O vercom ing Banking Obstacles for Marijuana-Related Businesses Lori Jean Partner, Krieg DeVault LLP
The Opportunity Legal Marijuana Sales in the U.S. Expected to reach $50B annually by 2026 CBD market estimated to grow 700% to $2.1B by 2020 Tremendous growth in volume, income, capital investment and number of users Illegal Market--??
The Legal and Regulatory Landscape Inconsistent Illogical Politically Controversial
The Legal Landscape Federal Law Federal Law Controlled Substances Act Schedule I High potential for abuse No currently accepted medical use in the U.S. Lack of accepted safety for use of the substance under medical supervision Cannabis is illegal cultivation, production, sale and distribution Penalty criminal conduct with seizure of personal and real property used in connection with activity even if legal under state law
The Legal Landscape State Law
The Legal Landscape State Law State Law Inconsistent and reflects legislative process/negotiation Medical Use First legalized in California in 1996 29 states, D.C. and 3 territories Adult Recreational Use 9 states and D.C.
The Legal Landscape--Indiana Indiana Law Low THC hemp extract or cannabidiol (CBD) oil is legal As of March 2018
Cannabis? Marijuana? Hemp? Cannabinoids? THC? CBD? Cannabis Cannabis sativa L. Marijuana Hemp (a/k/a Industrial Hemp) Cannabinoids THC (tetrahydrocannabinol) Psychoactive compound that delivers a high CBD (cannabidiol) Lacks psychoactivity, reinforcing properties and abuse liability Both THC and CBD are present in marijuana and hemp CBD oil must not exceed 0.3% THC and be labeled as such to be legal in Indiana
Legalit y of CBD O il--federal CSA Prohibits Growing Cannabis Sativa L. and Thus Hemp 2014 Farm Bill Overrides CSA Permits Growth, Cultivation, Manufacture and Research in University and State Dep t of Agriculture Research and Pilot Programs Pilot Programs may Include Marketing, i.e., commercialization Can license private parties to participate DEA Nevertheless Attempted Enforcement Actions Congress Responded with 2016 & 2017 Appropriations Acts Federal funds may not be used to contravene Farm Bill, or to prohibit transportation, processing, sale or use of industrial hemp grown in accordance with Farm Bill DEA Issued Statement of Policy and Final Rule (12/2016) Establishes a Controlled Substances Code Number for marihuana extract making CBD Oil a Schedule I controlled substance If any cannabinoids are present, it is a marihuana extract Broadens the definition of marijuana in the CSA Conflicts with Farm Bill, which exempts all parts of the cannabis plant from the CSA definition of marijuana so long as THC levels are 0.3% or less Hemp Indus. Ass n v. DEA, No. 17-70162 (9 th Cir.) pending lawsuit
The Legal Landscape The Cole Memo Issued by DOJ in 2012 Stated enforcement priorities of DOJ Prevent distribution of marijuana to minors Prevent marijuana revenue from funding criminal enterprises, gangs or cartels Prevent marijuana from moving out of states where it is legal Prevent use of state-legal marijuana sales as a cover for illegal activity Prevent violence and use of firearms in growing or distributing marijuana Prevent drugged driving or exacerbation of other adverse public health consequences associated with marijuana use Prevent growing marijuana on public lands Prevent marijuana possession or use on federal property.
The Legal Landscape--DOJ The Cole Memo Reading between the lines federal government would not interfere so long as states had robust licensure and regulations Rohrabacher-Farr/Blumenauer Amendment Prohibits DOJ from spending funds to interfere with states implementation of their own state laws that authorize use, cultivation, distribution and possession of medical marijuana Must be renewed annually currently is in effect till end of September 2018 Thus even if federal prosecutors were to decide enforcement was warranted per enforcement priorities, they cannot spend federal money to prosecute for now
The Legal Landscape--DOJ The Sessions Memo Rescinded the Cole Memo in January 2018 Effect A walk-back of Obama policy of noninterference? Non-event? Expressly states Cole Memo was unnecessary Does not expressly state a policy of active enforcement Has not resulted in increased threat of federal law enforcement pursuing marijuana-related businesses operating legally under state law
The Regulatory Landscape Indiana DFI Indiana DFI Takes the position that if customer is engaged in a business that is legal under Indiana law, an Indiana financial institution may provide financial services to that customer Caveat Activities of any marijuana-related business are illegal under federal law FIs should be cognizant of this when performing product and customer risk assessments
The Regulatory Landscape Federal Federal Reserve, FDIC and OCC No formal guidance Do not encourage or discourage banking marijuanarelated businesses It is the FI s decision to open, close or refuse any particular account consistent with its risk management policies Regulators will examine FIs for compliance with the Cole Memo and FinCEN guidance Federal Reserve Bank of Kansas City Conditional grant of master account to credit union intending to serve ancillary businesses
The Regulatory Landscape--FINCEN FinCEN BSA Expectations Regarding Marijuana-Related Businesses Issued concurrently with Cole Memo Clarifies how FIs could provide services to marijuanarelated businesses consistent with BSA obligations and aligns with Cole Memo enforcement priorities Does not address the legality of banking marijuanarelated businesses, but was expressly intended to enhance the availability of financial services for marijuana-related businesses
FinCEN Guidance Imposes 3 Operational Requirements #1: Risk Assessment Customer due diligence Verify with state authorities business is duly licensed and registered Review license application and related documentation Request from state authorities available information about business and related parties Understand normal and expected activity for the business, including types of products to be sold and customers to be served Monitor (ongoing) publicly available sources for adverse information about the business and related parties Monitor (ongoing) for suspicious activity Periodically refresh customer due diligence Consider whether business implicates DOJ enforcement priorities or violates state law FinCEN guidance emphasizes importance of this factor
FinCEN Guidance #2: Special Handling of SARs Special Marijuana-specific SAR Filings Marijuana Limited FI reasonably believes based on due diligence that Cole Memo priorities are not implicated or state law is not violated Marijuana Priority FI reasonably believes priorities are implicated or state law is violated Requires comprehensive detail in the SAR Marijuana Termination FI deems it necessary to terminate in order to maintain effective AML compliance program Red Flags to Distinguish Priority SARs related to Cole Memo priorities
FinCEN Guidance #3: CTR Handling Same reporting thresholds and standards Marijuana-related business cannot be treated as a non-listed business so not eligible for an exemption
The Dilemma O pportunity vs. Risk Banking a marijuana-related business violates federal law Risk of prosecution low, but uncertainty FinCEN Guidance adherence is not a defense to BSA violation Forfeiture risk--personal and real property Operational burden is significant The opportunity is great
The Result for the Marijuana Industry
The Result for the Marijuana Industry Banking Services Are Scant 368 FIs actively banking marijuana businesses Operate under false pretenses Cash basis Financing Private investment Collateral issues Bankruptcy issues
Thank You! Lori Jean Krieg DeVault LLP 4101 Edison Lakes Parkway Suite 100 Mishawaka, IN 46545 574-807-2380