Criminal Law

Banning of CBD user at U.S. border ‘ridiculous’: Neuberger

By Randy O’Donnell, AdvocateDaily.com Associate Editor

Canadians must heed warnings that even though marijuana products are legal in many states, taking them across the U.S. border is not, says Toronto criminal lawyer Joseph Neuberger.

Neuberger, a partner with Neuberger & Partners LLP, says the case of a British Columbia woman who is facing a lifetime ban from the U.S. after carrying medicinal CBD (cannabidiol) oil into Washington state is a perfect example.

“The drug laws are federal, as is the border, therefore they have jurisdiction. It’s absolutely ridiculous, but taking marijuana or related products into the U.S. is a real risk, and unfortunately can result in a person being banned from entry to that country for life,” he tells AdvocateDaily.com.

“It’s a shame, especially for a young person who is completely innocent about this and didn’t think about it because the CBD oil is for her scoliosis, which is a very serious and sometimes debilitating skeletal issue. The ban is completely disproportionate to what’s going on here.”

The CBC reports the woman, who has applied for re-entry, was pulled over for a check at a Blaine, Wash. crossing and asked by border patrol officers if she had any leafy greens in her possession.

The women told the CBC the officer did not say the word cannabis.

I said no because, to me, ‘leafy green’ 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, she told the national broadcaster.

Neuberger says he understands why the marijuana laws in the U.S. can be confusing. The recreational use of cannabis is legal in 11 states. Another 15 states have decriminalized it.

However, federal law governs border crossings.

“The U.S. is really a strange place right now because, in many states, marijuana is legalized. Washington is a perfect example where medicinal marijuana is also legalized and CBD oil is sold in stores for all sorts of purposes, including sleep aids and pain management,” he says.

“You can walk into a store in Soho, N.Y. and browse through a display of CBD oil. So, for the regular Canadian citizen who visits the United States and sees this, they might think there is no problem coming across the border with it.

But, in the U.S., nothing has changed with respect to their federal laws, and marijuana and its derivatives are considered controlled substances. So simply bringing in CBD oil that doesn’t have any psychoactive components is still illegal.”

The B.C. woman was fined $500 for failing to declare the oil, fingerprinted and then denied entry to the U.S, the CBC reports.

She left with $600 application for a special waiver that she must complete in hopes of regaining entry.

The CBC reports that the U.S. government demands, as part of the waiver application process, a criminal record check from the RCMP, letters of reference, a letter of remorse for past wrongs, proof of employment and documentation outlining a person’s residence and work history.

U.S. Customs and Border Protection, in some instances, may also require drug testing to demonstrate a person is not still using illegal substances.

Neuberger describes it as a very arduous process, with the border agency having the ultimate discretion to say no.

In this case, she should really be allowed in, and the ban lifted. It shouldn’t be like a waiver for two years and then she has to reapply. It simply should be lifted, he says.

That being said, the U.S. has very strict rules about marijuana and related substances, so maybe they’ll grant her the waiver because this is something that doesn’t have THC in it. But it’s really difficult, and I think, an affront to the relationship we have with our biggest trading partner,” Neuberger says.

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