Essay
This essay due on 2/14 and should focus on some of the topics and subjects we reviewed in the article and videos.
- Small business rights
- The stigma of marijuana as commerce
- What fuels the federal government’s ire regarding marijuana as a legitimate business?
- The economic impact of not having marijuana businesses in a community
- The reality of the “federalization loophole” and what that could mean for other areas within the decriminalizing marijuana discussion.
https://www.law.com/thelegalintelligencer/2020/05/23/cannabis-and-covid-19-pandemics-impact-on-
legalization-and-legislation/
Commentary
Cannabis and COVID-
19: Pandemic’s Impact
on Legalization and
Legislation
Unintended effects of the global pandemic may ultimately usher
in a new wave of legalization and protection for marijuana
businesses and the insurers and banks who work with them.
By Robin Dusek | May 23, 2020 at 01:51 PM
https://www.law.com/thelegalintelligencer/2020/05/23/cannabis-and-covid-19-pandemics-impact-on-legalization-and-legislation/
https://www.law.com/thelegalintelligencer/2020/05/23/cannabis-and-covid-19-pandemics-impact-on-legalization-and-legislation/
https://www.law.com/thelegalintelligencer/commentary/
https://www.law.com/thelegalintelligencer/commentary/
By early 2020, marijuana had made tremendous strides toward legalization—
for either medicinal or recreational purposes—in most states and even implicit
federal recognition in the form of safe-harbor legislation for insurers and banks
conducting business with the cannabis sector. But then COVID-19 struck, and
progress predictably slowed. Nonetheless, unintended effects of the global
pandemic may ultimately usher in a new wave of legalization and protection
for marijuana businesses and the insurers and banks who work with them.
Jan. 1 marked the first day of adult-use marijuana sales in Illinois, the latest
state to legalize marijuana for adults and the first to provide a comprehensive
legal blueprint in the form of legislation that addresses everything from
taxation to social justice. In all, at the beginning of 2020, medical marijuana
was legal in 33 states, and another 11 had legalized recreational adult use,
with several other states—most notably, New York and New Jersey—making
a big push to do the same, despite marijuana’s continued illegal status at the
federal level.
Despite these milestones, however, even where legal, cannabis businesses
faced substantial obstacles. Key components of risk management that any
business relies upon, at least in part, have been limited for the cannabis
industry. Adequate insurance coverage and beneficial banking relationships
are essential risk-management strategies for any business. However, the
cannabis industry has been largely excluded from these markets for three
main reasons. First and foremost, insurers and banks balk at navigating a
complex system of state and federal laws that are frequently at odds with
each other. Simply put, they don’t feel comfortable insuring or providing
liquidity for an activity that the federal government still considers illegal. In
addition to legal concerns, certain insurers and banks are concerned about
the reputational risk associated with the cannabis industry. Finally, even
insurers and banks who consider the cannabis industry a potentially promising
market have nonetheless thus far declined to wade into the marijuana market
because the industry is so new, with risks that are not well understood or even
known.
Appropriate insurance coverage and reliable banking access are a challenge
for cannabis industry participants in no small part because insurers and banks
are overseen by the federal government. But even federal legalization isn’t
necessarily a panacea. Certainly, Canadian cannabis businesses have
learned that national legalization has not meant ready access to banking.
There is some thought that this is due in part to the fact that cannabis remains
federally illegal in the US, and Canadian banks do not want to face cross-
border challenges, but there may be additional issues at play relating to risk
tolerance, both in terms reputational risk and the unknowns inherent in any
new industry sector.
In the United States, Congress has taken steps to address at least some of
these concerns. The most predictable path toward access to insurance and
banking for cannabis businesses seemed to be through federal legislation
providing safe harbor for those who worked with the industry. To that end, the
Safe and Fair Enforcement Banking Act, or the SAFE Banking Act, which
seeks to provide safe harbor for banks and insurers that work with the
marijuana industry, was passed by the U.S. House of Representatives with
bipartisan support. (The Clarifying Law Around Insurance of Marijuana Act, or
the CLAIM Act, an effort to provide an even broader safe harbor for insurers,
stalled once it became clear that the SAFE Banking Act would address most
safe-harbor issues for insurers, as well as bankers and that it had
momentum.) Although the SAFE Banking Act is not yet out of committee in
the Senate, the list of bipartisan co-sponsors signals a possible path toward
passage. The expectation has been that once the legislation passes, those
banking institutions and insurers that want to work with the cannabis industry
would start to do so.
But then the COVID-19 pandemic hit the United States, and at least 43 states
issued stay-at-home orders, with states and municipalities paring limitations
on how and which businesses could remain open. Only businesses
considered “essential”—e.g., businesses related to the production or supply of
food, health care, basic financial support, and utilities—remained operational.
And in at least 28 states where marijuana had been legalized, marijuana
businesses were exempted as “essential” and allowed to remain open. Some
jurisdictions have allowed delivery and/or curbside pick-up of cannabis orders,
and several states have specifically approved telemedicine appointments to
be approved for use of medical marijuana. Massachusetts is considering
COVID-19 relief specifically for cannabis businesses and we may see other
states following suit. By visible metrics, therefore, cannabis is being treated as
a medication that is important to the health and well-being of the public, even
during a pandemic. What does this mean for marijuana businesses—and the
insurers and banks who want to do business with them—going forward?
In early March, just days before rolling shutdowns hit, state banking
associations urged Congress to advance the SAFE Banking Act, but
COVID-19 has certainly slowed any forward progress due to the closure of
Congress, and the bill remains in committee in the Senate. Rep. Ed
Perlmutter (D-Co), the bill’s primary sponsor, has been urging his colleagues
to include aspects of the SAFE Act into a COVID-19 stimulus bill and also
working to provide relief for cannabis businesses in the form of Small
Business Administration (SBA) loans. Perlmutter has reportedly said that
https://www.aba.com/-/media/documents/letters-to-congress-and-regulators/stex-joint-letter-re-support-for-safe-banking-act-03062020 ?rev=d66381eb9bfa4087bebbd107dde1534d#_ga=2.269236402.2115810287.1589161389-2098523859.1588688992
https://www.aba.com/-/media/documents/letters-to-congress-and-regulators/stex-joint-letter-re-support-for-safe-banking-act-03062020 ?rev=d66381eb9bfa4087bebbd107dde1534d#_ga=2.269236402.2115810287.1589161389-2098523859.1588688992
Speaker Nancy Pelosi supports these efforts, so the push to include cannabis
businesses in COVID-19 relief legislation may not be as far-fetched as it
sounds. On May 8, several cannabis industry groups pressed Pelosi and
House Minority Leader Kevin McCarthy to either advance the SAFE Banking
Act or include provisions of that act in the next relief bill.
On the legalization front, while some state-level efforts seem to have slowed,
the argument for federal legalization is now perhaps stronger than ever. Pro-
legalization members of congress can point to the fact that cannabis
businesses have often been deemed essential in states across the nation. In
a time of economic uncertainty, a new industry with a built-in customer base,
the potential to create around a million new jobs, and federal tax revenue of
more than $108 billion over an eight year period might be too enticing for
politicians to ignore.
The pace and packaging of more widespread legalization efforts and the
likelihood of the inclusion of cannabis in stimulus or recovery legislation
remains to be seen. The question facing elected officials and others is how an
industry can be essential and yet cut off from banking and insurance?
Answering this question may lead to state-based or other government-backed
solutions. For example, insurance regulators can take steps to educate
insurers about the needs of the cannabis industry in their respective states.
Indeed, the National Association of Insurance Commissioners has outlined
how regulators can help bring insurance for the cannabis sector to their
states. Those regulators may now feel increasing pressure to prioritize
insurance for marijuana businesses in their states in light of the essential
nature of these businesses. Likewise, on the banking front, some states have
contemplated state-run banks for cannabis businesses.
By declaring cannabis businesses essential, states have placed their stamp of
approval on an industry that the more conservative insurance and banking
industries have shied away from. Looking forward, it seems likely that this
stamp of approval could help encourage insurers and banks to find a way to
work with the industry.
Finally, separate from the issue of whether cannabis businesses are truly
essential and thus worthy of protection, legislative or otherwise, COVID-19
has caused “predictable” policyholders and clients to experience
unpredictable results. What was thought to be known is now unknown. Given
this reality, the lack of data about and experience with cannabis businesses is
no longer the outlier. Indeed, we may emerge from the pandemic with
cannabis businesses experiencing a more predictable income stream and risk
profile than many other types of businesses. In comparison to more traditional
businesses that may be in a period of reinvention for some time, cannabis
businesses could look more stable by comparison.
Still, it won’t necessarily be smooth-sailing for the cannabis sector, even if
insurers and banks become comfortable enough to conduct business with
them. COVID-19 can cut both ways. For example, there is no doubt that even
if more insurers enter the cannabis space, those who do so will write policies
incorporating the lessons learned from COVID-19. In particular, business
interruption policies will be limited, if available at all. And as long as marijuana
is illegal at the federal level, many banks and insurers will still decline to
participate, particularly if there is no safe harbor to mitigate the risk. However,
COVID-19 has upended what is and is not predictable and what industries are
and are not essential. This upheaval could ultimately help the cannabis
industry become a partner that even conservative insurers and banks would
be willing — if not, in fact, eager—to have on their side.
Robin Dusek, a partner with Saul Ewing Arnstein & Lehr, represents insurers,
cedents, reinsurers, and pools across the country in insurance and
reinsurance disputes, including in both arbitrations and litigation.