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S. 862: Clarifying Law Around Insurance of Marijuana Act


The text of the bill below is as of Mar 18, 2021 (Introduced).

Summary of this bill

As it becomes legal in more states but remains illegal on a federal level, should insurers get involved in the industry?

Context

States have increasingly legalized recreational or at least medical marijuana, including such high-population states as California and New York, plus all five states where the issue was on the ballot in 2020.

However, the drug remains illegal on a federal level. While the House in 2020 passed the MORE Act to legalize marijuana, on a largely party line vote, it never received a vote in the then-Republican controlled Senate.

So far, the federal government has largely declined to prosecute marijuana businesses, use, or possession in states which have ...


II

117th CONGRESS

1st Session

S. 862

IN THE SENATE OF THE UNITED STATES

March 18, 2021

(for himself, Mr. Paul, and Mr. Merkley) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs

A BILL

To create a safe harbor for insurers engaging in the business of insurance in connection with a cannabis-related legitimate business, and for other purposes.

1.

Short title

This Act may be cited as the Clarifying Law Around Insurance of Marijuana Act or the CLAIM Act.

2.

Safe harbor for insurers and the business of insurance

(a)

Definitions

In this Act:

(1)

Cannabis

The term cannabis has the meaning given the term marihuana in section 102 of the Controlled Substances Act (21 U.S.C. 802).

(2)

Cannabis product

The term cannabis product means any article that contains cannabis, including an article which is a concentrate, an edible, a tincture, a cannabis-infused product, or a topical.

(3)

Cannabis-related legitimate business

The term cannabis-related legitimate business means a manufacturer, producer, or any person or company that—

(A)

engages in any activity described in subparagraph (B) pursuant to a law established by a State or a political subdivision of a State, as determined by the State or political subdivision; and

(B)

participates in any business or organized activity that involves handling cannabis or cannabis products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing cannabis or cannabis products.

(4)

Federal agency

The term Federal agency

(A)

has the meaning given the term Executive agency in section 105 of title 5, United States Code; and

(B)

includes a private attorney described in section 3002(1)(B) of title 28, United States Code.

(5)

Financial service

The term financial service

(A)

means a financial product or service, as defined in section 1002 of the Consumer Financial Protection Act of 2010 (12 U.S.C. 5481); and

(B)

includes—

(i)

the business of insurance;

(ii)

whether performed directly or indirectly, the authorizing, processing, clearing, settling, billing, transferring for deposit, transmitting, delivering, instructing to be delivered, reconciling, collecting, or otherwise effectuating or facilitating of payments or funds, where such payments or funds are made or transferred by any means, including by the use of credit cards, debit cards, other payment cards, or other access devices, accounts, original or substitute checks, or electronic funds transfers;

(iii)

acting as a money transmitting business that directly or indirectly makes use of a depository institution in connection with effectuating or facilitating a payment for a cannabis-related legitimate business or service provider in compliance with section 5330 of title 31, United States Code, and any applicable State law; and

(iv)

acting as an armored car service for processing and depositing with a depository institution or a Federal Reserve bank with respect to any monetary instruments, as defined in section 1956(c) of title 18, United States Code.

(6)

Indian country

The term Indian country has the meaning given the term in section 1151 of title 18, United States Code.

(7)

Indian Tribe

The term Indian Tribe has the meaning given the term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).

(8)

Insurer

The term insurer has the meaning given the term in section 313(r) of title 31, United States Code.

(9)

Manufacturer

The term manufacturer means a person or company who manufactures, compounds, converts, processes, prepares, or packages cannabis or cannabis products.

(10)

Producer

The term producer means a person who plants, cultivates, harvests, or in any way facilitates the natural growth of cannabis.

(11)

State

The term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

(b)

Insurers

A Federal agency may not—

(1)

prohibit, penalize, or otherwise discourage an insurer from engaging in the business of insurance in connection with—

(A)

a cannabis-related legitimate business; or

(B)

a State, political subdivision of a State, or Indian Tribe that exercises jurisdiction over cannabis-related legitimate businesses;

(2)

terminate, cancel, or otherwise limit the policies of an insurer solely because the insurer has engaged in the business of insurance in connection with a cannabis-related legitimate business;

(3)

recommend, incentivize, or encourage an insurer not to engage in the business of insurance in connection with a policyholder, or downgrade or cancel the insurance and insurance services offered to a policyholder solely because—

(A)

the policyholder is—

(i)

a manufacturer or producer; or

(ii)

the owner, operator, or employee of a cannabis-related legitimate business;

(B)

the policyholder later becomes an employee, owner, or operator of a cannabis-related legitimate business; or

(C)

the insurer was not aware that the policyholder is an employee, owner, or operator of a cannabis-related legitimate business; or

(4)

take any adverse or corrective supervisory action on a policy to—

(A)

a cannabis-related legitimate business, solely because the owner or operator owns or operates a cannabis-related legitimate business;

(B)

an employee, owner, or operator of a cannabis-related legitimate business or service provider, solely because the employee, owner, or operator is employed by, owns, or operates a cannabis-related legitimate business, as applicable; or

(C)

an owner or operator of real estate or equipment that is leased to a cannabis-related legitimate business, solely because the owner or operator of the real estate or equipment leased the equipment or real estate to a cannabis-related legitimate business, as applicable.

(c)

Protections under Federal law

With respect to engaging in the business of insurance within a State, political subdivision of a State, or Indian country that allows the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of cannabis pursuant to a law or regulation of such State, political subdivision, or Indian Tribe that has jurisdiction over the Indian country, as applicable, an insurer that engages in the business of insurance with a cannabis-related legitimate business or service provider or who otherwise engages with a person in a transaction permissible under State law related to cannabis, and the officers, directors, and employees of that insurer may not be held liable pursuant to any Federal law or regulation—

(1)

solely for engaging in the business of insurance; or

(2)

for further investing any income derived from such business of insurance.

(d)

Rule of construction

Nothing in this Act shall—

(1)

require an insurer to engage in the business of insurance in connection with a cannabis-related legitimate business; or

(2)

interfere with the regulation of the business of insurance in accordance with the Act of March 9, 1945 (59 Stat. 33, chapter 20; 15 U.S.C. 1011 et seq.) (commonly known as the McCarran-Ferguson Act), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5301 et seq.).

3.

GAO study on diversity and inclusion

(a)

Study

The Comptroller General of the United States shall carry out a study on the barriers to marketplace entry, including in the licensing process, and the access to financial services for potential and existing minority-owned and women-owned cannabis-related legitimate businesses.

(b)

Report

The Comptroller General shall submit to Congress a report—

(1)

containing all findings and determinations made in carrying out the study required under subsection (a); and

(2)

containing any regulatory or legislative recommendations for removing barriers to marketplace entry, including in the licensing process, and expanding access to financial services for potential and existing minority-owned and women-owned cannabis-related legitimate businesses.