by Linda Hurley, Governance, Risk, and Compliance Practice Leader
Everyone involved in the cannabis industry, at any level, is all too aware of the obstacles and risks presented by the cannabis banking crisis. As owners, operators, and investors in the cannabis industry have diligently (and creatively) worked to find workarounds and other solutions, progress from the banking industry and government agencies has been limited. The first hint of movement at the federal legislative level occurred Wednesday, February 13th
, when the House Financial Services subcommittee held a hearing examining access to banking services for cannabis-related businesses.
What is the Cannabis Banking Crisis?
Very simply put, the conflict between state and local cannabis laws that allow for adult- and medicinal-use of cannabis are in conflict with federal laws that categorize cannabis as a Schedule I controlled substance. As a result, major banking institutions are reluctant to provide traditional banking services to cannabis companies due to the risk of federal prosecution for money laundering or a variety of other offenses.
As a result, the cannabis industry is almost exclusively cash-based. Cannabis business operations – including payroll, rent/lease payments, vendor payments and taxes – are primarily conducted with cash. This results in hundreds of thousands of dollars in cash being moved between locations, simply to pay farms or manufacturers, or even to pay taxes. This inefficient system leads to a wide variety of issues, including significant operational difficulties, and growing risk threats from both untrustworthy employees and out right robbery.
Cannabis businesses have found a number of creative ways to navigate the banking issue. Some business restructure so a professional services firm, not directly touching the cannabis, provides payroll and other financial services. Shops and dispensaries have adopted a variety of debit or gift card payment systems. And finally, a handful of cannabis operators have established relationships with local credit unions willing to work with the industry. But the vast majority of cannabis operators must navigate daily risks related to the collection and remittance of large cash sums.
The Banking Crisis Hearing
“We’re trying to examine how outdated banking regulations on the federal level are hindering reform on the state level when it comes to marijuana,” said Democratic Congressman Gregory Meeks, chairman of the Consumer Protection and Financial Institutions subcommittee, in advance of Wednesday’s hearing. The event brought together a wide range of affected parties, including representatives of credit unions and banks, cannabis industry advocates, and finally government officials advocating for responsible cannabis laws.
The hearing was called to discuss the Secure and Fair Enforcement Banking Act of 2019
(SAFE act). The bill was introduced by a bipartisan coalition that includes Colorado Democratic Rep. Ed Perlmutter, Washington Democratic Rep. Denny Heck and Ohio Republicans, Rep. Steve Stivers and Rep. Warren Davidson. The SAFE act seeks: “To create protections for depository institutions that provide financial services to cannabis-related legitimate businesses, and for other purposes.”
Cannabis Banking Advocates Emerge
Prior to the hearing, the American Bankers Association offered public support for the SAFE act, stating in part: “Simply excluding legal state cannabis activity from the banking sector has not prevented the growth and spread of this industry, but providing access to the banking system could help facilitate public safety, streamline tax payments, and enable effective oversight in the states where voters have chosen to embrace cannabis legalization.”
Fiona Ma, Treasurer for the State of California, offered her support for the bill in a written testimony that reads in part: “an effective safe harbor mechanism in federal law promotes the safety of the public, improves the efficiency of collecting the taxes and fees we use to regulate the industry, and does not allow the banks and credit unions to totally abdicate their responsibilities to know their customers and avoid illicit money laundering.”
“(Current laws) encourage tax fraud, add expensive monitoring and bookkeeping expenses and—most importantly—leave legitimate businesses vulnerable to theft, robbery and the violence that accompany those crimes,” said Maj. Neill Franklin, Executive Director of the Law Enforcement Action Partnership (LEAP). He closed his passionate testimony by stating that the “safety of thousands of employees, business owners, security personnel, police officers and community members is in your hands.”
What can Cannabis Businesses do until Laws Change?
The primary purpose of the hearing was to create public momentum for a change in cannabis banking laws. The House Financial Services subcommittee heard hours of public testimony, largely in support of changing federal laws to support the cannabis industry. While nothing concrete emerged from the hearing, allowing so many influential advocates and politicians to publicly support the cannabis industry represents a major step-forward.
It will be a long process before any laws change, but in the meantime there are a number of legal actions a cannabis business can take to alleviate the stress of being denied traditional banking relationships. Most of these, including restructuring a business or implementing alternative payment systems, are complex activities that require professional guidance to execute successfully.
Additionally, there are a number of cash management solutions and internal controls all cannabis businesses should implement to limit opportunities for fraud and criminal abuse, both internally and externally. The MGO | ELLO Cannabis Alliance has long been an advocate for responsible practices regarding cash management in the cannabis industry. The Alliance provides a comprehensive suite of risk management solutions designed to promote operational best practices in the cannabis industry.
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