Lifetime Ban For Crossing the U.S. Border with CBD Oil Reversed

Written on Behalf of Affleck & Barrison LLP

The United States Customs and Border Patrol has reversed its decision to ban a Canadian woman entry to their country for her lifetime after United States border protection agents discovered cannabidiol (CBD) oil in her backpack.

WHAT HAPPENED?

According to reports, the woman, a 21-year-old Ontario University student who wants to remain anonymous, was pulled aside for a secondary check when she attempted to cross the border into the U.S. at Blaine, Washington in August, 2019.  She was travelling to a friend’s cabin.  The woman was asked if she had any “leafy greens”, to which she responded “no”.  

The woman told CBC News:

I said no because, to me ‘leafy greens’ is like marijuana, the actual bud, things that you smoke, recreational drugs.  I use CBD daily and it’s not psychoactive, it can’t get me high at the dosage that I’ve been told to take it at.

The woman was searched by border patrol and a bottle of CBD oil was found in her backpack.  She admitted that she knew that joints were prohibited at the border and there were many signs warning travellers not to enter the U.S. with such substances.  However, she believed that it was permissible to travel with CBD oil as she did not realize the same rules applied to it and as the oil is legal in both Washington state and British Columbia.

CBD oil is a non-psychoactive product of the cannabis plant, which is used by many to help regulate bodily functions, including pain.  It has been reported that the woman uses CBD oil to treat the painful side effects of scoliosis (a condition wherein the spine twists and curves to the side). 

The woman received a $500 US fine for not disclosing that she was carrying CBD oil, she was fingerprinted and she was denied access to the U.S.

In order to gain admission into the U.S., the woman must apply for a special waiver through a new online portal called e-SAFE, which will cost $600.  The U.S. government also requires a criminal record check from the RCMP, letters of reference, a letter of remorse for past wrongs, proof of employment and documentation detailing an individual’s residence and work history.

DECISION REVERSED

Late last week, the woman learned that the United States had reversed their order banning her from entering the U.S. for her lifetime and she would not need to apply for a waiver.  No explanation was given to explain this surprising decision.

In an email to CTV News Vancouver, U.S. CBP spokesperson Jason Givens (“Givens”) advised that Customs and Border Patrol management reviews all cases in which “travellers are deemed inadmissible”.  According to Givens:

In this particular case, management determined that it did not meet the terms of inadmissibility.  In some instances, decisions about admissibility may be changed upon further review and presentation of additional information, verification of further evidence, etc.  It is important to note, however, that all cases are unique and travellers are strongly encouraged to not attempt to cross the border with marijuana and products derived from marijuana.

CANADIAN BRETT HEUCHERT ALSO GIVEN A LIFETIME BAN

In early August, 2019, Brett Heuchert, a Canadian citizen living in Japan landed at Seattle’s Sea Tac International Airport from Tokyo.  He was randomly selected for additional screening.  U.S. Customs and Border Protection agents searched his bags and found two bottles of CBD oil.  They suspected that the oil contained tetrahydrocannabinolin (also known as THC, the psychoactive constituent of cannabis)  After testing, it was determined that one of the two bottles had tested positive for THC (the psychoactive agent found in marijuana).  Heuchert believed that he could bring the CBD oil across the border because marijuana was legal in the state of Washington.

Heuchert was given the choice of either being deported back to Japan or to Canada.  The CBD oil was confiscated and he was issued a $500 US fine and a lifetime entry ban to the U.S. 

Heuchert was deported to Canada and the border agents returned the bottle of CBD oil that tested negative for THC.  When he arrived at Vancouver International Airport, Canadian Border Services Agency agents detained him and confiscated his bottle of CBD oil.  However, he was not arrested or charged. 

CONFUSION SURROUNDING CROSSING THE BORDER WITH MARIJUANA

According to CBC News, thousands of Canadians have been denied entry to the U.S. for admitting that they have smoked marijuana once in their lives. 

Although some U.S. states have legalized marijuana, cannabis possession remains a federal criminal offence and a controlled substance under U.S. federal law.  The U.S. border is governed by federal law.  Thus, travellers are prohibited from bringing cannabis or any related products across the border. 

According to Washington state immigration lawyer Len Saunders, who represents both individuals facing a lifetime ban from the U.S.:

There seems to be a lot of confusion with Canadians entering the U.S. with regards to CBD and THC and all the derivatives from marijuana.  From my experience, if anything is coming from the marijuana plant, even it it’s an oil or a gummy candy, it seems to be grounds not only for inadmissibility and fines…but also a lifetime ban. …  Even though she made an honest mistake, if the officers deem that she has a controlled substance with her, and she admitted to it, then she’s inadmissible for the rest of her life.  Even if she gets a waiver approved, she’ll still have to go through a renewal every year, two years or five years.

It is recommended that all travellers leave their cannabis products, including those that contain THC or CBD, at home.  The Canada Border Services Agency has a new cannabis slogan, which reads “Don’t bring it in.  Don’t take it out.” 

If you or a loved one have been charged with a drug related charge or have any questions concerning your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.