Cannabis Banking

Position

  • As more states legalize cannabis for medical and/or recreational use, it is critically important that cannabis-related businesses (CRBs) have access to services provided by the traditional banking system.
  • ICBA does not advocate for the outright legalization of cannabis but does advocate for federal legislation establishing an effective “safe harbor” from federal sanctions for banks that choose to do business with CRBs in states where the business is legal under state law.
  • Federal banking regulators should not be able to threaten or limit a bank’s deposit insurance, downgrade a loan made to a CRB, force a depository institution to cease providing banking services to a CRB, or take any other prejudicial action in a state where cannabis is legal, solely because the customer is a CRB.
  • ICBA opposes any effort by a state or municipality to establish a publicly owned bank or credit union to service the cannabis industry. Traditional banks are fully capable of serving this industry with the creation of an effective “safe harbor” to protect them from government or regulatory reprisal.

Background

Cannabis is currently legal for recreational and/or medical use in 31 states and the District of Columbia. According to a 2016 study by the Tax Foundation, a mature cannabis industry could generate up to $28 billion in tax revenues for federal, state, and local governments.

At the federal level, cannabis remains illegal under the Controlled Substances Act. As more states legalize cannabis and this segment of the business community continues to mature, the conflict between state and federal law creates increasingly significant legal and compliance concerns for state and federally chartered banks that wish to service cannabis-related businesses (CRBs). Due to legal and regulatory uncertainty, CRBs lack access to the traditional banking system forcing them to operate mostly in cash. Cash-only businesses, especially those with a high volume of revenue, pose a significant risk to public safety.

While the Obama-era Departments of Justice and Treasury issued federal guidance for CRBs and financial institutions (DOJ’s 2014 “Cole Memo” and the Financial Crimes Enforcement Network’s 2014 FIN-2014-G001), the Cole Memo was rescinded by the current Justice Department. Further, most financial institutions found the initial guidance insufficient because it did not address the illegal status of cannabis under the Controlled Substances Act. This uncertainty creates a “whipsaw effect” that makes working with CRBs untenable for the majority of financial institutions in states where it is legal.

Given the disparity between federal and state law, community banks should not be placed at a competitive disadvantage with the establishment of a publicly-owned bank or credit union to service CRBs. Traditional banks, with the protection of a safe harbor, are fully capable of serving the banking needs of CRBs. Moreover, history clearly indicates that even public banks founded for narrow, specialized purposes inevitably expand beyond their original scope. Credit unions and the Farm Credit System have expanded well beyond their original limitations and now compete directly with community banks. Once established, a state or public bank would advocate relentlessly for additional powers to assure its longevity and survival, to the detriment of private-sector competitors.

Staff Contact: Aaron Stetter