U.S. House Passes SAFE Banking Act as Part of New Coronavirus Relief Bill: UPDATE

On Friday, the U.S. House passed a $3-trillion relief bill aimed at the economic pressures of the coronavirus pandemic. Included in the bill was the legislative language of the SAFE Banking Act, which would allow cannabis businesses to work freely with banks.

The stimulus bill is known as The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act.

Despite cannabis businesses being deemed essential in nearly every state with legal cannabis programs, other federal relief efforts do not extend to the industry due to federal prohibition.

"I do think that there will be continued conversations around reform efforts to make it more mainstream for these businesses to operate because at a time like this, where you are talking about cannabis being an essential service yet doing so with one hand tied behind their back, I think people are saying, 'Look, if these are essential businesses and have been deemed so by some of the states if not all of them that have put these shelter-in-place orders in place, we need to make it easier for these businesses to do business so they can continue to provide these essential services,'" Jonathan Havens, co-chair of the Cannabis Law Practice and chair of the Food and Beverage Practice at Saul Ewing Arnstein & Lehr, told Cannabis Business Times.

For Havens, the House's passage of the banking provisions is a natural next step following the cannabis industry's essential status during the COVID-19 pandemic.

"Maybe this was House Democrats’ way of providing some delayed relief to the cannabis industry by fixing one of the primary challenges of the cannabis industry, which is lack of ready access to banking, commercial lending and ... capital markets," Havens said. "I guess it’s surprising, but at the end of the day, not all that unexpected given that the House has acted on the SAFE Act before and has passed it."

Now, the bill heads to the U.S. Senate, which has never passed cannabis banking legislation. Top Republican senators, as well as President Trump, have voiced opposition to the HEROES Act, citing political disagreements on the crisis. As Marijuana Moment points out, Senate Majority Leader Mitch McConnell (R-KY) took a moment on the floor to specifically call out the cannabis banking provisions in the bill.

"I would be surprised if it passed the Senate, just given Senate Majority Leader Mitch McConnell’s statements on the SAFE Act previously, and given his statements in the last 24 hours about his reaction to it being included in the House bill," Havens said. "It’s not enough that the House is going to do this. The Senate really needs to act on this in concert, and it doesn’t sound like they’re going to do that if you take your cues from McConnell."

"People forget that our federal drug policies have been the way they are for several decades," he added. "It’s kind of like steering a big, rusty, creaky ship in a different direction than it’s been going. It’s tough to turn that wheel over."

See our original story below.

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Originally published May 12

The U.S. House will include legislative language from the SAFE Banking Act in the next relief bill aimed at economic relief amid the coronavirus pandemic.

Thus far in the current economic crisis, cannabis businesses have been largely excluded from such relief. The ongoing Schedule-I status of the plant has barred any federal stimulus aid or small business loans from hitting the industry—even as cannabis business around the U.S. have been deemed “essential” in this difficult moment.

"It is good news for the industry, being part of the conversation and part of relief efforts," Matthew Ginder, partner in Greenspoon Marder's Cannabis Law Practice Group, told Cannabis Business Times. "I think that’s a win in and of itself to be at the table."

The SAFE Banking Act was passed by the House last fall, but the Senate has not yet taken any action on the measure. In short, the bill (formally titled the Secure and Fair Enforcement of Banking Act) would allow banks to work with cannabis businesses and prevent any federal banking regulator from intervening or punishing those banks.

“Cannabis businesses are dealing with the same hardships as other small business without the same critical financial tools and reliable banking services. Providing access to banking services removes some of the shackles that are holding back the full potential of the fastest growing sector of the U.S. economy,” said Saphira Galoob, executive director of the National Cannabis Roundtable, in a public statement. “NCR applauds the House for acknowledging the legitimacy of cannabis businesses, and especially the work of Congressman Perlmutter who has been a tireless champion for the industry and its thousands of small businesses and workers.”

While the progress is certainly encouraging, Joseph Bedwick, co-chair of Cozen O'Connor's Cannabis Industry Team, is not holding out much hope that the Senate will ultimately approve the SAFE Banking provisions in the bill.

"I think it’s promising that cannabis keeps coming back into the discussion, but in the end, this is no different than the SAFE Banking Act passing the House," Bedwick told Cannabis Business Times. "I can’t see much happening this year. I can’t see this, whether it’s [the] SAFE Banking [Act] or the inclusion of a SAFE Banking-like provision in this bill, really getting anywhere, but it will set the stage, I hope, for 2021 to really have some cannabis legalization efforts."

"[The cannabis industry can play a] part of healing the economy by infusing not just new revenue into communities but also by creating new jobs and hiring individuals from other industries that have been forced to lay off or furlough their workforces."

- Saphira Galoob, executive director of the National Cannabis Roundtable

Despite the silence from the U.S. Senate as a governing body on this question, the SAFE Banking Act has picked up fairly broad support. Treasury Secretary Steve Mnuchin trumpeted the fundamental need for some sort of solution last year. Governors around the country have signaled support for the federal measure, as well. The American Bankers Association (ABA) also endorses the SAFE Banking Act.

“We strongly support the SAFE Banking Act, and continue to urge lawmakers to resolve the conflict between state and federal law so banks can provide services to cannabis-related businesses in states where it is legal,” said Blair Bernstein, director, public relations for the ABA, in an email to CBT.

At the very least, Galoob told CBT in a follow-up phone call, the stimulus package will give lawmakers in D.C. a chance to debate cannabis banking on a more visible platform. Between now and an anticipated Thursday night vote on the rules of this legislation, cannabis might get more of a spotlight than federal lawmakers have been willing to grant it over the past few years.

“I wouldn’t anticipate that cannabis itself or cannabis banking would be a dealbreaker one way or the other, but the ultimate success will likely be informed by the negotiation between the House and the Senate and the administration," she said. "While negotiations are happening, we will continue to do our parts as advocates and industry stakeholders to show that by unshackling these regulations we can be a part of economic recovery. [The cannabis industry can play a] part of healing the economy by infusing not just new revenue into communities but also by creating new jobs and hiring individuals from other industries that have been forced to lay off or furlough their workforces."

The building support, in addition to many states deeming cannabis businesses essential in their response to the COVID-19 pandemic, could be the boost the industry needs to get cannabis policy reform across the finish line, Bedwick said.

"I think [because] ... states [put] cannabis dispensaries on par with pharmacies and grocery stores, you may see a big push to get cannabis into the forefront of discussion again and to really put forth a concerted effort for legalization," he said.

Justin Strekal, political director of NORML, joined the chorus of wary optimism in a public statement: “The inclusion of the SAFE Banking Act in the CARES 2 package is a positive development, but one that’s akin to applying a band-aid to a gaping wound. In the majority of states, these cannabis businesses have been deemed essential during this pandemic. But at the federal level, they are being cast aside by Congress. Those small cannabis businesses facing tough economic times are essentially being told by Congress to shutter their doors and fire their employees.”

The tough economic times are compounded by the obvious public health crisis, too. The cash handling that's so prevalent in the cannabis industry is something that poses certain health risks. Provisions in the SAFE Banking Act would immediately help the situation, allowing businesses to develop more streamlined cashless systems for working with their customer base.

Federal lawmakers are working on an economic stimulus and a public health remedy simultaneously. Right in the middle of that lies the cannabis industry.

“Because there’s a vehicle, there’s going to be legislation—even if the timing of that legislation is still a negotiation," Galoob said. "The fact that we’re more likely than not to see additional federal bills addressing the current crisis and because cannabis banking has a clear nexus to the crisis and we’ve been included in the House version of the bill, there is an opportunity to really allow lawmakers … who haven’t had a chance to acknowledge and ensure that this issue is being addressed to do so at this time as legislation is moving forward.”

Additional reporting by Brian MacIver and Melissa Schiller

Updated 5/13 9:00 a.m.: This article was updated to correct a title. Blair Bernstein is director, public relations for the ABA, not senior manager.