DENVER — Bankers should beware of the Obama administration's newly issued green light for banks doing business with the legal marijuana industry, according to the head of the Colorado Bankers Association.
Memos released Friday by the Justice Department and Treasury Department's Financial Crimes Enforcement Network were intended to give banks leeway to open accounts for marijuana businesses in states like Colorado and Washington that have legalized retail pot. Instead, the guidance "only reinforces and reiterates that banks can be prosecuted for providing accounts to marijuana related businesses," said the CBA in a Friday statement.
"In fact, it is even stronger than original guidance issued by the Department of Justice and the Treasury," said CBA president and CEO Don Childears. "After a series of red lights, we expected this guidance to be a yellow one. This isn't close to that. At best, this amounts to 'serve these customers at your own risk' and it emphasizes all of the risks. This light is red."
Colorado's first-ever legal marijuana market, which kicked off Jan. 1, has been hampered by a lack of access to bank accounts and small-business loans. Many of the state's retail pot shops are cash-only enterprises, making them vulnerable to crime.
Washington is expected to start sales of retail pot in June. Voters in Colorado and Washington approved in 2012 ballot measures legalizing limited amounts of recreational marijuana for adults 21 and over.
"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," said FinCEN Director Jennifer Shasky Calvery in a statement.
"Our guidance provides financial institutions with clarity on what they must do if they are going to provide financial services to marijuana businesses and what reporting will assist law enforcement," she said.
But the FinCen memo makes it clear that banks must avoid doing business with illegal marijuana operators or those that violate the eight priorities laid out in the Justice Department's so-called Cole Memo, issued in August by Deputy Attorney General James Cole.
Those priorities include making sure pot is not distributed to minors, used to enrich drug cartels, or diverted to states where marijuana remains illegal under state law.
Banks must also continue to file "suspicious-activity reports" on all marijuana accounts, even those that "it reasonably believes, based on its customer due diligence, does not implicate one of the Cole Memo priorities or violate state law," said the FinCen guidance.
Nothing in the guidance should convince bankers to relax their standards on pot-related accounts, said Childears.
"Bankers had expected the guidance to relieve them of the threat of prosecution should the open accounts for marijuana businesses, but the guidance does not do that," said the CBA statement. "Instead, it reiterates reasons for prosecution and is simply a modified reporting system for banks to use. It imposes a heavy burden on them to know and control their customers' activities, and those of their customers. No bank can comply."
Michael Elliott, executive director of the Marijuana Industry Group, said he was "pleased" that the Obama administration takes seriously "the banking crisis and the public safety issues it has created."
At the same time, "While we believe today's guidance should provide banks some of the assurances they need to begin doing business with the marijuana industry, it doesn't solve all the problems," said Elliott in a statement.
Childears and Elliott agreed that a congressional fix is needed, either to revise the banking laws, such as by passing the Marijuana Business Access to Banking Act, or to remove marijuana as a Schedule 1 drug under the Controlled Substances Act.
"It is imperative that Congress not view today's guidance as the ultimate solution to this public safety crisis," said Elliott. "Congress must act quickly to solve the problem before we witness a tragedy."
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