Pot emerges from the legal shadows
The Justice Department has spoken — at last — on the issue of reclassifying marijuana as a less dangerous drug, and that’s a good thing. but it’s simply the first step on a long and torturous regulatory road. and pot sales won’t fully come out of the legal shadows that remain without some help from congress.
The Drug enforcement administration made its long-awaited recommendation to downgrade marijuana from a schedule i drug — reserved for highly addictive substances without any medical use, like heroin — to schedule iii, in the company of substances like tylenol with codeine or ketamine. that move has been years in the making, first requiring extensive study by the Department of health and human services, which recommended rescheduling last august.
If approved by the biden administration in the coming months, as is expected, the recommendation will be enormously helpful to marijuana businesses, which are currently denied a whole raft of tax benefits, and to medical researchers hampered by endless federal red tape.
But it doesn’t change the industry’s outlier status when it comes to access to financial services, including banks and credit cards. that will require an act of congress. in the meantime, cannabis firms must remain all-cash businesses, making them particularly vulnerable to theft — as the armed robbery of a courier transporting nearly a half million dollars in cape cod pot shop proceeds to a swansea bank showed.
“While this is clearly a very positive step, it’s not a huge step,” said Jim smith, a partner at smith, costello and crawford, which maintains a large cannabis practice. “We are still years away from where we need to be.”
In a nation where 38 states and the District of columbia have legalized medical marijuana and about two dozen offer legal recreational marijuana, the regulatory wheels are still grinding slowly.
the Dea recommendation now goes to the White house Office of management and budget, a process that must include a 30-day comment period but could take up to 90 days. the Dea then publishes the new rule in the federal Register, setting off another comment period.
all of which could happen by election Day — which clearly president biden, who helped kick off the process, wouldn’t mind seeing as he attempts to capture some of those under-30 voters. but that assumes no legal challenges along the way.
“i imagine there are puritans among us who will want to drag this into court,” smith said.
actual rescheduling will indeed bring one immediate benefit to licensed pot shop owners — relief from section 280e of the federal tax code, which prohibits deducting ordinary business expenses associated with “trafficking” of schedule i and ii drugs. that will mean cannabis shops and cultivators will be able to deduct all the usual business expenses like rent, payroll, and marketing — a savings of millions of dollars that can be reinvested or result in lower prices for consumers.
“This is a struggling industry,” smith said, “and this will be a lifeline to some.”
And when, as he put it, “your primary competition is the illegal market,” that’s not a bad thing.
Rescheduling will also open the way to more medical research freed from the onerous federal regulations that accompany any work on schedule i drugs and from the stigma as well. smith anticipates it will also probably attract interest from pharmaceutical companies.
“Long term imagine what cannabis-derived medications could do just for seniors,” he added.
Rescheduling could open the way for federal research funding and for “cannabis derived drugs and other products to be approved by the food and Drug administration, and become reimbursable by medicare and medicaid, as well as state worker’s compensation programs and the us Department of Veterans affairs,” the Dinsmore & shohl law firm noted in its memo on the road ahead.
“But ultimately we will need congress to step in” and fix things like banking regulations, smith said.
Enter senator chuck schumer of New York, who has been promising since the start of this year to get the SAFER Banking Act through the senate.
The act would provide a “safe harbor” for banks, credit unions, other financial institutions, and payment processors that provide services to “state-sanctioned businesses.” it would also clear the way for national credit card companies to service pot shops, removing the dangers and the inconvenience of this currently cash-only business.
And it would clear the way for some 22,000 employees in the cannabis industry in massachusetts and nearly half a million workers nationally to count their marijuana-derived income toward a business loan, a home mortgage, or even a bankruptcy settlement — something not allowed now.
Schumer, in a statement, greeted the Dea move as “great news” and “a historic step forward,” adding “i remain strongly committed to continuing to work on legislation like the SAFER Banking Act.”
At one point schumer was considering attaching it to the must-pass faa reauthorization act now before the senate, but that has proven difficult enough to shepherd through without a cannabis rider.
The Dea decision did prompt the american bankers association to issue a statement calling on congress to pass the act and finally “address the ongoing legal limbo around cannabis banking, while enhancing public safety, tax collection and transparency.” it noted that without it, “cannabis would still be largely illegal under federal law, and that is a line many banks in this country will not cross.”
The National conference of state Legislatures also endorsed the act in a letter to congressional leaders last month, saying “support for this act would help to resolve the long-standing tension between federal and state law with respect to banking and other financial services by allowing financial institutions to provide services to these legal businesses without penalty.”
The SAFER Banking Act, which has bipartisan support, is a logical next step, following on the heels of the Dea recommendation. Now if only congress could get its act together to do the right thing.