists several Canadian companies among its speakers and will cover a variety of topics including investment, branding and an assessment of Canada’s first month of legalization, but for those wishing to cross the border into the U.S. for the conference, there are additional considerations that must be taken into account.

On October 9, 2018, United States Customs and Border Protection (CBP) revised its Policy Statement on Canada’s Legalization of Cannabis and Crossing the Border (the “Revised Statement”). Prior to this date, CBP had taken the position that merely being an employee (or an investor) of a legal cannabis business in Canada could result in inadmissibility under Section 212 of The Immigration and Nationality Act. See INA §212(a)(2)(C).

INA §212(a)(2)(C) permanently bars an individual if a CBP officer has reason to believe that he or she is an illicit trafficker in a controlled substance, or a knowing assister, abettor, conspirator or colluder in illicit trafficking. Prior to the Revised Statement, there were already a number of reported cases of employees and investors of Canadian cannabis businesses receiving lifetime bans under INA §212(a)(2)(C). Although these cases appeared to be limited to ports of entry on the West Coast, they demonstrated that employees and investors of Canadian cannabis companies were being banned as illicit traffickers.

The Revised Statement was welcome news for employees and investors of Canadian cannabis companies as it opened up the possibility of travel to the U.S. once more, but with a very import caveat. The current position taken by CBP is as follows:

A Canadian citizen working in or facilitating the proliferation of the legal cannabis industry in Canada, coming to the U.S. for reasons unrelated to the cannabis industry will generally be admissible to the U.S. However, if a traveler is found to be coming to the U.S. for reason related to the cannabis industry, they may be deemed inadmissible.

The Revised Statement confirms that employees of Canadian cannabis companies should be admissible if their reasons for coming to the United States are “unrelated to the cannabis industry.” This clearly includes traveling purely for vacation (for example, visiting with family) and even business visitor activities that were completely unrelated to the cannabis industry.

However, although the Revised Statement was a step in the right direction, CBP’s current stance means that someone can be barred merely for visiting a U.S. investor in his or her Canadian cannabis company or, you guessed it, attending a cannabis conference in the United States such as MJBizCon.

On October 25, 2018, the Canadian Press reported that they had received an email from Stephanie Malin, CBP Branch Chief for Northern/Coastal Regions, which stated the following:

If the purpose of travel is unrelated to the cannabis industry such as a vacation, shopping trip, visit to relatives, they will generally be admissible to the U.S. However, if they are coming for reasons related to the industry, such as the conference… they may be found inadmissible.

This statement by Ms. Malin in an ominous reminder that for Canadians wishing to come to the U.S. for conferences such as MJBizCon, there is a risk that you may be denied entry.

If you want to hear more about this issues, Lane Powell’s own Dustin O’Quinn and Sativa Rasmussen will present a Continuing Legal Education Society of British Columbia webinar on Tuesday, November 20, titled “The U.S. Border After Cannabis Legalization in Canada.” The presentation will start at noon PST and cover:

  • U.S. immigration law and how it’s impacted by some states’ legalization of cannabis,
  • Cross-border transactions to the U.S.,
  • Overview of U.S. policies that affect Canadians, and
  • Potential forms of relief.

The event is intended for lawyers who represent clients involved in the cannabis industry or clients who conduct business with cannabis-related industries.

For more information or to register for the conference, please visit the event website.

Just in case you missed it, Rep. Earl Blumenauer (D-OR) sent a memo to Democratic congressional leaders on Wednesday outlining a comprehensive plan to legalize marijuana in the United States as soon as 2019. You can read the full text here, and we couldn’t have said it better ourselves. It’s hard to overstate the importance of the comprehensive federal marijuana reforms outlined by Rep. Blumenauer (up for reelection next month — Lane Powell endorses civic engagement), which would address banking, taxation, safe access for veterans, criminal justice reform, states’ rights and scientific research. With Canada positioning itself recently as the world leader on sensible cannabis policy, the question is — why not us?

I am thrilled to announce that we have added three well-recognized industry leaders to our Cannabis Team roster. Joshua Ashby and Sativa Rasmussen joined the firm on September 4 from Ashby Law Group PLLC in Seattle, and Ben Pirie joined from 7 Point Law in Portland in June. The experience these three bring with them strengthens our ability to help legal cannabis businesses navigate the complex regulatory environment in both Washington and Oregon and achieve long-term success.

Ashby will assume the role of Co-Chair of the Team, serving alongside Justin Hobson. He is one of Washington’s most experienced recreational marijuana transactional lawyers and authored the seminal guide on the state’s cannabis industry, Lost in the Weeds. Josh advises cannabis businesses on general corporate, mergers and acquisitions, and real estate transactions while guiding clients through the industry’s highly regulated landscape. He received his J.D. from Seattle University School of Law, and his B.S., summa cum laude, in Aeronautics from Embry-Riddle Aeronautical University.

When asked why Lane Powell was the right fit, Josh commented:

The interdisciplinary nature of the firm’s Cannabis Team allows us to provide a better client experience by offering a holistic approach to address all of our clients’ legal needs from trademark procurement and brand protection to employment practices and beyond.

Sativa advises cannabis businesses on corporate governance and contract law, internationally and domestically. She also represents businesses in highly regulated industries with their transactional, regulatory and compliance needs. Sativa has extensive experience negotiating transactions, drafting documents, and communicating the needs of her clients to the Washington State Liquor and Cannabis Board and other administrative agencies. She received her J.D., cum laude, from Seattle University School of Law and B.A.s in Political Science, magna cum laude, and Criminal Justice, magna cum laude, from Washington State University.

Ben counsels cannabis businesses on a wide range of corporate and regulatory needs, including contracts, entity formation and governance, intellectual property, mergers and acquisitions, and compliance. He is active in engaging with state and local governments in order to ensure common sense, business-friendly regulation of the cannabis industry. Ben received his J.D. from Lewis & Clark Law School and a B.A. in Art History and Chemistry from Duke University.

Our interdisciplinary team provides a myriad of legal services such as compliance strategies, business transactions and solutions, real estate, plant and process patents, dispute resolution, sophisticated state and federal tax counseling, and more. We also maintain close ties with regulators and anticipate the impact of proposed rule changes to our clients’ businesses, and regularly share those updates here on the blog. Learn more about our team.