January 09, 2014

As bankers try to get a handle on the ever-shifting regulatory landscape, a new source of complexity for banking compliance is growing in Colorado - legalized marijuana.

Colorado State law now allows marijuana stores to legally sell pot to the public for recreational use, but those involved in the legal sale and production of weed have been stonewalled by financial institutions when applying a bank account. Since marijuana is still illegal under federal law, banks are scared that of running afoul of anti-money laundering regulations if they provide banking services to marijuana shops or producers, according to an article published yesterday on Salon.

Financial institutions don’t want to run afoul of the Anti-Money Laundering Act, which can charge fines of up to $500,000 per transaction for working with companies who sell illegal products. Though Colorado and Washington have been cleared for adult recreational use sales, and 21 states (plus the District of Columbia) have legalized pot for medicinal use, marijuana remains illegal under the federal Controlled Substances Act. Even a state-owned bank, which one Washington lawmaker has proposed, would have to abide by federal banking laws. The discrepancy between state and federal law puts financial institutions at risk of money laundering prosecution, and they want precise assurances before assuming that risk.

The article tells the story of the first legal pot producer in Washington State, which is also legalizing marijuana, who lost his account with Boeing Employees Credit Union when the institution found out about his work.

“We operated, by their own description, ‘an exemplary account,’” Cooley said. “It’s frustrating, because they were saying to us, ‘we found out about you because you’re trying to be legitimate. So now we’re going to close your bank account.’”

The result is that many of legal marijuana businesses have to do all of their transactions in cash. One Washington congressman related a story about the owner of a medical marijuana stores showing up to pay his state taxes in $40,000 in cash.

The Salon article rightly points out what an ironic twist this development is after HSBC was found last year to have knowingly laundered money for Mexican drug cartels and was fined $1.9 billion. But no bank is willing to do business with legal businesses involved in the same trade. Regulators have issued no guidance for banks though now that pot’s being legalized, and banks are playing it safe.

The Bank Secrecy Act Advisory Group was supposed to address this issue in a closed meeting last month, but no guidance came out of the meeting. And whatever guidance regulators issue might be meaningless anyway:

Any guidance would still be discretionary, and a zealous prosecutor or a change in administration could reverse that at any time. “It would be completely ridiculous for JPMorgan Chase to accept business from a marijuana shop,” said UCLA professor Mark Kleiman. “Why would they expose themselves to prosecution from President Huckabee’s attorney general?”

Two Congressional representatives from Colorado and Washington have introduced a bipartisan bill to clear the way for banks to work with legal marijuana businesses. Regulators and government officials are going to be hard-pressed over the the next few years to come up with a solution for this problem. New York is now the latest state to contemplate legalizing marijuana, and it seems reasonable to expect more states to follow. And banks aren’t going to risk further court actions with the industry’s reputation slammed by recent legal settlements that have made big headlines.

[For More Regulatory Coverage, See “JPMorgan $13B Mortgage Settlement May Be Only the Beginning”]

Presumably as the legal marijuana business grows across the country, lawmakers aren’t going to want all of those transactions occurring in cash given the opportunity that creates for tax evasion. So it is certainly in the interest of government officials to make it legal for banks to service these businesses.

In the meantime, for any banker suffering from a headache over all the regulatory change in the market, well, in Colorado they can give you a good prescription for that.

Jonathan Camhi is a graduate of the City University of New York's Graduate School of Journalism, where he focused on international reporting and interned at the Hindustan Times in Delhi, ...