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REI Exec Discussed Entering Marijuana Industry, But Company Wants No Part Of It

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High-level staff at outdoor recreational outfitter REI have internally discussed entering the marijuana industry, but amid ongoing uncertainty on the federal level, the company is not seriously considering such a move.

“We’ve talked about this at REI, because it makes a lot of sense,” Elizabeth Dowd, REI’s divisional vice president for retail experience, said on Saturday at a trade show in California.

“But [with] the current state of things in the world and the current political administration,” she added,” there’s no way in hell that we would go near it really, at this point. Until we feel like we’ve actually progressed beyond 50 years ago and we’re not going to get a huge amount of backlash we wouldn’t even entertain the idea.”

See the video of Dowd’s remarks here:

After this story was originally published, REI Director of Communications & Public Affairs Rob Discher reached out to play down Dowd’s comments.

“There’s a distinction between a water cooler conversation that she may have had with one of her peers or a friend at work and a legitimate strategy discussion,” he said, adding that the latter has not happened.

Marijuana is now legal for adult use under the laws of eight states and the District of Columbia. And 29 states and D.C. have comprehensive medical cannabis policies.

Yet ongoing federal prohibition makes banks and most mainstream corporations reluctant to directly or even tangentially work with the cannabis industry. That’s especially true as U.S. Attorney General Jeff Sessions has publicly weighed rescinding Obama-era guidance that generally respects the right of states to implement their own cannabis laws without federal interference.

So it is quite remarkable that a high-level staffer for REI, one of the nation’s most prominent retailers, would openly discuss internal deliberations about the marijuana market, even if vaguely.

Dowd’s comments came during a panel discussion about consumer behavior at last weekend’s Outpost trade show held amidst Northern California’s redwood trees.

It remains unclear to what extent Dowd and other REI staffers seriously weighed an entry into the marijuana industry, and whether its potential involvement would’ve amounted to distributing the drug directly through any of its 154 retail locations — the company is based in Washington State, where recreational marijuana has been legalized — or if it would simply have entailed partnering with existing cannabis businesses on co-branded marketing campaigns that wouldn’t involve the sporting goods company actually touching the plant.

David Hua, CEO of marijuana delivery service Meadow, also spoke on the Outpost panel with REI’s Dowd.

“I think the environment that we’re in right now, it’s touchy. With the federal government, with banking, there’s just a lot of stuff,” he said. “Cannabis is still, it’s growing and it will become pretty large. I don’t see a lot of these bigger brands taking a risk on it.”

But Hua did indicate that those companies who moved first would stand to benefit.

“I think, get on early is a good idea,” he said.

This story was first published by Forbes.

Business

More Banks Welcome Marijuana Businesses, Federal Data Shows

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A steadily growing number of banks are willing to open accounts for marijuana businesses, according to new federal data.

Even as a string of conflicting signals from the Trump administration surrounds the debate about legalization with uncertainty, the number of depository institutions that are actively banking the cannabis industry has increased roughly 18% since the beginning of 2017.

Last January, 340 financial services providers were banking marijuana businesses. That number rose to 400 by the end of September, according to a report released late last month by the Financial Crimes Enforcement Network (FinCEN).

The rise comes despite continued confusion about the federal government’s approach to marijuana as U.S. Attorney General Jeff Sessions — a longtime legalization opponent — has made clear he is considering potential changes to the former administration’s mostly hands-off cannabis enforcement policies.

In 2014, the Obama administration’s Treasury and Justice Departments issued guidance to banks about how to serve the marijuana industry without running afoul of federal regulators. The policy, which requires financial institutions to regularly file reports on their cannabis customers, was intended to provide clarity and assurances to banks. But many have remained reluctant to work with marijuana businesses because of overarching federal prohibition laws.

Under a separate document — the so-called “Cole Memo,” named after the then-deputy attorney general who authored it in 2013 — the federal government set out certain criteria that, if followed, would allow states to implement their own laws mostly without intervention. Those areas concern priorities like preventing youth use, impaired driving and interstate trafficking.

While Sessions testified before Congress in November that the Obama-era guidance is still in effect, he later said that the Department of Justice is actively reviewing potential changes to the policy. He also held a closed-door meeting with anti-legalization activists last month.

Those developments are just the latest in a series of anti-cannabis signals sent by the attorney general over the course of the past year. Meanwhile, a number of anecdotal reports have emerged in recent months about individual cannabis business bank accounts being closed.

Umpqua Bank, for example, reportedly shut down the account of Greenbridge Corporate Counsel this fall after the law firm refused to turn over information about its cannabis clients without their permission.

But the new federal data shows that overall there has been a steady increase in the number of banks and credit unions willing to open accounts for marijuana-related businesses, even as Sessions has hinted that a cannabis crackdown could be in the works.

The new FinCEN report is part of a set of periodic releases in response to frequently requested data under the Freedom of Information Act.

Because of banks’ reluctance to work with marijuana businesses, many growers, processors and retailers operate on a cash-only basis, which can make them targets for robberies.

A growing bipartisan group of members of Congress has sought a legislative solution to the problem. House and Senate bills to provide permanent clarity to the banking industry about working with marijuana businesses have earned increasing cosponsor numbers, but haven’t been scheduled for hearings or votes.

In 2014, the House voted 231 to 192 in favor of an amendment to prevent federal authorities from punishing banks for servicing the legal marijuana industry. But the language was not included in the final version of annual appropriations legislation that year and was not enacted into law. Congressional Republican leaders have since prevented similar measures from even being considered for attachment to subsequent spending bills.

In November, the chair of the House Financial Services Committee used a procedural ruling to block a vote on a cannabis banking amendment offered to a bill on stress testing for financial institutions.

Meanwhile, a congressional budget rider that prevents the Justice Department from interfering with state medical cannabis laws is set to expire on January 19, barring an extension through a still-unresolved Fiscal Year 2018 spending package.

Legalization advocates believe that several more states will enact laws allowing recreational or medical use in 2018.

This piece was first published by Forbes.

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Business

GOP Senator Pulls Back Marijuana Tax Amendment

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Despite saying this week that he would offer an amendment to help marijuana businesses achieve tax fairness, Republican U.S. Sen. Cory Gardner of Colorado did not end up forcing colleagues to vote on the issue during consideration of a broad GOP-led tax reform bill.

As a result, the measure, which would have exempted cannabis growers and retailers who operate legally under state law from a federal penalty on illegal drug sellers, is not currently attached to a broad tax reform bill that Republicans are working to send to President Trump’s desk by the end of the year.

Following a lengthy session during which other members offered various amendments, the Senate approved the legislation on a largely party-line vote early Saturday morning with a margin of 51 to 49.

Gardner was unsure he had enough support in the chamber to approve the amendment in light of the $5 billion price tag that Congress’s Joint Committee on Taxation reportedly scored it with.

Because the tax bill was being considered under a budget reconciliation process that allowed Republicans to avoid a filibuster and advance the proposal with 51 votes instead of 60, the overall plan needed to avoid increasing the deficit by more than $1.5 trillion over the next decade.

Since Gardner’s measure, while focused on allowing marijuana operators to be taxed fairly like other businesses, would in effect amount to a cut from their current rates, it would reduce revenue and add to the deficit.

Nonetheless, conservative anti-tax group Americans for Tax Reform included the measure in a list of “key votes,” calling it “good tax policy.”

“Support for the legislation should not be conflated with support or opposition to legalizing cannabis,” the organization wrote. “Instead, this amendment is about ensuring the federal government does not use the tax code to discriminate against legal businesses.”

Under current federal law, a 1980s provision — section 280E of the Internal Revenue Code — effectively forces cannabis businesses to pay a much higher tax rate than other companies.

“No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.”

The statute was originally intended to to stop drug cartel leaders from writing off yachts and expensive cars, but today its language means that that state-licensed growers, processors and sellers of marijuana — which is still a Schedule I substance under federal law — can’t take business expense deductions that are available to operators in other sectors.

As a result, cannabis businesses often pay an effective tax rate upwards of 65-75 percent, compared with a normal rate of around 15-30 percent.

“Our current tax code puts thousands of legal marijuana businesses throughout Colorado at a disadvantage by treating them differently than other businesses across the state,” Gardner said in a press release upon cosponsoring a standalone bill to reform the provision last month. “Coloradans made their voices heard in 2012 when they legalized marijuana and it’s time for the federal government to allow Colorado businesses to compete. This commonsense, bipartisan bill will allow small businesses in Colorado and other states that have legal marijuana businesses to grow their operations, create jobs, and boost the economy.”

The marijuana reform provision was also not included in the version of the tax legislation recently passed by the House, where that chamber’s Rules Committee blocked floor consideration of an amendment on the issue two weeks ago.

Now, a bicameral conference committee will hammer out the overall differences between the two chambers’ bills into a single proposal that can be sent to the president. It is technically possible that the cannabis amendment could still be inserted in conference, though it would be unusual for congressional leaders to attach a provision that wasn’t approved by either chamber and which concerns a still fairly controversial issue like marijuana.

standalone House bill to shield state-legal marijuana businesses from 280E has 40 cosponsors. The companion Senate legislation has six cosponsors.

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Business

GOP Senator Wants Tax Cut For Marijuana Businesses

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A Republican senator from a state where marijuana is legal is pushing this week to give cannabis businesses a measure of tax fairness.

Sen. Cory Gardner of Colorado wants to attach an amendment to a wide-ranging Republican-led tax reform bill that would allow state-legal marijuana growers, processors and sellers to deduct normal businesses expenses from their taxes, just like operators in other industries can.

Under current federal law, a 1980s provision — known as 280E — effectively forces cannabis businesses to pay a much higher tax rate than other companies.

The statute was originally intended to to stop drug cartel leaders from writing off yachts and expensive cars, but today its language means that that growers, processors and sellers of marijuana — which is still a Schedule I substance under federal law — can’t take business expense deductions that are available to operators in other sectors.

As a result, cannabis businesses often pay an effective tax rate upwards of 65-75 percent, compared with a normal rate of around 15-30 percent.

Gardner’s press secretary said in an email that “he plans to file an amendment” to the broader tax legislation this week to include a 280E fix so that the provision no longer applies to marijuana businesses that operate in accordance with state or local laws.

The senator also cosponsored a standalone bill to reform the provision this month.

“Our current tax code puts thousands of legal marijuana businesses throughout Colorado at a disadvantage by treating them differently than other businesses across the state,” he said in a press release about the bill. “Coloradans made their voices heard in 2012 when they legalized marijuana and it’s time for the federal government to allow Colorado businesses to compete. This commonsense, bipartisan bill will allow small businesses in Colorado and other states that have legal marijuana businesses to grow their operations, create jobs, and boost the economy.”

Marijuana businesses and their supporters failed to attach 280E reform language to the House version of the tax legislation this month. In that chamber, the Rules Committee blocked floor consideration of an amendment on the issue two weeks ago.

“When Congress passed 280E, they never envisioned an industry like ours meant to take ill-gotten gains from drug dealers,” Neal Levine, chairman of the New Federalism Fund, said in an interview. “The provision is misapplied to our industry. It’s actually helping the drug cartels it was meant to hurt,” he said, referring to the fact that extra taxes force legal providers to keep prices artificially high such that they sometimes can’t compete with the illegal market.

Levine’s group and others have been working to convince members of Congress to reform the provision, emphasizing that it’s not a pro-marijuana idea.

“Our industry is actually the only folks who have been able to take market share from the drug cartels,” he said.

Gardner mentioned the plan to attach the amendment to the tax bill to a Bloomberg reporter earlier this week.

The tax bill is currently on the Senate floor, and leaders are aiming to pass it before they go home for the weekend.

Even if 280E language is adopted on the Senate floor, in order to be enacted into law it will have to a survive a bicameral conference committee that merges the chamber’s bill with the House version that does not contain the provision.

In other financial legislative news of interest to the cannabis industry, House leaders also prevented consideration of an amendment to allow marijuana businesses to access banks this month.

This piece was originally published by Forbes.

(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)

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