Border patrol cannabis seizures press industry

The U.S. Border Patrol has seized hundreds of thousands of dollars in legal cannabis at New Mexico checkpoints this year, according to industry officials.

Recent tougher enforcement of federal law over New Mexico law surprised many in the industry, who have taken their situation to media outlets to garner attention on border patrol seizures. And while the enforcement has a painful effect on businesses locked into intense competition, industry leaders say the impact goes beyond dollars and cents.

“It's just really pushing the entire industry backward,” New Mexico Cannabis Chamber of Commerce Executive Director Ben Lewinger told the Bulletin.

The seizures began in February 2024, years after retailers were given the green light to sell legally in New Mexico in April 2022. According to Lewinger, U.S. Customs and Border Protection agents have seized about $350,000 from at least 14 businesses in southern New Mexico.

Lewinger said most seizures are reported at the Interstate 25 checkpoint or the checkpoint on U.S. Highway 70 near Alamogordo. However, he’s skeptical of those numbers.

“I'm certain that there's more. I think this is underreported,” he said. “We've come a long way, but the stigma still exists in the industry. The fact is this is still federally illegal, and there's very real fear about getting fingerprinted and put on a list as a federal criminal.”

CBP said they're just enforcing the law in a statement sent to the Bulletin.

“Although medical and recreational marijuana may be legal in some U.S. states and Canada, the sale, possession, production, and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law, given the classification of marijuana as a Schedule I controlled substance,” said CBP spokesperson Landon Hutchinson.

Marijuana became illegal in the U.S. in 1937. Its current classification leaves it in a category with heroin – despite the somewhat conspicuous difference between the two drugs.

“Consequently, individuals violating the Controlled Substances Act encountered while crossing the border, arriving at a U.S. port of entry, or a Border Patrol checkpoint may be deemed inadmissible and/or subject to seizure, fines, and/or arrest,” Hutchinson said.

Hutchinson's statement did not say why CBP has decided to start enforcement now. 

Kai Kirk, a partner with Head Space Alchemy, said his business was one of the first to see products seized. On March 14, Kirk said CBP took around $7,500 worth of product and detained two employees for hours. It was a stark change from years past, he said.

“By turning a blind eye to this, they're allowing tax revenues to be stolen from the state,” he said.

Kirk and others said they plan to lobby New Mexico’s federal delegation to intercede on their behalf. However, since CBP is a part of the Department of Homeland Security, the office of the President of the United States must arbitrate on behalf of New Mexico’s cannabis industry.

That’s not unprecedented. Under former President Barack Obama, former Deputy Attorney General James Cole issued a memorandum to federal law enforcement and prosecutors instructing them not to focus on legal cannabis in 2013. The Cole Memorandum, as it’s known in cannabis industry circles, was rescinded by former President Donald Trump.

In January 2018, United States Attorney General Jeff Sessions told federal prosecutors to resume prosecutions of federally illegal cannabis at their discretion. After Trump, President Joe Biden promised to decriminalize marijuana at the federal level. In 2022, Biden pardoned all federal marijuana convictions. But otherwise, he’s taken no steps toward decriminalizing cannabis.

As a nominee, Attorney General Merrick Garland indicated to Congress that he prefers the Cole memo over the Sessions memo. But he’s taken no public steps to put that into action.

This has left New Mexico’s budding industry in a haze. Industry leaders said a new memo is needed.

“The White House (should) issue a directive to the Department of Homeland Security and Customs and Border Protection to not interfere with interstate operations for legal cannabis businesses,” Lewinger said. “What they're doing is outside of their scope.”