W.Va. AG Issues Legal Opinion Regarding Medical Cannabis

CHARLESTON — West Virginia Attorney General Patrick Morrisey issued a legal opinion concluding that as the state considers how to implement its medical cannabis law, it must carefully consider how to balance the unambiguous federal criminal statutes implicating cannabis businesses with an equally clear, yet potentially temporary, non-enforcement policy that has accommodated more than 30 states.

The opinion, issued Friday, notes the approaches of these states and key issues to analyze. Over the long term, however, the concerns of those who sought the opinion stem from federal law, and a permanent, complete solution will require additional federal action.

“It does not appear that any state has found a complete solution,” Attorney General Morrisey wrote. “The most effective option for States seeking to facilitate access to banking services for cannabis-related entities may be to design implementing regulations in a way that makes it easier for banks to comply with current federal reporting obligations.”

The opinion responded to a request sought by West Virginia Treasurer John Perdue and House Speaker Roger Hanshaw. Both leaders asked if the state could safeguard financial institutions that serve companies involved with the sale of medical marijuana.

The Attorney General understands the hesitancy some banks have shown to enter the new market, since the fact remains that marijuana remains illegal under federal law.

That means any entity that provides banking services to a cannabis business carries an inherent risk of federal civil or criminal action, even in states where medical marijuana is legal, such as soon will be the case in West Virginia.

Congress has blocked the U.S. Department of Justice from using its funds to interfere with a state’s authorized marijuana-related activities, however Friday’s opinion warns there is no guarantee Congress will maintain the restriction. It further concludes an end to the funding restriction could expose entities to retroactive prosecution within the statute of limitations.

Similarly, the opinion recognizes reporting guidance issued by the U.S. Department of Treasury to effectively provide a “safe harbor” for banks serving marijuana-related businesses, but, like the Congressional funding restriction, that guidance could be rescinded at any time.

Read the opinion at http://bit.ly/2Fm0rBN.

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