Chairman Crapo Outlines Concerns with Cannabis Banking Legislation
Requests feedback on potential changes to address public health and safety issues
WASHINGTON – Senate Banking Committee Chairman Mike Crapo (R-Idaho) is inviting public feedback on ways to address public health and money laundering concerns with cannabis banking. Input is also requested on “Operation Choke Point,” an Obama-era initiative in which federal agencies devised and relied upon a list of politically disfavored merchant categories (e.g., firearm manufacturers, payday lenders, etc.) with the intent of “choking off” these merchants’ access to payment systems and banking services.
“I remain firmly opposed to efforts to legalize marijuana on the federal level, and I am opposed to legalization in the State of Idaho,” said Chairman Crapo. “I also do not support the SAFE Banking Act that passed in the House of Representatives. Significant concerns remain that the SAFE Banking Act does not address the high level potency of marijuana, marketing tactics to children, lack of research on marijuana’s effects, and the need to prevent bad actors and cartels from using the banks to disguise ill-gotten cash to launder money into the financial system. I welcome input from all interested parties on how to thoughtfully address these concerns.”
Currently, 33 states have some form of legal marijuana for a variety of uses. This has created challenges for businesses in those states and has resulted in increased pressure for depository and financial institutions to provide financial services to both state-sanctioned businesses and ancillary services providers that may provide services to state-sanctioned businesses. The ancillary service providers offer a variety of services to state-sanctioned businesses, such as legal services, plumbing services, fertilizers and other agricultural supplies, real estate, and leasing, among many others. As a result, Senators Jeff Merkley (D-Oregon) and Cory Gardner (R-Colorado) introduced S. 1200 on April 11, 2019. While marijuana would still be illegal at the federal level, this proposed legislation seeks to provide legal certainty for banks who wish to serve not only marijuana companies, but also the ancillary service providers, meaning that banks can accept cash from legally-operating state cannabis companies and related service providers without the fear of adverse actions being taken against them by federal financial regulators.
On July 23, 2019, the Senate Banking Committee held a hearing titled, “Challenges for Cannabis and Banking: Outside Perspectives.” At the hearing, Senator Crapo discussed his concerns with the public health and safety issues surrounding marijuana; legacy cash and money laundering; FinCEN guidance and rulemaking; interstate commerce and banking; and initiatives similar to “Operation Choke Point.”
Options for addressing these concerns include, but are not limited to, the following:
- Add public health and safety solutions as a requirement for banks to do business with legally-operating state cannabis companies. Options to consider include THC potency; clear and conspicuous disclosures on products; marketing; effects on minors, unborn children and pregnant women; and age restrictions, among other considerations.
- Prevent bad actors and cartels from using legacy cash and the financial system to disguise ill-gotten cash or launder money.
- Update 2014 FinCEN rulemaking and guidance regarding marijuana-related businesses, and ensure FinCEN has all of the necessary tools it needs to prosecute money launderers and promulgate rulemakings.
- Respect state rights in interstate commerce and banking for institutions who operate in multiple states with different state rules.
- Eliminate “Operation Choke Point” and preventing future “Operation Choke Point” initiatives. Under fear of retribution, many banks have stopped providing financial services to members of lawful industries for no reason other than political pressure, which takes the guise of regulatory and enforcement scrutiny.
Public feedback is requested on the following issues that include potential options for addressing concerns and questions outlined below. Interested parties may submit proposals to Committee staff at firstname.lastname@example.org.
Issue 1: Options for addressing public health and safety concerns.
There is a lack of federal research evaluating marijuana and its effects. The National Institute on Drug Abuse has found that marijuana use significantly impairs a user’s judgment, motor skills and reaction time. Other studies have found a direct relationship between blood THC concentration and impaired driving ability. Additionally, the Surgeon General released an advisory on Marijuana’s Damaging Effects on the Developing Brain, noting that THC binds to receptors in the brain, producing a euphoria and a variety of harmful effects, including intoxication, and memory and motor impairments. The Surgeon General also noted the harmful effects of THC use during pregnancy and on young developing brains. Surgeon General Adams also released an Advisory on e-cigarette use among youth, and the recent surge in the market, which he states is a cause for great concern.
The appropriate federal agencies shall conduct a national study on the effects of marijuana and publicly report on considerations related to public health and safety of cannabis, cannabis products and their delivery mechanisms, including as it pertains to the marketing and varying potency of cannabis and cannabis products, particularly, but not limited to, minors, pregnant women and effects on unborn children. The federal government agencies, within the study, should also make recommendations on the manufacturing and marketing practices of the cannabis industry to minimize their appeal to minors and harm to minors, pregnant women and unborn children.
The studies shall include the following:
a) The types and delivery mechanisms (e.g., smoking, vaping, edibles, drinking, etc.) for all cannabis and cannabis products currently available or under development in the marketplace;
b) The potency of the cannabis and cannabis products, available in their final form, and how the potency has changed over time, including how it impacts addiction;
c) How various potencies and serving sizes may impact individuals’ health and safety, and whether different potencies and serving sizes are harmful to individuals’ health and safety, including how human physiology affects impairment, particularly as it relates to minors and pregnant women;
d) How different types of products and delivery mechanisms have affected minors’ access to cannabis and cannabis products, and how it impacts purchasing decisions over an individual’s lifetime;
e) The degree to which different levels of potency, serving sizes or consumption impair individuals’ judgment or cognitive reasoning, and trends of the prevalence of individuals operating a vehicle or machinery under the influence of cannabis; and
f) The extent to which other jurisdictions with various levels of cannabis legalization have made determinations, as reflected in law or public policy, on the health and safety effects of cannabis or cannabis products, require disclosure of potency or serving sizes, and have restricted or otherwise limited the potency of cannabis cultivated, sold, or purchased in their respective jurisdictions.
Question: Are there any other additional health considerations, other than those explicitly stated in the outline, that should be considered, and which federal agencies are most appropriate to be involved in the aforementioned study?
Considerations for addressing health and safety concerns associated with financial institutions who provide financial services to cannabis-related legitimate businesses:
a. Each state must implement clear and conspicuous disclosure of THC potency of cannabis and cannabis products (on a percentage and milligram basis in final products) through a label on the final packaged products at the point of sale. Among the contents of any state labeling requirements should be proper warnings, contaminants, potency and serving sizes, and ingredients;
b. A potency threshold of 2 percent THC content on a percentage and milligram basis in the final product;
c. The 2 percent threshold will apply until each state legislature affirmatively determines the appropriate level of THC potency for cannabis and cannabis products (on a percentage and milligram basis in final products) that appropriately addresses the health and safety risks to its citizens;
d. Preventing distribution to anyone under the age of 21;
e. Preventing the banking of edibles that are in many kid-friendly forms like candies and gummies; and
f. Preventing the banking of high potency THC vape and e-cigarette products.
Question: Are there any other additional health considerations that should be attached to the safe harbor?
Issues 2, 3: Options for addressing legacy cash and money laundering.
FinCEN Rulemaking and Guidance: Amend the Act to direct FinCEN to promulgate a rulemaking within a specified period of time, after enactment of this Act, to address issues pertaining to the provision of financial services to the marijuana industry and ancillary businesses, including Suspicious Activity Reports (SARs) and dealing with legacy cash.
FinCEN will retain meaningful oversight authority of the activities between cannabis-related legitimate businesses (CRLBs) and their financial institutions. FinCEN will be required to promulgate rulemakings and update their guidance pertaining to Bank Secrecy Act (BSA) expectations for marijuana-related businesses to address the following:
a) Requiring thorough customer due diligence standards;
b) Thorough processes and procedures to ensure funds from cannabis-related businesses and service providers are not associated with illicit activities;
c) Clearly delineating the BSA obligations of financial institutions when engaging in business with cannabis-related businesses or individuals who engage with cannabis-related businesses, including for indirect relationships such as ancillary businesses;
d) Requiring the filing of SARs in a manner that preserves FinCEN’s ability to address illicit activity; and
e) Clarifying the treatment of hemp.
Additionally, Section 7 of S. 1200 should be amended to ensure that the Federal Financial Institutions Examination Council (FFIEC) must consult with FinCEN on its development of uniform guidance and examination procedures for depository institutions as they relate to CRLBs and service providers.
Suspicious Activity Reports: Amend Section 6 of the Act regarding FinCEN’s guidance to ensure the guidance does not impair the ability of FinCEN to deter illicit activity, consistent with the rulemaking described above.
Question: In such a rulemaking, what additional requirements are needed for financial services firms to ensure that bad actors are not accessing the financial system, the sources of cash entering the financial system are fully understood and validated, Suspicious Activity Reports continue to be appropriately filed, and expectations for indirect relationships are clear commensurate with their risk?
Issue 4: Options for addressing interstate commerce and banking.
Interstate Commerce: Amend the Act to clarify that financial institutions must comply with all applicable laws related to cannabis and cannabis products in each respective state in which they operate, and ensure that nothing in the Act would facilitate interstate commerce of cannabis.
Additionally, given the tension between the state legality of cannabis and federal illegality, it should be made clear that the federal banking regulators should consult with state regulators ahead of any implementation, or give some notice.
Question: Does the bill, as drafted, facilitate interstate commerce? Should there be an explicit statement in the bill clarifying that the bill does not permit interstate commerce of marijuana?
Issue 5: Options for addressing hemp provisions and “Operation Choke Point.”
Add the following new provisions:
a. House hemp provision; and
b. The Financial Institution Customer Protection Act language included in the House-passed version of H.R. 1595, but with the following additional amendments: (1) change the term “may” to “shall”; and amend to reflect and add the following:
i. (1)An appropriate Federal banking agency shall not formally or informally request or order a depository institution to terminate a specific account or group of customer accounts or to otherwise restrict or discourage a depository institution from entering into or maintaining a banking relationship with a specific customer or group of customers unless -
ii. (A) the institution is engaging in unsafe or unsound practices or violating a rule, law, regulation or other condition imposed in writing due to its relationship with the specific customer.
iii. (B) an appropriate Federal banking agency shall not take any action under (A) with respect to a group or category of customers and shall only take action under (A) after it has made a determination in writing with respect to specific customer that the conditions set forth under (A) are satisfied.
iv. (C) for purposes of (A), reputational risk shall constitute neither an unsafe or unsound practice nor a violation of rule, law, regulation or other condition imposed in writing.
Under (b) Notice Requirement, amend (2) to reflect the following: (2) Justification Requirement – A justification described under paragraph 1(A) should only be based on if the institution engaged in an unsafe or unsound practice or violated a rule, law, regulation or other condition imposed in writing.
Under (c) Customer Notice, add the following: (2) In the written notice and determination, the depository institution shall also provide the determination and justification for why the termination is needed, including any specific laws or regulations, or unsafe and unsound practices, the depository institution believes are being violated by the customer or group of customers.
Question: Do the proposed amendments to the Financial Institution Customer Protection Act, as passed in the House, adequately curb potential future choke point scenarios?
Additional amendments for consideration:
Studies: Strike Sections 8, 9 and 10 directing studies. Section 8 of S. 1200 requires the Federal banking regulators to issue an annual report to congress on diversity and inclusion; Section 9 of S. 1200 requires the Government Accountability Office (GAO) to conduct a study on diversity and inclusion; and Section 10 requires the GAO to conduct a study on the effectiveness of reports on suspicious transactions filed.
Preserving Regulatory Actions: Amend the Act to clarify that federal banking regulators can still take certain actions, including enforcement actions, against depository institutions, such as those actions related to poor underwriting and engaging in unsafe or unsound practices.