The company is “aware of a scheme” in which retailers are utilizing cashless ATMs to avoid limitations on the types of sales for which payment cards are allowed to be used.
By Nina Zdinjak
The burgeoning recreational marijuana industry — illegal at the federal level yet legal for adults in some 18 U.S. states and DC — has faced multiple challenges throughout the years, mostly because of the Schedule 1 status of the cannabis plant.
The biggest problem? Banking, of course.
As in life, retailers have had to find a way to work around the system. Some cannabis merchants have begun using cashless ATMs to bypass limitations on the types of sales payment cards they can legally accept.
One of the largest payment processors in the world, Visa Inc., recently issued a compliance memo to customers warning them that incorrectly coding point-of-sale transactions via cashless ATMs could be penalized or punished by unspecified enforcement procedure, reported Marijuana Moment.
Visa’s warning comes on the heels of the marijuana banking reform bill that was recently chopped from Congress’ defense bill. The latest version of the Congressional defense bill left out several key provisions that were in the House-approved National Defense Authorization Act (NDAA), including the much-anticipated marijuana banking reform known as the Secure and Fair Enforcement (SAFE) Banking Act, which would protect banking and financial institutions that work with state-legal cannabis companies.
Aware Of A Scheme
Visa’s memo from Dec. 2 obtained by Marijuana Moment revealed that the company is “aware of a scheme” in which retailers are utilizing cashless ATMs to avoid limitations on the types of sales for which payment cards are allowed to be used.
“Cashless ATMs are POS [point of sale] devices driven by payment applications that mimic standalone ATMs. However, no cash disbursements are made to cardholders,” the memo clarified. “Instead, the devices are used for purchase transactions, which are miscoded as ATM cash disbursements. Purchase amounts are often rounded up to create the appearance of a cash disbursement.”
Although the Visa directive does not specifically mention cannabis, it highlights that cashless ATMs (also called reverse ATMs) “are primarily marketed to merchant types that are unable to obtain payment services—whether due to the Visa Rules, the rules of other networks, or legal or regulatory prohibitions,” a category that covers marijuana businesses.
Nathaniel Gurien, CEO of Fincann, which provides financial services to cannabis businesses, estimates that thousands of marijuana retailers in the U.S. rely on this scheme.
A Desperate Move With Catastrophic Potential
“What keeps me up at night is that when, not if one or more eager assistant U.S. attorneys with their eye on advancement sinks their teeth into this, it has the catastrophic potential to derail our industry’s momentum and inflict great damage,” Gurien told the outlet.
While it remains clear that marijuana retailers are in an untenable situation – having no access to banking services – they should be aware that relying on the use of cashless ATMs can endanger their operations.
Corporate and banking compliance lawyer Kasim Carbide noted that violating Visa’s regulations “may result in a disciplinary action against the Merchant, as well as a potential fine of $200,000 or $2,500 per day (which can be retroactively applied [sic] to and from the first day of noncompliance), and termination of the Merchant’s account.”
What’s more, according to the Chicago Bar Association, miscoding cannabis sales is not only a violation of payment processors’ (in this case Visa’s) policies but a“violation of federal law as well.”
To exacerbate an already complicated situation, Jessica Billingsley, CEO of cannabis technology company Akerna, pointed out that there are probably many businesses that are unaware that cashless ATM practice is illegal.
“With the number of unique complexities and challenges the cannabis industry faces, many operators don’t understand that they have been sold misrepresented products that may not be legal,” Billingsley said in a statement. “The work of a few bad actors cannot undermine the important legal work the majority of ancillary providers have been doing.”
Many cannabis advocates reacted to Visa’s statement, arguing that such a large company should support marijuana retailers instead of placing obstacles in their paths.
“It is unfortunate that Visa is unwilling to work with the cannabis industry, which is legal in dozens of states and represents billions of dollars in economic activity, at a time when this country needs all the financial options it can use,” said Morgan Fox, media relations director for the National Cannabis Industry Association. “But it is even worse that they are trying to discourage alternative solutions that are primarily utilized by small businesses to protect themselves and their customers from theft and violent crime.”