For purposes of providing banking services to a marijuana-related business and complying with federal law, does it make a difference if a financial institution has a state or federal charter?

No, it does not matter whether the financial institution has a federal or state charter – federal law applies to every institution.

Even though Illinois law creates a limited exception to Illinois' criminal laws for growing, dispensing and using medical cannabis for certain patients, the Controlled Substances Act makes it illegal under federal law to manufacture, distribute, or dispense marijuana and its derivatives. Moreover, anyone who “aids, abets, counsels, commands, induces or procures its commission” is punishable as a principal for the crime. The fact that federal entities such as FinCEN and the Department of Justice have published guidance on maintaining relationships with marijuana-related businesses does not change federal law, which continues to treat marijuana as an illegal substance.

For resources related to our guidance, please see:

Compassionate Use of Medical Cannabis Pilot Program Act, 410 ILCS 130/1 (Illinois law that permits the medical use of marijuana for certain patients.)

Controlled Substances Act, 21 USC 841(a)(1) (“Unlawful acts. Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; . . . .”); 21 USC 802(6) (A controlled substance is “a drug or other substance, or immediate precursor, included in schedule I, II, . . .”); 21 USC 812(c)(c)(10) (Schedule I drugs include marijuana.); 18 USC 2(a) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”)

Department of Justice, Memorandum Regarding Marijuana Enforcement (August 29, 2013) (“As the Department noted in its previous guidance, Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. The Department of Justice is committed to enforcement of the CSA consistent with those determinations.”)

FinCEN Guidance, FIN-2014-G001 (February 14, 2014) (“This FinCEN guidance clarifies how financial institutions can provide services to marijuana-related businesses consistent with their BSA obligations, and aligns the information provided by financial institutions in BSA reports with federal and state law enforcement priorities.”)