Major federally regulated banks have stated that they have no plans to do business with New York’s five medical marijuana companies licensed under the Compassionate Care Act, due to be operational this January.
Though cannabis companies may be compliant with state laws, they pose a risk to financial institutions because marijuana is still a federally illegal Schedule I substance — which puts it in the same category as heroin (which freaks people out).
“While the use of medical marijuana is legal under applicable state laws in some states, the manufacture, distribution, and use of marijuana is still illegal under federal law,” a spokesperson from Wells Fargo tells the Voice. “Our policy of not banking marijuana-related businesses is based on applicable federal laws.”
While there is no law against banking with cannabis companies, doing so still poses a risk, says Alan Brochstein, founder of New Cannabis Ventures. “While they’re not specifically prohibited, it’s just a regulatory burden,” he says. “If there’s any chance at all if you as a bank are enabling illegal activity, you have too much to lose.”
In February 2014, the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued guidelines intended to clarify how financial institutions could provide services to cannabis businesses. “Now that some states have elected to legalize and regulate the marijuana trade, FinCEN seeks to move from the shadows the historically covert financial operations of marijuana businesses,” FinCEN director Jennifer Shasky said when the guidelines were announced.
But in lay terms, Brochstein says, the FinCEN guidelines didn’t give banks a green light to do business with the green industry, and many remain unwilling to do so, disabling those in the cannabis industry from using mainstream credit cards or setting up bank accounts with money earned from cannabis sales.
“While there has been some guidance, and we’re watching that, we stick pretty close to the fact [marijuana is] not federally legal, and so we want to make sure we’re compliant with federal regulations,” a spokeswoman for JPMorgan Chase tells the Voice. “Our regulators could take issue with us,” she says. “They control our ability to operate.”
None of the New York–based medical marijuana companies have detailed which financial institutions they plan to work with. To avoid all-cash transactions, companies like Columbia Care, which has plans to work with a financial institution, plan for dispensary customers to use ATM or debit cards. However, in many states that already have functional marijuana programs, an all-cash industry poses security concerns.
A bill introduced by U.S. senators Kirsten Gillibrand (D-N.Y.), Cory Booker (D-N.J.), and Rand Paul (R-Ky.) proposes to remove federal restrictions that block banking with the cannabis industry, allowing businesses to process payroll, work with the IRS, and elevate the degree of safety and security already available to other businesses. Taylor West, deputy director of the National Cannabis Industry Association (NCIA), says the banking portion of the Carers Act is the most promising part of the legislation.
“That really is what would have the biggest impact on current patients’ ability to feel comfortable and safe from prosecution.”