Canada: Canada's New Cannabis Laws Confuse Even The CBSA

Last Updated: August 2 2019
Article by Cyndee Todgham Cherniak

The use of cannabis is legal in Canada. The Cannabis Act, Bill C-45, was passed by Canada's House of Commons on November 27, 2018 and the Senate on June 7, 2018.  Bill C-45 received royal assent on June 21, 2018.  Most provisions of the Cannabis Act entered into force on October 17, 2018. However, the importation of cannabis into Canada (even for medical purposes) without a license is still ILLEGAL.

Think of it this way – what happens in Canada, stays in Canada.  There is a difference at the Canadian border – the rules are different at the border in and out.  The government has even created a pamphlet "Don't travel internationally with cannabis".

At the Canadian border (land border and airport clearance), the Canada Border Services Agency ("CBSA") will detain you and read you your rights and place you in a holding cell if you import cannabis or other illegal narcotics, illegal drugs, etc..

The CBSA may also detain you, read you your rights, and place you in a holding cell if you import goods that contain cannabinoids or have the word "CBD" on the packaging.  Many CBSA officers know that importation of cannabis is illegal.  They just have not read the provisions of the Cannabis Act to understand whether any goods are actually legal to import.  The CBSA officers on the front lines do not know all the intricacies of the legislation, which is still rather new.  So, you may find yourself in legal difficulties even when you import a product that is technically legal to import.  The new rules are confusing - even for the CBSA.

Details are important.  What is in the scope of the Cannabis Act is set out in the act.  The term "cannabis" is defined to mean "a cannabis plant and anything referred to in Schedule 1 but does not include anything referred to in Schedule 2".  It is therefore important to know what is in Schedule 2 (because these items are outside the scope of the definition of cannabis).  Schedule 2 lists the following items:

  • "A non-viable seed of a cannabis plant;
  • A mature stalk, without any leaf, flower, seed or branch, of such a plant;
  • Fibre derived from a stalk referred to in item 2; and
  • The root or any part of the root of such a plant".

This means that these items are not technically cannabis (as per the statutory definition that was passed by the Canadian Parliament) and, therefore, the provisions that prohibit the importation/exportation of cannabis would not apply (unless a different law applies).

Is industrial hemp considered to be cannabis?  According to the Industrial Hemp Regulations, the answer is sometimes "yes" and sometimes "no". You need information AND a certificate of analysis.  The term "industrial hemp" is defined in the Industrial Hemp Regulations made under the Cannabis Act to mean "a cannabis plant — or any part of that plant — in which the concentration of THC is 0.3% w/w or less in the flowering heads and leaves."

Pursuant to subsection 2(1) of the Industrial Hemp Regulations, limited derivative products (defined as a product that is made by processing only the grain of industrial hemp) are outside the scope of the Cannabis Act. Subsection 2(1) of the Industrial Hemp Regulations provides the following exemption:

A derivative, or a product made from that derivative, that is being imported, exported or sold at wholesale is exempt from the application of the Act if the THC concentration of a representative sample from each lot or batch of the derivative or product is 10 μg/g THC or less when tested at a competent laboratory using a validated test method and

a) in the case of importation or exportation, the shipment is accompanied by a certificate of analysis from a competent laboratory in the country of origin of the derivative or product that sets out the THC concentration in μg/g in the samples;

b) in the case of the wholesale sale, the outer container, other than the shipping container, or outer covering of the derivative or product is labelled, "Contains 10 μg/g THC or less — Contient au plus 10 μg/g de THC".

As a result, based on the exclusions from the definition of "cannabis" in Schedule 2 of the Cannabis Act and the exclusion in the Industrial Hemp Regulations, certain limited products are still legal at the border IF YOU HAVE THE NECESSARY CERTIFICATION.  Do not expect that the CBSA officers will know this.

Before you import or export a product that could be considered to be cannabis, industrial hemp, CBD, etc., determine whether the good is legal to import.  Have a certificate of analysis, which confirms the THC content is less than 10 μg/g THC or less.  Know how the product is made and what it is made from (e.g., non-viable seeds). Obtain the requisite certifications.  Contact Health Canada to confirm that Health Canada agrees with your analysis that the goods are legal to import.  Hire legal counsel experienced in customs law and cannabis laws to review the law as it does change.  Ask a customs lawyer to determine the H.S. tariff classification for the good you plan to import.  Ask questions!!!

If you do not ask questions and do not get answers, you may find yourself with a flag on your customs file and you will be sent to secondary inspections every time you enter Canada for 6 years.  You may even be charged under the Criminal Code and will be looking at a criminal record. If you have a criminal record, this might limit your ability to get a dream job.  You may have your NEXUS membership cancelled as the CBSA will label you as not a trusted traveler.  There are serious ramifications for not making sure that what you are importing is legal to import.

Caveat: We are not suggesting that the importation of CBD oil and isolates are legal or that it is regulated under the Industrial Hemp Regulations.  CBD oil is a complex product and those who wish to import it without a license must be cautious and ask questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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