Canada: Can Canadians In The Cannabis Industry Travel To The U.S.?

Last week, the United States clarified its position on whether Canadians involved in the legal cannabis industry will be allowed to enter the U.S.

While the clarification is good news for some involved in the Canadian cannabis industry, users of legal cannabis and Canadians seeking to enter the U.S. for business purposes related to the legal cannabis industry still face hurdles.

Can Canadians involved in the cannabis industry travel to the U.S.?

On September 13, 2018, U.S. Customs and Border Protection gave anyone connected to the legal cannabis industry cause for concern. They released a statement that Canadians working, investing or otherwise participating in the legal cannabis industry in Canada or the U.S. could be found inadmissible and face lifetime U.S. travel bans. The language used in this statement appeared to extend to any company or individual that could be seen as aiding, abetting or assisting in the proliferation of cannabis. This was based on the idea these individuals are trafficking in what is still a controlled substance under federal U.S. law.

On October 9, 2018 the U.S. clarified its position, now stating that:

So, does this mean than anyone working or connected to the Canadian cannabis industry can enter the U.S. freely? The answer depends on the reasons for travel.

Canadians involved in the legal cannabis industry can enter the U.S. for reasons unrelated to the industry.

The statement that Canadians "working in or facilitating the proliferation of the legal marijuana industry in Canada" will generally be admissible to the U.S. is good news for employees, contractors and investors in the industry. These individuals will generally no longer face the threat of a lifetime ban from entering the U.S. simply because of their involvement in the industry in Canada. This is so long as the reason for the travel is unrelated to the industry – a vacation, for example.

While Canadians going to the U.S. for a vacation should face few difficulties, Canadians entering the U.S. for reasons related to the cannabis industry may still face inadmissibility issues and possible travel bans.

Because U.S. border officers will have to determine the reason for travel, anyone involved in the cannabis industry in Canada should expect additional questions when entering the U.S. The more connected a traveller is to the legal cannabis industry, the greater the chance he or she could be found as travelling for a reason that is related to that industry.

Canadians involved in the legal cannabis industry face risks if travelling for business.

While vacation travel should not be problematic, Canadians "coming to the U.S. for a reason related to the marijuana industry," can still be found to be inadmissible to the U.S. As a result, Canadians involved in the legal cannabis industry should carefully determine their need to travel to the U.S.

Before entering the U.S., Canadians involved in the cannabis industry need to determine if they are entering the U.S. for "a reason related to the marijuana industry." Is travel to the U.S. for a meeting with a prospective U.S. investor, supplier or service provider "a reason related to the marijuana industry"? Is travel to the U.S. to interview a prospective employee for a job in the industry in Canada "a reason related to the marijuana industry"? Entering the U.S. for these and other related purposes may be a "reason" that could see the Canadian business traveller risk being banned from the U.S.

Canadians that are heavily involved in the legal cannabis industry may have increased difficulty in establishing that their travel is not related to the marijuana industry. Further, because the current policy uses the discretionary wording "will generally be admissible" when travelling for an unrelated reason, there will always be some limited risk on all travel to the U.S.

Canadians travelling to work in the U.S. cannabis industry will face risks.

Canadians seeking to enter the U.S. to work in the legal cannabis industry or provide services to cannabis companies in the U.S. may still face travel bans – even if cannabis is legal in the state to which they are travelling.

Employers should not send any employee or senior executive to the U.S. for any reason related to the cannabis industry. Doing so creates a risk of inadmissibility findings and travel bans for those employees.

Further, it is important to note that the U.S. announcement applies only to individuals participating in the legal cannabis industry. As a result, Canadians who work outside the legal industry will not be covered.

Canadian cannabis users also face risks travelling across the border.

The U.S. announcement does not cover cannabis users.  Users of legal cannabis may still face travel bans to the U.S. even if they comply with all Canadian laws with respect to use of cannabis.

While employees, contractors and investors in the cannabis industry may now be allowed to travel to the U.S. for vacation and leisure purposes, if these individuals are also users of cannabis, they face a potential travel ban as consumers of cannabis products.

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.