On November 3, 2020, voters in Oregon approved Measure 109, paving the way for a regime of psilocybin for therapeutic uses in a few years.
Oregon and Psilocybin: Does the Approved Ballot Measure Language Stand a Chance
Oregon Psychedelics: Petition to Legalize Psilocybin for Therapy Moves Forward
Oregon Psychedelics: Psilocybin on the Ballot this November!
Oregon 2020 Election: Vote Yes! on Measure 109
Oregon Psilocybin: Does Measure 109 Go Far Enough? Does it Go Too Far?
Large cities across the country have also adopted decriminalization measures for psilocybin and other entheogenic (psychedelic) plants, including Ann Arbor, Denver, Oakland, Santa Cruz, and most recently, Washington, D.C. (but we note that decriminalization is not legalization). It’s only matter of time before states follow Oregon’s approach and start regulating psilocybin.
Assuming the federal government does not change federal law first (and this is certainly a possibility given the Food and Drug Administration’s approval of drug trials for psilocybin), it’s very likely that many of the legal issues that will face the regulated psilocybin will be similar, if not identical, to issues facing the state-regulated cannabis industry.
In a previous post, we discussed similarities and differences between the movements to legalize psilocybin and cannabis. In this post, we’ll look at the top eight issues that will likely carry over from cannabis to psychedelic drugs more generally.
1. Federal Legality
Even if states follow Oregon’s move and legalize psilocybin therapy, that won’t change federal law. Currently, psilocybin is a Schedule I narcotic under the federal Controlled Substances Act (CSA). This means that it and other entheogenic plants or psychedelic substances are treated the same way as heroin. It remains to be seen whether the federal government would take the same path of non-enforcement of the CSA against psilocybin operators in states that regulate psilocybin uses or sales. In other words, it’s unclear whether there will ever be anything like a Cole Memo for psilocybin. But inevitably, there will be tension between state and federal law.
2. Contract Issues
Whether or not the federal government takes a position of non-enforcement, psilocybin contracts will face serious issues given the state of federal law. Federal (and possibly even state) courts may refuse to enforce contracts that involve a federally illegal substance, even if authorized by state law. This issue still comes up for cannabis operators and can be a huge concern. For some of our articles on federal legality, see:
Cannabis Litigation: Another Blow to the Illegality Defense (Kennedy v. Helix TCS, Inc.)
Federal Courts are Going Backward on Cannabis
3. Tax Problems
The bane of many cannabis operators’ existence is Internal Revenue Code § 280E, and things will be no different for psychedelics companies so long as psychedelics remain on Schedule I of the CSA. This section states:
No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.
In other words, companies that traffic in certain controlled substances have immense limitations on what they can deduct when paying federal taxes. State law doesn’t change this. For more of our analysis on § 280E, see:
Marijuana Businesses and IRC 280E – More Clarity?
Marijuana Taxes: The IRS On Section 280E
Why we love the Harborside § IRC 280E Appeal
4. Access to Banking
On par with 280E in terms of annoyance for cannabis companies is lack of access to banking. Despite the fact that in 2014, the Financial Crimes Enforcement Network (FinCEN) issued a memo providing guidance for banks that wanted to bank cannabis monies, many banks didn’t jump on board. Even today, it can be difficult for cannabis companies in regulated states to gain access to banking. It can even be a challenge for hemp companies to access banks, even though hemp is now legal and even though FinCen and the National Credit Union Association have provided hemp banking guidance. These problems will no doubt persist for psychedelics businesses.
5. No Federal Trademarks
Trademarks will not be issued for goods or services that are not legal (you can read our analysis of trademark legality issues here). If states regulate psilocybin, they may allow licensees to obtain state-level trademarks, but those same companies will not be able to obtain trademark registrations from the United States Patent and Trademark Office unless and until federal law changes. This means that, like cannabis companies, psilocybin companies will only be able to have very limited trademark protection.
6. No Bankruptcy Protection
Bankruptcy protection is not available for cannabis companies due to federal illegality (see our analysis here). Those problems will persist for psychedelics companies as well.
7. RICO Suits
Historically, our cannabis lawyers have seen a ton of civil RICO litigation in federal courts across the United States. RICO (the Racketeer Influenced and Corrupt Organizations Act) is a federal statute that provides for a civil cause of action for acts performed as part of an ongoing criminal organization (in addition to criminal penalties). These suits were often filed by neighbors of cannabis cultivators trying to allege a conspiracy in an effort to shut down the cultivator and their suppliers. They have become less and less common over the years but we fully anticipate seeing a plethora of RICO suits for psychedelics companies in regulated states.
For more on cannabis RICO litigation, check out the following:
Much Ado about RICO
Much Ado About RICO and Cannabis, Part 2
Much Ado About RICO and Cannabis, Part 3
Much Ado About RICO and Cannabis, Part 4
Much Ado About Rico and Cannabis, Part 5: Multi-State Update
The Neighborhood “Gangbusters”: Avoiding RICO Cannabis Lawsuits
Cannabis RICO Lawsuits are Failing: Oregon and Colorado Updates
Federal Court Dismisses RICO Claims: Remedies Would Violate Federal Law
8. Leasing Issues
Federal legality also affects leasing. As we explained previously for cannabis leases:
once the landlord’s bank uncovers that it is leasing its property to a cannabis tenant (because its paid in cash one too many times or because the bank checks up on the collateral), mortgage violations abound. Why? Because this (usually) boilerplate document dictates that no waste or illegal activity take place on the collateral real property, and a cannabis tenant directly violates federal law and therefore the mortgage agreement between the landlord and its bank. This situation should be quarterbacked from the outset of the cannabis tenant and landlord relationship since it’s highly unlikely that the landlord will be able to successfully push back on the bank and will face losing the property to the bank as a result.
In other words, leasing to psilocybin tenants will be a risk for landlords, even in the event of state regulations. This usually translates to much higher rent and much more aggressive lease terms (e.g., tons of guarantees from affiliates and owners of the tenant, hyper-aggressive termination rights, and maybe even security interests).These businesses will also have problems with bank financing for real property.
Companies who traffic in Schedule I controlled substances will have issues getting insurance. Everything from using title insurance to facilitate real estate transactions to obtaining ordinary insurance policies will be more of a challenge for the psychedelic industry. Today, insurance is fairly available for cannabis businesses, but this was not always the case. Expect to see many issues in the early stages of legalization and regulation.
Any non-U.S. citizen who participates in the future psychedelics industry, even if it is state legal, will risk being denied entry into the United States, banned from the United States, or denied citizenship. While the Biden Administration will take less of an aggressive role on immigration policy than President Trump, risks based on violating federal law probably won’t go away. Business owners will need to seriously consider the impact of immigration laws on their proposed business model. For some posts on cannabis immigration issues, see:
Cannabis and Immigration: Marijuana Activity a Conditional Bar to Obtaining U.S. Citizenship
Bumps Ahead: The U.S. Border After Canada Cannabis Legalization
Once states get around to regulating psilocybin and other entheogens, it’s clear that businesses will face many hurdles. Fortunately enough, the regulatory lessons learned in the cannabis industry seem like they will all apply, at least to the extent that the federal government takes the same position it has taken for the cannabis industry, which remains to be seen. Stay tuned to the Canna Law Blog for more updates.
The post Top 10 Lessons from Cannabis for the Future Regulated Psychedelic Industry appeared first on Harris Bricken.
Original Source: harrisbricken.com
One of the more compelling innovations in fixed income emerging markets over the last decade is the currency-linked bond issue. This is a debt security which is denominated in one currency but settled in another, usually US dollars. In the emerging or frontier market context, this allows investors to gain exposure to and income from a high yielding currency whilst avoiding the complication of buying that currency itself.
Currency-linked bonds are impactful in development terms because they help to plot a yield curve where government issuance is often sparse. They mobilize foreign investment by tapping into international savings pools, and they support the financing of local currency loans and projects in developing countries.
The beauty of the product is its simplicity. Currency linked bonds are documented principally via a pricing supplement from Global Medium Term Note programs thereby avoiding the need for expansive offering circulars and onerous regulatory filings. Time-to-market is quick with issues mandated, launched, documented and settled within five business days. The bonds are cleared in international central securities depositaries and listed on major stock exchanges. Investors in currency-linked bonds have disparate pedigrees and can include central banks, sovereign wealth funds, insurance companies, pension funds and private banks.
Multilateral development banks (MDBs) are benchmark issuers of currency-linked bonds, since our AAA ratings allow investors to disassociate the currency risk from the credit risk. In some cases, MDBs treat such issues as arbitrage trades, since they don’t need the proceeds in the denomination currency.
For example, when ADB issues bonds in Brazilian real, Mexican peso, Russian rubles or South African rand we simultaneously swap the proceeds into floating rate US dollars with a non-deliverable swap. This is because none of these countries are members of ADB and therefore we have no use for these currencies, although they do provide competitively priced sources of funding. On the other hand, when we issue currency-linked bonds in the currencies of our members we keep those funds for on-lending to development projects. This benefits borrowers by mitigating their currency risk.
Keeping the funds in local currency is not as straightforward as it sounds, since investors pay for their bond purchases in US dollars. To generate the local currency ADB undertakes an FX spot conversion selling dollars for the local currency. Spot FX settles on the second day after trade date (T+2), whereas new issues of bonds settle on the fifth day after trade date (T+5) so there is a mismatch and funding shortfall; we buy the local currency before receiving the money from bond investors. We can do this by dipping into ADB’s prudential liquidity buffers on a temporary basis to cover the three-day gap.
In frontier markets with few options for warehousing the proceeds of bond issues, ADB issues currency-linked bonds on a back-to-back basis with the underlying loan although we may build in an extra day’s cushion before disbursement.
Currency-linked bonds: A powerful tool for emerging markets
In mainstream emerging markets such as India, Indonesia and the Philippines, we can hold the proceeds of our bond issues for significant periods of time until a project is ready for disbursement. We achieve this by investing the proceeds into government bonds of similar duration as an interest rate hedge. Since ADB’s currency-linked bond yields less than the corresponding government security, a positive carry is generated.
There are also opportunities for ADB to deliver broader development impact, by supporting local stock exchanges and working with local counterparties to manage cash and securities. For example, in February 2020, ADB issued a new 10-year, 8.5 billion Indian rupee-linked masala bond, and dual-listed the issue on our normal venue, the Luxembourg Stock Exchange, as well as the Global Securities Market of India International Exchange at Gujarat International Finance Tec-City – International Financial Service Centre.
To date ADB has issued more than $1 billion equivalent of Indian rupee-linked masala bonds with maturities from two to ten years. We have also raised more than $200m equivalent in Philippine peso Boracay bonds and 15-year funding with our second Indonesian rupiah Komodo bond issue. This source of competitively priced funding has provided tangible support for ADB’s private sector operations, with micro-finance, renewable energy and infrastructure projects to the value of more than $716 million funded through currency-linked bonds over the last four years.
There are no limits on the denomination for currency-linked bonds, but investor demand can prove fickle. The pandemic has prompted a wholesale flight to quality and cash from global investors, with emerging markets and frontier markets impacted. But if investors won’t buy ADB’s local currency bonds, fortunately we can turn to alternative financing solutions to limit any fallout on project delivery.
Offshore currency-linked bond markets are helping to make currencies more resilient in developing countries by shepherding foreign investment and encouraging two-way flows. They further spur economic growth and development by complementing domestic capital markets, without crowding the government out of its own funding base.
Philippines, Indonesia, currency, bonds, treasuries, finance, central banks, fiscal management, bond markets, domestic capital marketsJonathan GrosvenorCountries: IndonesiaPhilippinesArticle
Original Source: blogs.adb.org