The state legalization of marijuana in many states,
including California, has spurred the development of a relatively new multi-billion
dollar business sector. One of the
issues arguably holding back the speed of development of the market is the illegality
of marijuana sale, distribution and possession at the federal level. And, one of the problems arising from that
illegality is the lack of the availability of banking services for many marijuana
businesses. Because many banks will not
deal with marijuana businesses, it remains a mostly cash business. Former California Treasurer John Chiang
created a working group to analyze and propose potential solutions to the banking
issue and also commissioned an external expert report. The expert report was recently released and
basically recommends that California not adopt a state-backed bank for
marijuana businesses. The risk of either
federal prosecution or the federal government making marijuana sale, distribution and possession (including
aiding and abetting) legal and regulatory issues, in part, makes it unlikely to be successful
and financially feasible. The expert
report states:
For each of the three options the state can expect to spend
$35 million on start-up costs incurred over a six year start-up period. There is a high probability that federal
regulators will not issue a master account to the bank, which is necessary for
the bank to open and conduct basic banking functions such as wiring funds. In that
eventuality any start-up funds expended to that point and during the subsequent
wind-down would be wasted. If approved to open, the bank will then require just
under $1 billion in capital, will lose money for 12 years before the bank is
able to pay dividends sufficient to fully provide a return on the invested
capital and begin repaying that capital, and the state of California will not
begin receiving net dividends until 25 to 30 years after the bank opens, or
sometime between 2050 and 2055. If
federal regulations change during this time and cannabis banking becomes legal,
the bank would most likely be closed at that point due to a decreased business
demand for the bank and thereby incur a significant loss. If federal regulators
begin to aggressively enforce federal laws the bank would be closed and
deposits subject to confiscation. Under this scenario the losses would be
substantial and liabilities impossible to determine. Even if federal regulators
maintain the current ambiguous situation, commercial banks will offer competing
services to the industry by the time a public bank could open. Our conclusion
is that no option for a public bank focused on the cannabis industry is
feasible.
Other solutions examined include a public credit union, the
state purchase of an existing private bank, and various FinTech (financial
technology) solutions that attempt to solve the problem using payment
technology such as cryptocurrency. Each of these options is ultimately
dependent on access to national banking and payment processing networks, so
each encounters the same difficulties overcoming the federal laws that are
holding back access to banking now. We conclude that none of these alternate
solutions is feasible.
The expert report does propose that a state agency take up
continued work on a strategy to address the issues related to marijuana
banking. BNA has a nice overview of
problems with IP and marijuana business in the United States, here.
Happy New Year!
Happy New Year!
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