Feds May Remove Marijuana Banking Protections, Treasury Department Says

Photo Credit: Tom Sydow

The Trump administration is considering removing Obama-era guidance that has allowed banks to open accounts for marijuana businesses without running afoul of federal regulators.

Last month, U.S. Attorney General Jeff Sessions rescinded a broader policy from the former administration that has generally cleared the way for states to implement their own cannabis laws without Justice Department interference.

Now, the federal government may move to make it harder for cannabis industry operators who comply with state laws to store their profits with financial institutions.

“We are reviewing the [banking] guidance in light of the Attorney General’s announcement and are consulting with law enforcement,” Drew Maloney, the U.S. Treasury Department’s assistant secretary for legislative affairs, wrote in a letter to members of Congress on Wednesday.

The letter is a response to a bipartisan group of 31 House members that had written the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) last month asking the agency to continue the cannabis banking guidance. Fifteen senators separately sent a similar letter.

The FinCEN document, issued in 2014, laid out a process for how banks can open accounts for marijuana businesses and avoid triggering federal enforcement actions.

“FinCEN’s stated priorities have allowed such businesses to conduct commerce more safely through financial institutions which reduces the use of all cash, improves public safety, and reduces fraud,” the House lawmakers wrote in their letter. “Leaving your guidance unchanged will continue to encourage small companies to make investments by freeing up access to capital. It will also further provide for well regulation and oversight through suspicious activity reports. Rescinding this guidance would inject uncertainty in the financial markets.”

Last month, Sigal Mandelker, the Treasury Department’s deputy secretary, testified at a Senate hearing that the banking memo is still in effect while the Trump administration weighs whether to revoke it.

Similarly, Maloney wrote on Wednesday that guidance “remains in place” for now, pledging to alert lawmakers to any changes.

The FinCEN 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.

Nonetheless, documents released by FinCEN late last year showed that the number of banks willing to work with the marijuana industry has steadily grown over time, though those figures were collected prior to Sessions’ move to revoke the broader Justice Department guidance.