This is always an exciting time of year in the cannabis industry. “Croptober”—the peak harvest period for many outdoor cannabis cultivators in the U.S.—has about wrapped up, financial planning for 2019 is in full swing and the holiday season is swiftly approaching.
Our northern neighbors are also experiencing excitement this fall: Adult-use cannabis rolled out across Canada Oct. 17, and the country’s first cannabis shortage soon followed. (As has happened in several legal markets.)
USA Today reports that the province Quebec alone saw 12,500 in-store transactions and 30,000 online orders in its first day of sales. According to Global News, Nova Cannabis—which operates five stores in Alberta—made $1.3 million in sales its first day. In total, 172,000 cannabis orders were processed across five provinces, including Ontario and Quebec, Oct. 17, reports BNN Bloomberg.
Also according to BNN Bloomberg: While stocks have “fallen consistently” since adult-use legalization (at press time)—DBRS, a globally recognized credit ratings agency, has projected that the market could be worth $4 billion to $6 billion annually (starting in its first year of legalization). We’ll be watching as Canada continues to see growing mainstream interest (i.e., additional major investments and large corporate brands partnering with the country’s largest producers), as well as international growth.
There’s plenty American cultivators can be jealous or fearful of when looking north—but that shouldn’t overshadow what we can do collectively to continue advancing the cannabis industry and the understanding of this complex plant we still know so little about.
We can immerse ourselves in research and development (R&D) to continue to build on the knowledge base of cannabis’ capabilities. “We have to start to lean into this unbelievable complexity, knowing full well this is really the most phytochemically complex plant to interact with,” says the science-driven Jeremy Plumb of Pruf Cultivar in this month’s cover story.
For those inspired by Pruf’s story, Université Laval researcher James Eaves shares how to set up a proper R&D trial in your own facility in CBT’s third-annual “State of the Cannabis Lighting Market” report—one of CBT’s contributions to industry research.
And Plumb will be a keynote speaker at the third-annual Cannabis Conference, held April 1-3, 2019, in Las Vegas. He will be one of many industry pioneers to speak at this unique event, which unites the plant-touching businesses in the global cannabis industry.
At the event, science and cultivation strategies will be joined by a significant focus on cannabis cultivation and dispensary business insights and strategies. Canada’s advancement, and what it means for the future of U.S. and global cannabis economies, will also be covered in great detail.
As Tim McGraw says in “Where Are They Now”: “When you bring together some of the brightest minds in the industry, innovation happens.” So let’s make it happen.
The bulk of California’s sinsemilla is grown outside. The natural harvest is in autumn, and summer has traditionally been a time of shortage. In 2017, wildfires across the state’s northern counties also limited clean flower supply; much of the outdoor production was tainted with smoke and soot. And as of July 1, cannabis flowers must conform to new rules and regulations, including stringent testing protocols.
Another reason for compliant flower shortage is the ingrained reluctance amongst experienced growers to navigate the bureaucracy of license applications for the chance of conforming to unfamiliar regulations. The regulatory process is daunting, compliance costs are high, and the wholesale price of sinsemilla is at an all-time low. There are simply not as many licensed growers as expected, and nowhere near enough to feed California’s massive retail market. And, many licensed growers are unable to sell their flowers to legal distributors because they fail the required tests for biological and chemical contaminants.
Although some growers fail the tests for potentially pathogenic fungi and bacteria, many more fail because their flowers contain agricultural chemicals.
Federal and state governments set maximum residue limits (MRLs) for agricultural chemicals in food crops. These recommendations are designed for fresh, dried and concentrated fruit and vegetable products and form de facto guidelines for establishing MRLs for cannabis and other agricultural products.
The California Department of Pesticide Regulation publishes two lists of agricultural chemicals (largely pesticides) that have been detected in cannabis samples and will be controlled in commercial cannabis sales. Category I compounds are not approved for use on any food crops, and the state allows no residue levels of Category I chemicals in cannabis products. In practice, zero-tolerance levels prove to be unrealistic, as improved analysis techniques can raise detection limits from parts per million (which is the present standard) to parts per billion. Detecting traces of any chemical is largely dependent on the thoroughness of the search.
A quick survey of the Category I list shows that at least 44 agricultural chemicals are prohibited for use on cannabis crops. Several of these prohibited chemicals are monitored in a range of other crops, and MRLs have been established for each. However, Category I compounds are not allowed for cannabis use and therefore have no MRLs. Instead, they are assigned low detection thresholds of 0.01 to 0.02 ppm, which is about 10 times lower than most allowed pesticides’ MRLs. Under California guidelines, cannabis samples with any Category I chemical present cannot be legally sold.
(The most detailed listing of cannabis MRLs comes from California’s Bureau of Marijuana Control guidelines for medical cannabis testing laboratories and Department of Pesticide Regulation recommendations.)
Paclobutrazol (aka PBZ or Paclo), which has no permitted food use and a detection threshold of 0.01 ppm, is regularly detected in cannabis samples. Its use is only allowed on ornamental crops. Paclo is a plant growth regulator (PGR) that inhibits gibberellin plant growth hormone biosynthesis, thereby reducing internode growth to give stouter stems, and increasing root growth.
In cannabis, Paclo is added to a variety of nutrient products (e.g., PhosphoLoad, Gravity, Bushmaster, Flower Dragon, etc.) and is used by indoor sinsemilla growers to produce short and highly branched, dark green plants with extensive root systems and rock-hard buds. (Daminozide is another Category I PGR that is often included in nutrient products along with paclobutrazol.)
Imidacloprid is a commonly used general household insecticide sold under various brand names, and its MRLs are comparable to agricultural standards for fresh produce. Myclobutanil (sold as Eagle20 and Systhane) is a general fungicide widely used in the cannabis industry, and it is used with other crops in accordance with regulations. However, myclobutanil is considered a possible threat to groundwater supplies and is prohibited in California cannabis crops.
Several mite species present persistent problems in cannabis crops, and chemical sprays and drenches often offer the only effective and affordable control. Abamectin is a prohibited miticide commonly used on cannabis crops.
Our industry relies heavily on prohibited PGRs and pesticides that cause most regulatory compliance problems in California, and it is clear that at least with these four important agricultural chemicals, cannabis growers are subject to greater restrictions than fruit and vegetable farmers.
Several other agricultural chemicals are allowed for use on food and cannabis crops. California lists 24 Category II pesticide residues and their MRLs for inhalable and other cannabis forms.
Generally, MRLs set for inhalable cannabis are much lower than those set for other uses such as edible products, the MRLs of which are more in line with those of food products. Most of California’s residue regulations follow guidelines for other crops, though some are more stringent. As the regulatory climate surrounding cannabis production matures, we can expect to see some of these barriers lowered as policies become normalized in accordance with other industries.
Overprotective cannabis regulations, such as the Category I classification of paclobutrazol, might cause some cannabis products to fail residue screening; however, the indiscriminate use of allowable pesticides is a much greater cause for public concern and is addressed by strong regulatory controls and the establishment of MRLs. Cautious regulators are responsible for consumer health, and understandably they have set cannabis MRLs at low levels.
Good Cannabis Grown Right
Regulations alone are difficult to blame for flowers failing biological and chemical screening. Successful growers consider what it will take to produce a clean product and make every preparation to meet that goal.
The easiest way to comply with stringent regulations may be to practice organic agriculture, applicable to both small and large grows:
- If you don’t already have a set location, pick a site with ample sun, clean water, good soil drainage, adequate airflow and low air humidity to prevent mold and mildew problems.
- Build and maintain a living soil environment.
- Use low-impact integrated pest management strategies employing biological controls and environmentally friendly pesticides where appropriate.
- Spray biological controls, such as Bacillus thuringiensis (BT) bacteria, for bud worms.
- Trap rats.
- Fence out rabbits, deer and other mammals.
An ounce of prevention is worth a pound of cure.
When growing indoors or in greenhouses, cleanliness is of primary importance. Sterilize all work areas and tools regularly to prevent the spread of invisible fungi and bacteria. Maintain only healthy, pest-free mother plants. Be sure starter cuttings are completely pest-free before using them to grow mother plants. If you are experiencing persistent pest problems in your mother plants, consider starting again from seeds.
Some allowable pesticides are systemic and are taken up by every plant part. Many take a long time to break down, so they can exceed their MRLs even after several cutting cycles. Many growers who fail residue tests claim to have not used any chemical inputs on their crops. Apparently, some pesticides are so long-lived that plants produced in a grow room or greenhouse where pesticides were used even months earlier can be tainted, and may not pass MRL screening. (Read more about clones at risk for pesticide residues in our May 2017 issue.)
As a last resort, apply chemical controls well in advance of taking cuttings in accordance with the product label and long enough before harvest to ensure that only allowable residues remain in the dried flowers. And, consider that in agriculturally zoned areas, neighboring growers of established food crops may apply chemical controls that effect the levels of prohibited or controlled compounds in nearby cannabis crops.
Other Reasons for Failure
Regulatory enforcement is a strong determinant of which cannabis products become most readily available, and we increasingly live in a concentrates- and extracts-dominated world. During the sudden normalization of cannabis products, traditional dry-sieved hashish and even modern water-sieved hashish have largely been forgotten. Sinsemilla flowers’ decreased availability is matched by increases in vape pen flavors and market share. Solvent extracts are only the most recent manifestation of cannabis concentrates.
Traditional labor-intensive, mechanical-concentration techniques, and their benefits, have been superseded in our modern age by the manufacturing ease and huge volumes achievable with solvent extraction (e.g., alcohol, butane or carbon dioxide). Extracts may offer growers a way to profit from inferior, immature or biologically contaminated flowers, but solvent extraction also concentrates chemical contaminants such as pesticide and solvent residues along with THC, CBD and terpenes, leading to failed MRL screening. That said, forward-thinking companies are developing strategies to purify extracts and remove pesticide residues.
What’s to Come?
Neither MRLs, nor growers who fail to comply, are entirely responsible for the lack of legal, high-quality flowers at reasonable prices. And, because of regulatory compliance, many growers are upping their games to compete in the legal market, and thereby bringing long overdue, environmentally positive changes to our industry.
On small, biodynamic farms, relevant agricultural technologies and management strategies come to fruition. Successful fruit and vegetable growers benefit from well-practiced skills of producing naturally grown and pesticide-free crops for boutique markets. And, pioneering craft cannabis growers can share in the same benefits, while preserving the heritage cultivars that discerning customers pay extra to enjoy. The future for innovative, small growers is bright and sunny.
Although some regulations are presently over-protective, and in serious need of adjustment to agricultural norms, the effects of legalization generally have been healthy. As the regulatory climate matures, we expect more consumer-friendly and industry-appropriate MRLs will be established for cannabis, as they have been for more familiar crops. Formerly naïve consumers are now aware that there can be increased health risks associated with unregulated cannabis. Legal cannabis states are enforcing regulations to protect consumers, and producers are seeking cannabis cultivation solutions with fewer artificial inputs. The sinsemilla market will continue to evolve, apace with regulatory compliance and consumer preferences, so our beloved flowers should be around to serve us well into the future. Be patient. California will blossom again.
Robert C. Clarke is a freelance writer, photographer, ethnobotanist, plant breeder, textile collector and co-founder of BioAgronomics Group Consultants, specializing in smoothing the transition to a wholly legal and normalized cannabis market.
Mojave Richmond is the developer of many award-winning varieties such as S.A.G.E., which served as a springboard for creating many notable cultivars. Richmond is a founding member of the international consulting company BioAgronomics Group.
Top photo courtesy of Mojave Richmond.
1. You didn’t prepare for the cost.
An HVAC system can be costly. In fact, Aaron Mullins, systems engineer for Denver-based cannabis consultancy Next Big Crop, has worked on projects where HVAC system costs reached up to $120 per square foot of facility space. “A lot of the time, owners aren’t prepared for the cost of the system,” he says, “so they try to cut costs—they under-specify the system or build it out at 80 percent of what they need.” Nothing is wrong with trying to save money, but when you under-build and inevitable problems arise, Mullins warns, “you won’t have the capacity to deal with them.” To ensure your HVAC is built to last and evolve, Mullins recommends identifying what you need for production today—then building an HVAC system that’s 20-percent bigger. “That way, if something comes up, you have the capacity to deal with it,” he says.
Things like dehumidifiers or cooling units malfunctioning, varying plant transpiration rates and changes to the outside environment can all increase humidity levels in cultivation areas, Mullins says. “A lot of the variables that affect the room can change over time, and it’s best to have a buffer … built in to accommodate this.
“It’s more expensive upfront, but you will recoup all of the costs in the first disaster you have.”
2. Your upfront costs cut into your operating expenses.
Simply because an HVAC system is expensive up-front doesn’t mean you can’t reduce your month-to-month costs, according to Rick Harder, co-owner of Oregon Cannabis Authority, a cultivation operation and producer in Springfield, Ore. Running an HVAC to its max daily would generate a large electric bill, so when Harder installed his 1,000-watt Gavita HPS lights, he also ordered a 20-inch fan for each of his three, 1,000-square-foot grow rooms. With Oregon’s year-round temperate weather, the fans help supplement the HVAC by providing fresh air and controlling heat and humidity. “The fans don’t cost much to run,” Harder says, “and now I don’t have the big HVAC units running all the time.”
3. You didn’t match your lights to your new system.
When L’Eagle in Denver installed a new HVAC system equipped with a REME HALO air purification system, co-owner Amy Andrle says the team had to evaluate their lighting to see how much air conditioning they would need for every light they had. Every 4,000 BTU (British thermal units)—or about what one ceramic metal halide light bulb produces—needs 1 ton of air conditioning, Andrle says. As L’Eagle installed the new HVAC system, the team knew it would be best for their operation to switch from ceramic metal halide lights to LED lights. “We needed to make sure that because less heat was created [by the LEDs], our thermostats were monitoring perfectly and the system was being regulated to account for fluctuations in humidity and heat as a result of the lighting changes,” she explains. Without that kind of careful planning, the company may not have installed as much AC as needed.
4. You didn’t work with a cannabis-savvy engineer.
While HVAC systems are common, what’s not so common is an engineer who knows how to build one especially for a grow facility, says Mullins. “A lot of the time, people reach out to engineers who don’t have experience building rooms with the requirements that grow rooms need,” says Mullins. He compares the complications of building an HVAC system for a grow space to building an indoor pool in a data center: In both cases, you have to accommodate conflicting needs for everything to properly operate.
If you’re alternating your light cycles in different grow rooms (meaning one set of lights is on during the day, the other is on during the night) Mullins says, “you need to consider what your heating and cooling load will be like in day and [at] night, and a lot of people don’t think about removing heat at night [when lights are on],” he says. “You need to find an engineer who is familiar working with grow facilities.”
5. You don’t have a backup plan.
When Harder of Oregon Cannabis Authority built out his HVAC system, he recognized the huge burden it bears for the grow rooms: It’s responsible for cooling, supplying fresh air, maintaining humidity levels and more. He knew that if the HVAC system went down, he would be in big trouble, so he realized he needed a “redundancy plan.” In other words, “it’s better to have two, 500-ton units than one, 1,000-ton unit,” he explains, “in case one goes out.”
6. You didn’t consider your environment.
A cultivation facility in Florida has different needs than one in Nevada, points out Mullins. If you didn’t consider what specific needs your environment has before you purchased your HVAC system, you could experience regrets. For example, if the internal humidity is too high in a Colorado grow, Mullins says, you have the luxury of bringing in outside air, but if it’s too high in a Florida grow, “that’s not an option,” he says. “The outside air is already hotter and more humid than what you’re working with,” he adds, so you need an HVAC system that works with, not against, your environment.
7. You didn’t consider the long-term investment.
Andrle loves the building that L’Eagle calls home. But L’Eagle doesn’t own the building; it is leased. “We installed an incredibly valuable HVAC system in a building we lease,” she says. It’s not a decision she regrets, but it’s something she encourages other growers to consider when purchasing or upgrading their systems.
“You can’t take [the HVAC] with you,” she says, “so you have to think about how it will benefit you in the time that you have it.”
The L’Eagle team decided it was best to install the best HVAC system they could afford. “It’s not just about plant health—it’s about employee health,” Andrle says. “You want to make sure that you’re filtering any impurities in the air.” That’s why L’Eagle opted for a hospital-grade HVAC system. “We have a team that’s dedicated to us, so why not try to create for them the best possible working environment we can?”
8. You didn’t consider electricity.
An HVAC system creates quite the electric bill. To keep costs down, Harder says he drops the wattage. “I kind of stumbled onto a little secret that works for me,” he says. Using an auto-dimmer feature, he dims the lights when the temperature increases, which in turn drops the temperature and allows him to run the HVAC system at a lower wattage. Once he did this, “I noticed the plants did as well, if not better,” he says. “When you oversaturate a plant with light, it can start to get a little yellow or light green.” Plus, Harder saved a bundle on his electric bill. By lowering the lights and therefore, lowering the AC, his bill has dropped from $4,500 to $3,200 a month, he says.
9. You didn’t consult your grower.
All growers have different preferences for their grow room environments. If you don’t consult them on the HVAC system before it’s installed, you could run into problems, Mullins warns, adding that many owners will build systems without consulting their growers first. It’s better to work with your grower when building or redesigning an HVAC system, so that the system can be customized to the grower’s needs and preferences.
10. You didn’t make a plan for your plants.
When L’Eagle installed its HVAC system, the team had to learn how the plants would respond to the humidification.
“We knew that the plants would react positively to a new HVAC system with better and cleaner air circulation,” Andrle says, but the team still wanted to keep a watchful eye on every plant. “It’s not that it affected each strain specifically, but more overall, [we had to ask] how does changing one variable factor into the overall formula of what goes into a room—i.e., beneficials, plant treatments, nutrients, additional fans and air circulation, dehumidification systems. The team needed to be very aware through the duration of a flowering cycle and record … any fluctuations.”
Other growers should do the same with a new HVAC system, she recommends. “You have to be ready to anticipate changes.”
Jillian Kramer is a freelance contributor based in Cleveland, Ohio.
Top photo courtesy of SEASTOCK | iStockPhoto
With the growing trend toward legalization, cannabis presents a new and fresh business avenue. Although the blossoming industry seems enticing for potential investors and employees, non-U.S. citizens may want to resist the temptation to join the U.S. industry, even while residing in states which have legalized the drug, as participation could postpone entry to the country—possibly forever.
The legal environment surrounding cannabis in the U.S. proves confusing for both citizens and non-citizens. That’s because three different primary sources of law play into this situation: the Controlled Substances Act (CSA) in federal criminal cases, the Immigration and Nationality Act (INA) for federal civil cases, and state legalization statutes and regulations.
The majority of states allow for limited use of medical marijuana under certain circumstances. The CSA, meanwhile, counterintuitively categorizes marijuana as a Schedule I drug, placing it alongside heroin, LSD, ecstasy and peyote in a category of drugs with no accepted medical uses.
For immigration, the consequences of this classification are severe. The Schedule I designation makes it a federal offense to possess, gift, sell, cultivate, import or export cannabis. This includes any activity, commercial or otherwise, involving any part or derivative of the plant. One does not need to be on federal property or travel between states to be guilty of a federal drug crime. The U.S. Supreme Court has held that even growing or using marijuana at home for medical purposes, in accordance with state law, is regulated by the CSA.
While the INA provides a petty offense exception for possession of 30 grams or less, any other cannabis offense could result in up to 10 years in prison and possible deportation. Memos and appropriation riders (Cole Memo, Rohrabacher-Blumenauer Amendment) have prevented more domestic law enforcement activity by the U.S. Department of Justice (DOJ) toward conduct lawful under recreational and medical state marijuana laws. Since 2014, Congress has passed appropriations riders that bar the DOJ from using federal funds to bring criminal prosecutions based on conduct that is permitted by state medical marijuana laws. This funding prohibition effectively bars federal prosecution in medical marijuana cases. However, Attorney General Jeff Sessions would like this rider to end.
In 2013, the DOJ issued memoranda that requested that U.S. Attorneys refrain from prosecuting conduct that was lawful under state recreational laws as well. Sessions has since rescinded these memos. The U.S. Attorney General has granted each U.S. Attorney the freedom to prosecute marijuana use, even where permitted under state laws.
Visa Not Accepted
In addition to the CSA, the INA also restricts non-U.S. citizens’ ability to use and possess marijuana while in the U.S. The Department of Homeland Security (DHS) oversees immigration in the U.S. This includes the U.S. Customs and Border Protection (CBP), which operates the borders; U.S. Citizenship and Immigration Services (USCIS), which manages immigration benefits such as immigrant and non-immigrant petition and naturalization applications; and U.S. Immigration and Customs Enforcement (ICE), which enforces immigration law within the U.S., including deportation actions, raids and other investigations.
Numerous U.S. visas allow foreigners to come to the country for business and tourism, including:
- the E treaty trader or investor visas for certain non-U.S. citizens who want to trade or invest in a business,
- the EB-5, which provides a means for eligible immigrant investors to become “green card holders” after investing $1 million dollars,
- the L intracompany transfer,
- the H-1B specialty occupation,
- an extraordinary ability visa in science or business (O-1).
- For non-agricultural temporary workers, the H-2B visa is also a possibility.
All these visa options are off the table for non-U.S. citizens who are entering the U.S. to engage in cannabis-related activity, regardless of the legality of cannabis in the state they are visiting because of cannabis’s CSA classification.
CBP is a foreigner’s first encounter with DHS when seeking entry to the U.S. CBP has broad authority to seize and search electronic devices of anyone seeking entry to the U.S. It reported searching 30,200 devices at the U.S. border in 2017 alone (a 60-percent increase compared to 2016). Twenty percent of those searches were on devices owned by non-U.S. citizens. As a result of these electronic searches, non-U.S. citizens could be deemed inadmissible simply by communicating (via email, Facebook, texts, etc.) a desire to consume cannabis or otherwise participate in the cannabis industry while in the U.S. The Constitution may not prove a viable argument at the border. Although the Constitution protects all people, the plenary power doctrine of the federal government has broad powers to adopt what would appear to be unconstitutional policies, whether that be the right to free speech or the right to unreasonable search and seizures. But due in large part to the plenary power doctrine, the executive branch of the U.S. can determine many polices and protective measures regarding control at U.S. borders and national security. The federal courts may interpret this differently in the future, but as of now, non-U.S. citizens should be prepared at the border.
CBP’s broad authority to search phones and other electronic devices at the border can cause serious immigration issues. For example, a Chilean woman recently flew to the U.S. to visit her long-time boyfriend, a trip she has made numerous times in the past. At Los Angeles International Airport (LAX), CBP officers stopped and searched her, including her phone, where they discovered photos of a Colorado dispensary. Officers asked if she tried cannabis while on her previous visit to Colorado, and she replied, “Yes, it’s legal there.” With that moment of honesty, the woman was sent on a plane back to Chile and received a lifetime ban from entry to the U.S.
IN A Lot of Trouble
The INA lays out a complex system of laws regarding inadmissibility and deportability. INA set forth grounds for deportation and possible waivers or defenses to charges of deportation. Certain charges depend on an individual’s status in the U.S. (i.e., immigrant or non-immigrant, legal or illegal). The INA refuses to admit anyone with a conviction for a violation (or a conspiracy or attempted violation) of any law or regulation related to a controlled substance, as defined in the CSA. Additionally, the INA broadly defines “conviction” as formal judgment of guilt of an alien entered by a court or, if adjudication has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere (Latin for “no contest”) or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered that some form of punishment, penalty or restraint on the alien’s liberty be imposed.
Even if a conviction is pardoned or expunged, it can still be used for inadmissibility findings and deportation if officers discover the arrest through interviews, questionnaires or other means. Federal law defines what may be expunged in an immigration context, often allowing immigration officers to see otherwise “sealed” records.
In addition, lawful permanent residents are deportable if convicted of an aggravated felony at any time after entry. Aggravated felonies include specific classes of convictions in the INA, which may or may not be felonies under other state or federal laws. Illicit trafficking in a controlled substance is per se an aggravated felony, and any non-citizen working in a dispensary or cultivation business would fall under that definition.
Additionally, a non-U.S. citizen may be barred from U.S. entry merely if the government has reason to believe (based on reasonable, substantial and probative evidence) that the individual is connected to illicit trafficking in any controlled substance. Recently, at the 2018 AILA Annual Conference on Immigration Law in San Francisco, a foreign national relayed what happened to him at the border. He works in security protection and advises many clients, including cannabis companies, on security issues. Due to some of the materials on his social media, the CBP officer was concerned that he was here to counsel and advise cannabis companies in the U.S. on how to strategically and efficiently guard their merchandise. Ultimately, he was allowed in for five days because he had tickets and hotel reservations to Disney and was with his family. Nevertheless, one must be very careful as aiding and abetting an illegal activity is taken seriously. Even services that are not directly related to cannabis production and appear to be peripheral may be subject to scrutiny.
Canada’s legalization of recreational cannabis threatens to create even more headaches for those wishing to enter the U.S., either as tourists or on a more permanent basis. Given that CBP officers need only a “reason to believe” that an individual will violate U.S. law to deny entry (potentially with a lifetime ban), admitting to using cannabis, even legally in Canada, could be enough to lead border patrol officers to “reasonably believe” that the individual seeking entry will violate the law by using cannabis while in the U.S. This applies even more so to individuals involved in cannabis businesses, as CBP officers may assume that the potential entrant plans to further their business endeavor in the U.S.
Finally, immigration law requires “good moral character” to obtain many immigration benefits including becoming a naturalized citizen. A conviction or an admission of facts, which constitute the essential elements of a crime involving moral turpitude (which includes crimes involving intent to steal or defraud, sex offenses and trafficking of a controlled substance), legally prevents an individual from showing “good moral character.” Furthermore, a conviction of a crime involving moral turpitude within five years automatically subjects a person to deportation and a ban from entering the U.S. for at least 10 years.
So long as there is a commercial element, participating in the cannabis industry remains a serious crime in immigration law—even if the sale occurred in a context in which the non-U.S. citizen reasonably believed his or her actions to be lawful (i.e., a successful Colorado dispensary owned and operated by a non-U.S. citizen).
Shimon Abta provides a final cautionary tale. Abta legally resided in the U.S. with his new wife on a B-1 visa (temporary business visitor). When he applied to become a permanent resident (with a green card), the USCIS discovered Abta had a medical marijuana card from Nevada and worked in the cannabis industry in Israel as an agronomist. Applying federal law, the USCIS threatened Abta with felony trafficking charges and forced him to leave the country, despite Abta’s clearly lawful intent. To this day, Abta has been unable to return to the U.S.
Editor’s note: The authors gratefully acknowledge the contributions to this article made by Brendan Krimsky, Columbia Law School, J.D. expected 2020.
Patricia L. Gannon is a partner in Greenspoon Marder’s immigration and naturalization practice group.
Marcela Bermudez is senior counsel in Greenspoon Marder’s immigration and naturalization practice group.
Top photo courtesy of Adobe Stock
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