On October 25, 2022, U.S. professional basketball player Brittney Griner lost her bid in a Russian appeals court to overturn a nine-year sentence for attempting to smuggle illegal drugs into Russia. According to reports, Griner, a Women’s National Basketball Association star and two-time Olympic gold medalist, was arrested at a Russian airport in February 2022 while attempting to enter the country to play professional basketball with vaporizer cartridges containing less than one gram of hashish oil, a product derived from marijuana. Griner reportedly has a prescription for medical marijuana in Arizona, but marijuana, including medical marijuana, remains illegal in Russia.
The U.S. Department of State has classified Griner as “wrongfully detained,” a designation that means the United States will act more aggressively to secure her release.
Griner’s situation may be special given the political situation between the countries involved. At the same time, it may serve as a reminder to employers of the risks to employees traveling for work with marijuana given the drug’s varying legal status from country to country and even state to state within the United States.
Varying Legal Status of Marijuana
Currently, recreational marijuana, or cannabis, is legal in twenty-one U.S. states plus the District of Columbia, while medical marijuana is legal in many more. The drug is illegal to import, manufacture, distribute, and possess under the Controlled Substances Act as a Schedule I controlled substance—a designation for drugs considered to have the high potential for abuse and no accepted medical use.
Around the globe, there are similar differences in the status of marijuana. While most countries continue to ban marijuana, some have limited enforcement, and several countries, such as Canada, have legalized recreational use on a national level. Many others, mostly those in Europe and South America, have legalized medical marijuana. On the other hand, some countries have strict drug laws and impose harsh penalties for marijuana possession.
The World Anti-Doping Agency (WADA) also treats marijuana as a prohibited substance for athletes competing in international sports as marijuana and cannabinoids are on the prohibited list under the World Anti-Doping Code, which seeks to harmonize international anti-doping efforts around the world. However, in 2019, WADA exempted cannabidiol (CBD), a chemical derived from marijuana that differs from the psychoactive compound tetrahydrocannabinol (THC).
Immigration Consequences for Non-U.S. Citizens
While recreational or medical use of marijuana is legal in many states, marijuana remains a controlled substance under federal law. Therefore, marijuana-related activity, such as lawful employment in the cannabis industry, possession, sale, purchase, or formally admitting to marijuana use can lead to immigration consequences for noncitizens, even if the activity is carried out in a state where marijuana is legal. Additionally, the mere admission of conduct related to marijuana can also result in failing to establish the good moral character required to obtain U.S. citizenship through naturalization. Non-U.S. citizens include lawful permanent residents (also referred to as “green card holders”), visitors, students, work visa holders, and dependents of work visa holders.
Flying in the United States
When flying in the United States, the Transportation Security Administration (TSA) does generally allow the transport of personal medical marijuana in certain situations. The TSA does warn that marijuana and certain cannabis-infused products, including some CBD oil, remain illegal under federal law. The 2018 federal farm bill made an exception “for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA.”
The TSA states that it does not specifically search for marijuana or other illegal drugs, but that if any illegal substances are found during screening, the agency “will refer the matter to a law enforcement officer.” Despite the farm bill, there have been reports of travelers in recent years being arrested and detained in some U.S. states where marijuana is illegal after marijuana or marijuana products were discovered in their luggage.
Traveling internationally can pose additional risks. According to U.S. law, it is illegal to import any amount of marijuana or drug paraphernalia into the United States. In April 2021, U.S. Customs and Border Protection issued a reminder to the public that those caught with marijuana entering the United States face several consequences, including federal civil penalties of up to $1,000.
It is further illegal to transport marijuana across many international borders, even if marijuana is legal in the destination country. For instance, the government of Canada, which legalized recreational marijuana in 2018, warns travelers that it is illegal to transport marijuana or cannabis products, including edibles, cannabis extracts, and topical ointments, across the border into Canada, no matter how much travelers are carrying or whether they are authorized to use medical marijuana in any form.
Further, not only have many countries not followed the legalization trend, they impose strict penalties for violations. Singapore, for example, a popular location for many U.S. multinationals, punishes possession or consumption of cannabis with up to ten years of imprisonment or $20,000 or both. And those who illegally traffic, import, or export cannabis may face the death penalty.
The U.S. Department of State warns travelers that they are subject to the local laws and regulations of a country they are visiting and that those laws and potential penalties might differ from those in the United States. Travelers who are arrested or detained abroad may have to be connected with the U.S. Embassy in that country, which, depending on the country, may be able to provide various services, such as providing a list of local attorneys who can represent the traveler.
Despite the growing legalization of medical and recreational marijuana, the drug remains illegal under U.S. federal law, in many states, and in most countries around the globe. Employers with employees who regularly travel for work, especially multinational employers with employees who must travel internationally frequently, may want to consider employment policies to ban these drugs during travel. They may also want to consider warnings to employees about the risks of travel with marijuana products even if employees are licensed medical marijuana users.
Further, employers may want to evaluate broader potential risks before asking or requiring employees to travel to certain countries currently undergoing conflict or that have tense relations with the United States.
Ogletree Deakins’ Cross-Border Practice Group and Immigration Practice Group will continue to monitor and report on developments with travel issues will post updates on the firm’s Cross-Border and Immigration blogs. Important information for employers is also available via the firm’s webinar and podcast programs.