A federal financial agency released updated guidelines on banking in the hemp industry on Monday, following up on requests from multiple lawmakers to provide clarity on the issue.
The National Credit Union Administration (NCUA) said in its interim guidance that providing banking services to hemp businesses is allowable since the crop and its derivatives were federally legalized under the 2018 Farm Bill. The notice also emphasized the economic potential of hemp and the role credit unions can play as the industry continues to develop.
“Lawful hemp businesses provide exciting new opportunities for rural communities,” NCUA Chairman Rodney Hood said in a press release. “I believe today’s interim guidance keeps with the mission of the nation’s cooperative credit system to serve people who have been overlooked and underserved.”
“Many credit unions have a long and successful history of providing services to the agriculture sector,” he said. “My expectation is that credit unions will thoughtfully consider whether they are able to safely and properly serve lawfully operating hemp-related businesses within their fields of membership.”
Growth in hemp-related commerce will create a need for capital & financial services. Interim guidance gives #creditunions the ability to step in & provide hemp-related businesses these customary financial services. Learn more: https://t.co/otTzUt3tL7
— The NCUA (@TheNCUA) August 19, 2019
— The NCUA (@TheNCUA) August 19, 2019
In a letter sent to Sen. Michael Bennet (D-CO) last month, which the presidential candidate’s Senate office shared exclusively with Marijuana Moment, Hood noted that NCUA was “working on possible future guidance to financial institutions” but that such guidance would be subject to change depending on what regulations the U.S. Department of Agriculture (USDA) ultimately develops.
In the meantime, the new interim guidance notes that “growth in hemp-related commerce could provide new economic opportunities for some communities, and will create a need for such businesses to be able to access capital and financial services” while clarifying that credit unions “may provide the customary range of financial services for business accounts, including loans, to lawfully operating hemp related businesses within their fields of membership.”
While NCUA said that it is “generally a credit union’s business decision as to the types of permissible services and accounts to offer,” it highlighted the need to comply with the Bank Secrecy Act (BSA) and with Anti-Money Laundering (AML) requirements, in particular:
—Credit unions need to maintain appropriate due diligence procedures for hemp-related accounts and comply with BSA and AML requirements to file Suspicious Activity Reports (SARs) for any activity that appears to involve potential money laundering or illegal or suspicious activity. It is the NCUA’s understanding that SARs are not required to be filed for the activity of hemp-related businesses operating lawfully, provided the activity is not unusual for that business. Credit unions need to remain alert to any indication an account owner is involved in illicit activity or engaging in activity that is unusual for the business.
—If a credit union serves hemp-related businesses lawfully operating under the 2014 Farm Bill pilot provisions, it is essential the credit union knows the state’s laws, regulations, and agreements under which each member that is a hemp-related business operates. For example, a credit union needs to know how to verify the member is part of the pilot program. Credit unions also need to know how to adapt their ongoing due diligence and reporting approaches to any risks specific to participants in the pilot program.
—When deciding whether to serve hemp-related businesses that may already be able to operate lawfully–those not dependent on the forthcoming USDA regulations and guidelines for hemp production–the credit union needs to first be familiar with any other federal and state laws and regulations that prohibit, restrict, or otherwise govern these businesses and their activity. For example, a credit union needs to know if the business and the product(s) is lawful under federal and state law, and any relevant restrictions or requirements under which the business must operate.
“Hemp provides new opportunities for communities with an economic base involving agriculture,” the notice states. “The NCUA encourages credit unions to thoughtfully consider whether they are able to safely and properly serve lawfully operating hemp-related businesses within their fields of membership.”
“Lending to a lawfully operating hemp-related business is permissible.”
After USDA releases its rules for the hemp industry, which are expected to come ahead of the 2020 planting season, NCUA said it “will issue additional guidance on this subject.”
Senate Majority Leader Mitch McConnell, who like Bennet has also pressured federal regulators to clear up confusion around hemp banking, took credit for NCUA’s response and celebrated the new guidance.
At @senatemajldr’s request, @TheNCUA issues guidance to assist legal #hemp industry. Hearing concerns from his constituents, McConnell urged NCUA to provide clarification to help address this barrier in #Kentucky. @KYCreditUnions applauds the positive news https://t.co/5kaQmxJE1x
— Senator McConnell Press (@McConnellPress) August 19, 2019
“I’m delighted to hear the NCUA has answered my call on behalf of Kentuckians to ensure the legal hemp industry can access much-needed financial services,” McConnell said in a press release. “Although President Trump signed into law my initiative last year to remove hemp from the federal list of controlled substances, many of my constituents have told me about their difficulty receiving loans and other services that are necessary to successfully run a hemp business.”
“Through this guidance by the NCUA, I look forward to more hemp farmers, processors and manufacturers starting or growing their operations with the help of Kentucky’s credit unions,” he said. “As Senate Majority Leader, I’ll continue advocating for Kentucky’s priorities throughout the federal government, and I’m proud of today’s positive news.”
Credit unions have generally been friendlier to the marijuana and hemp industries than have conventional banks, and NCUA has similarly taken a more proactive role in evolving to meet the demands of these burgeoning markets.
For example, the agency’s head clarified earlier this month that credit unions wouldn’t be punished simply for serving hemp businesses so long as they were following standard procedures. NCUA also released a draft rule in July that would allow people with past drug convictions to work at credit unions.
Cannabis banking issues have received significant congressional attention this session, with a bipartisan consensus emerging around creating a legislative fix so that hemp and marijuana businesses are able to access financial services.
The hemp industry in particular has enjoyed bipartisan support since the crop was legalized, but while marijuana remains a federally controlled substance, more lawmakers from across the aisle are expressing interest in affording cannabis businesses the same access in order to increase financial transparency and mitigate public safety risks associated with operating on a largely cash-only basis.
The House Financial Services Committee approved a bill in March that would protect banks that service marijuana businesses from being penalized by federal regulators, and the Senate Banking Committee also held a hearing on the issue last month.
Banking Chairman Mike Crapo (I-ID), who suggested earlier this year that his panel wouldn’t convene to discuss the matter as long as cannabis is federally illegal, has since taken a stance that the issue needs to be resolved.
But while advocates hoped that legislation to address marijuana banking problems would be taken up by the full House ahead of the August recess, that window closed and attention is now turned to a potential hearing in the fall.
Photo courtesy of Brendan Cleak.
Marijuana Businesses Could Get Federal Disaster Relief Funds Under New Congressional Bill
Marijuana businesses impacted by recent natural disasters or that have experienced financial distress due to the coronavirus pandemic would be eligible for federal relief programs under new legislation introduced in the House of Representatives and Senate on Thursday.
Because cannabis remains federally prohibited, the Small Business Administration (SBA) has explicitly denied the industry—and businesses that work indirectly with it—access to its relief programs like other markets. That means, for example, marijuana farmers in states like California and Oregon that have seen their crops destroyed by wildfires are fully dependent on state and local assistance.
The new Small Business Disaster Relief Equity Act would resolve that problem, stipulating that disaster- or COVID-related services, grants, loans and tax benefits that are made available through federal agencies or congressional legislation cannot be denied to cannabis businesses solely because of the nature of their work, as long as it is in compliance with state law.
What’s more, the bill states that the the heads of federal agencies that administer disaster relief such as SBA “shall, to the greatest extent practicable, allow State-legal cannabis businesses to retroactively apply for such disaster assistance.”
Sens. Ron Wyden (D-OR) and Jeff Merkley (D-OR) and Reps. Earl Blumenauer (D-OR) and Peter DeFazio (D-OR) filed the companion bills.
“Cannabis businesses in Oregon hurt by the blazing wildfires or any other disaster shouldn’t be shut out from federal relief simply because the federal government is stuck in yesteryear,” Wyden said in a press release. “These legal small businesses employ thousands of workers and support our struggling economy. If they need federal support, they should get it. Full stop.”
SBA recently confirmed to Marijuana Moment that while it opened a disaster relief loan program for Oregon businesses damaged or destroyed by the wildfires, the cannabis industry isn’t eligible. People working in the state-legal market whose primary residences were impacted could still apply, however, but not if they conduct their business from home.
Blumenauer, cochair of the Congressional Cannabis Caucus, said that many marijuana companies in his state “have faced catastrophic disruptions because of wildfires.”
“There’s no reason why these legitimate businesses shouldn’t have access to the federal support meant to help businesses survive unprecedented disasters,” he said. “Our legislation will help ensure these businesses and their workers are not left behind.”
According to the Oregon Liquor Control Commission, 20 percent of marijuana businesses in the state were encouraged to evacuate due to the fires. Regulators are also asking cannabis business owners to fill out a survey so they can get a better sense of how extensive the damage is.
As of this week, seven cannabis business have been destroyed by the fires and at least a dozen have been damaged, Oregon Live reported.
“Whether you’re for or against state-legal cannabis, we can all agree that families in all of our communities are struggling to keep the lights on and stay afloat during this turbulent time—and that they need and deserve support,” Merkley said. “That includes thousands of small business owners, workers and their families who rely on state-legal cannabis businesses for their livelihoods.”
“We have to make sure those families won’t be shut out from critical assistance that can make a real difference,” he said.
The timing of the natural disasters in Oregon isn’t ideal, either, as consumer demand for marijuana products has been up amid the pandemic. In July, the state broke its record for cannabis sales, with about $106 million in medical and recreational cannabis purchases. Oregon’s Office of Economic Analysis said in a report on Wednesday that “since the pandemic began, the increase in recreational sales have been more than 30 percent above forecast.”
Blumenauer in April led a letter with 34 bipartisan members of Congress calling on House leadership to include language in COVID-19 stimulus legislation to allow marijuana businesses to access federal disaster relief. He followed up by filing standalone legislation—the Emergency Cannabis Small Business Health and Safety Act—that would address the problem specifically when it comes to coronavirus relief.
Wyden similarly led a letter with nine other senators in April, asking the chamber’s leadership to extend federal assistance to the cannabis market. Civil rights groups and industry stakeholders have also made these calls to action in recent months.
“It’s ridiculous that legal businesses here in Oregon are being denied critical wildfire aid because of outdated policies handed down from Washington, D.C.” DeFazio said. “Cannabis businesses employ thousands across Oregon and are a vital economic engine for our state. This important legislation will ensure that these businesses are eligible for the same aid as every other business impacted by the 2020 wildfires.”
Read text of the marijuana disaster relief bill below:
Photo courtesy of Philip Steffan.
Congressional Research Service Analyzes Marijuana Expungements And Cannabis Immigration Issues
The Congressional Research Service (CRS) released new two reports on marijuana policy—one dealing with the immigration implications of federal prohibition and the other looking at expungements provisions in pending legislation to deschedule cannabis.
For the immigration-focused report published last week, CRS outlined how being convicted of a marijuana crime, admitting to using cannabis (even in a legal state) or working in the marijuana industry can carry four “key consequences” for non-citizens. They can be deemed inadmissible to the U.S., deported, lose immigration relief benefits and be denied naturalization.
The threat of inadmissibility for state-legal cannabis activity even extends to people who simply invest in the market, CRS said. The report makes a point of reiterating several times that just because something is legal under state law doesn’t mean there are carve outs in federal immigration statutes.
There are also immigration relief benefits that individuals could lose out on because of marijuana-related activities. They include the “waiver of certain criminal inadmissibility grounds, cancelation of removal, voluntary departure, withholding of removal, protection under the Convention Against Torture, asylum, Temporary Protected Status (TPS), and Deferred Action for Childhood Arrivals (DACA),” the report states.
With respect to naturalization restrictions, CRS points out that the Trump administration in 2019 issued a memo clarifying that having a cannabis conviction or admitting to working in the marijuana industry “can bar an individual from establishing [good moral character], even if the marijuana-related activity did not violate applicable state or foreign laws.”
CRS also recognized in the new report that legislation to federally deschedule marijuana—the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act—would help resolve the immigration dilemma, as the bill “would prohibit the denial of any immigration benefit or protection to aliens who have participated in any marijuana-related activity.”
The MORE Act was initially expected to be scheduled for a House of Representatives floor vote this week, but following pushback from certain Democratic lawmakers who felt it would look bad to advance the bill before approving additional COVID-19 relief, it was postponed. Now it’s expected to receive a vote later in fall, likely after the election.
In a separate report also released last week, CRS looked specifically at the MORE Act’s expungement provisions.
The bill would mandate that federal district courts expunge the records of individuals with federal marijuana convictions within one year of the bill’s enactment. It would also allow individuals with cannabis-related convictions to petition courts to have their records cleared prior to the one-year review period.
The Capitol Hill research office noted that federal marijuana convictions represent just a small fraction of the country’s total cannabis convictions, with most being carried out at the state, county and local levels. Relatively few federal cases are for possession alone; most are for trafficking-related charges. According to the U.S. Sentencing Commission, cannabis trafficking convictions are on the decline, with fewer than 2,000 cases occurring last year.
“The expungement provision in the MORE Act could raise several issues for policymakers,” CRS said. “The legislation would only address expungement of criminal records related to federal marijuana offenses; it would not provide relief from convictions for marijuana offenses in state courts.”
But CRS also floated potential solutions such as providing “an incentive for states to adopt uniform laws regarding the expungement of convictions for state level marijuana offenses.”
“For example, Congress may place conditions on federal criminal justice funding, such as the Edward Byrne Memorial Justice Assistance Grant (JAG) program, or provide funds to states to help them implement expungement programs. Congress may consider providing guidelines to states on how to structure their expungement programs,” the report states.
CRS also noted that while the courts could be compelled to expunge records, the bill doesn’t address the fact that certain private companies harvest data on arrests and convictions when they’re publicly available.
“Policymakers might consider whether federal courts should be required to send lists of criminal records that would be expunged under the MORE Act to private background check companies in their respective districts to notify them of the expungement,” the report said.
CRS has dedicated significant time to exploring cannabis policy issues lately. Earlier this month, for example, it released a separate report that identified multiple problems caused by conflicting federal and state marijuana laws.
Photo courtesy of Brian Shamblen.
Oregon Marijuana Sales Spike Could Continue As Consumers ‘Permanently Adjust Their Behavior’ Following COVID
Record-setting Oregon marijuana sales continue to be a bright spot in the state’s coronavirus-slowed economy, state analysts reported this week, but a convergence of unknowns—including the end of federal coronavirus relief and a possible rise in cannabis prices due to devastating wildfires—could still mean a rocky road ahead for consumers.
“Marijuana sales continue to be strong,” Oregon’s Office of Economic Analysis wrote in a quarterly revenue forecast published on Wednesday. “Since the pandemic began, the increase in recreational sales have been more than 30 percent above forecast.”
The increase tracks with other more established cannabis markets, such as those in Colorado, Washington and Nevada, which have also seen “strong gains” since the pandemic, the office said. “There are a number of likely reasons for these higher level of sales and expectations are that some of these increases will be permanent.”
Analysts also expressed a rosier outlook on the future of the state’s marijuana market than they did in last quarter’s report, which acknowledged a spike in sales since the pandemic began but concluded that business was eventually “expected to mellow” as incomes fell and bars reopened. Officials now forecast Oregon will see “somewhat more” in sales than previously projected.
The state has recently seen a string of record-setting months for cannabis sales. Over the summer, monthly cannabis sales had averaged more than $100 million, according to an Oregon Liquor Control Commission (OLCC) report.
The projected uptick in sales will mean an extra $30 million in marijuana tax revenue for the state during its two-year budget period ending in 2021. Total adult-use cannabis taxes for that period are now forecast to end up at more than $276 million.
“Factors leading to increases in sales include higher incomes due to federal support, increased stressors in everyday life, reductions in other forms of entertainment or recreational opportunities, and simply more time on one’s hand be it due to a COVID-related layoff, or increased working from home,” the report said.
“A key question is now that the federal aid is gone and other entertainment options return in the months ahead, will some of this increase in sales in recent months subside?” the Office of Economic Analysis wrote in the new report. “In a recent meeting of our office’s marijuana forecast advisory group, the broad consensus was that yes, some of these sales will come off, but not entirely so. And the longer the pandemic lasts, the more likely customers will permanently adjust their behavior as they become accustomed to their new routines and buying patterns.”
For now, the bulk of the increases appear to be driven by existing consumers. While “indications are that the customer base is broadening some as the market grows due to more users trying an increasingly socially acceptable product and ongoing converts from the black market to the legal market,” the report said, the increase “is more likely to be due to larger or more frequent sales to existing consumers than due to more consumers alone.”
“One item to watch moving forward are prices,” analysts wrote. “In recent years the supply of marijuana has greatly outstripped the demand, leading to lower prices. This is great news for consumers. Given that marijuana is a normal good, lower prices have led to larger quantities sold. But now that demand has increased, while supply has held steady, and with the potential impact of the wildfires right as growers are prepping for harvest, this balance in the market may shift… As such, it may be that prices rise, or at least not decline like they have in recent years.”
As far as tax revenue goes, any price increase would likely lead to more money for the state, “as the decline in quantity sold is not large enough to outweigh the price impact,” the report said.
How cannabis revenue is spent would also be affected by a drug decriminalization ballot proposition, Measure 110, that voters will decide in November. While the initiative isn’t expected to change the amount of taxes collected, it would redirect marijuana tax funds to expand drug treatment programs. “Whether current programs receiving marijuana tax revenue would ultimately see budgetary impacts,” analysts said, “would remain up to the Legislature should voters approve the measure this fall.”
Measure 110, which broadly seeks to reframe problem drug use in medical rather than criminal terms, is one of two key drug-reform measures on Oregon’s ballot in less than six weeks. The other would legalize the therapeutic use of psilocybin, the main psychoactive ingredient in psychedelic mushrooms. That measure would be the first of its kind in the U.S., although Canada has recently granted some patients immunity from that country’s prohibition on psilocybin.