Federal Judge Presses U.S. Customs and Border Protection on Transparency in Cannabis Policy
Mat Hayward

Federal Judge Presses U.S. Customs and Border Protection on Transparency in Cannabis Policy

An ongoing lawsuit seeks information on a federal policy that has barred Canadian cannabis industry stakeholders from entering the U.S.

June 30, 2020

A federal judge is setting new deadlines for U.S. Customs and Border Protection (CBP) to respond to an ongoing lawsuit seeking specific policy language on the agency’s approach to cannabis at the U.S-Canada border. For the past few years, Canadian cannabis industry employees and investors have been turned away at the border—and, in some cases, barred from the U.S. outright.

CBP has never articulated why that’s happening, though. There is no record of an overt policy that might dictate such actions. In 2018, Seattle-based law firm Davis Wright Tremaine filed a lawsuit to find out what’s going on. 

Chris Morley, associate with Davis Wright Tremaine, says that the judge’s recent opinion is a move in the right direction.

In short, Judge Ricardo Martinez asserts that the CBP has not adequately searched for the supporting documents that might explain the agency’s cannabis policy. The judge gave CBP until July 31 to track down its own policy.

What the agency comes up with next month will answer the fundamental question: Is there even a formal policy dictating CBP arrests and other border actions?

“The central question is the public’s right to know CBP’s policy,” Morley says. “We think it’s a simple issue. CBP has announced a policy and they’ve been us, essentially, they can’t find records of that policy. The court agreed with us that CBP hasn’t done an adequate search and has ordered them to do more. … We’re left asking ourselves: How hard can it be?”

The flip side of the CBP policy question, as Morley points out, is that “they’re acting in an ad-hoc manner all over the northern border.” In the absence of a formal policy, new questions arise as to how CBP is organizing itself with regard to the cannabis industry.

Cannabis Business Times first reported on this issue in 2018. In May of that year, we filed a FOIA request with CBP, seeking much of the same information cited in the Davis Wright Tremaine lawsuit. Our request remains unfulfilled, despite the estimated date of completion listed as June 6, 2018.

“FOIA prioritizes the public’s right to know, the public’s right of access to government records,” Morley says. “The federal agencies have an obligation to respond to FOIA requests. They serve the public. To do that, the public needs to know what they’re doing.”

Davis Wright Tremaine LLP v. U.S. Customs & Border Prot. by sandydocs on Scribd