Regulation

Cannabis Businesses and State Banks: a Possible Solution to a Difficult Issue

/ Saiber LLC

One of the more frustrating aspects of the cannabis industry for business owners is the lack of available banking services.  Many banks are hesitant to provide banking services to the cannabis industry because of the conflict between state legality and federal illegality, not to mention the obligation of banks to file Suspicious Activity Reports for transactions that may violate the Bank Secrecy Act.  While the number of banks providing services to the cannabis industry is growing, obtaining banking services is still very challenging for cannabis entrepreneurs.  The standoff between banks and the cannabis industry manifests in many frustrating ways, including but not limited to strictly cash businesses, banks who charge excessive services fees to cannabis business clients and the need to use credit unions in lieu of traditional banks (who themselves are fighting their own legal battles).

Iconic image of a bank.

Recently, California proposed an idea that could very well reshape the entire cannabis industry: a state sponsored bank for cannabis businesses.  California State Treasurer John Chiang and Attorney General Xavier Becerra are planning to conduct a feasibility study to test whether a California state bank would help California’s many cannabis businesses.

“We are contending with the emergence of a multi-billion dollar cannabis industry that needs banking services, and a private banking industry that is stymied by federal law in meeting the needs of the new industry,” Chiang said.

Continue reading →

Jeff Sessions Rescinds Cole Memorandum

/ Saiber LLC

On January 4, 2018, Attorney General Sessions unveiled a new policy that effectively rescinds the Cole Memorandum, which set forth the Obama Administration’s position that the federal government would not generally not enforce cannabis laws in states where it is legal.  This is an about-face from General Sessions’ recent testimony where he suggested he would maintain the Obama Administration’s position.  General Sessions’ new policy comes at a time where support for legalization has never been higher, as a recent Gallup poll suggested 64% of Americans favor legalization.  Unlike the Cole Memorandum, which discouraged enforcement of cannabis laws, Gen. Sessions’ policy allows US Attorneys to exercise their own judgment as to whether to enforce cannabis laws.

Jeff Sessions

Clearly, General Sessions’ announcement has the potential to have a major impact on the legal cannabis industry.  His new policy, though, has already started a political battle.  Cory Gardner, the Republican Senator from Colorado, immediately took to Twitter to oppose General Sessions’ action, arguing that cannabis policy should be a states’ rights issue.  Sen. Gardner stated that he was “prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”  Presumably, the commitment Sen. Gardner spoke of was adherence to the Cole Memorandum.

Continue reading →

Attorney General Sessions and Marijuana Laws

/ Saiber LLC

Attorney General Jeff Sessions, the nation’s top law enforcement officer, is an outspoken critic of marijuana.  How Attorney General Sessions approaches marijuana, both medical and recreational, has the power to shape, enhance or destroy the industry.  One of the core issues for legal marijuana businesses is the federal illegality of marijuana: state legalization does not change the Controlled Substances Act, 21 U.S.C. 13, which still classifies marijuana as a Schedule I controlled substance.  The conflict between states where marijuana is legal and the federal laws criminalizing marijuana creates a legitimate federalism concern.

Portrait of Attorney General Jeff Sessions.

Before Attorney General Sessions was appointed, marijuana businesses could rely on some limited federal guidance.   Former Obama Administration Deputy Attorney General James M. Cole issued a memorandum to all U.S. Attorneys on August 29, 2013 (the “Cole Memorandum”) explaining the Department of Justice’s (“DOJ”) position on the limited scenarios where federal law enforcement should enforce federal marijuana laws, which primarily address the availability and/or provision of marijuana to children and the diversion of marijuana across state lines.  Soon thereafter, the Department of the Treasury Financial Crimes Enforcement Network issued a memorandum to financial institutions about their role in marijuana businesses (the “FinCEN Memorandum”) which, for all intents and purposes, adopted the positions taken by the DOJ as set forth the Cole Memorandum.

Continue reading →