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Did You Receive a PPP Loan? What Cannabis
Businesses Need To Know

byBenzinga
Cannabis Contributors

October 22, 2020 11:47 am

License

Accepting
a federal loan is among the highest risks a federally illegal business can
undertake

By Lloyd Pierre-Louis

As the pandemic continues to impact America’s economy, many business owners –
and Capitol Hill lawmakers – are supportive of another round of funding for the
Paycheck Protection Program.

But what if your cannabis business has already received a PPP loan? What if
yours was one of the more than five million businesses nationwide that shared in
the $525 billion of PPP loans that were issued between April and August?

Administered by the Small Business Administration, PPP loans provide a direct
incentive for small businesses to keep their workers on the payroll. The PPP’s
key feature permits the SBA to forgive loans if all employee retention criteria
are met, and the funds are used for eligible expenses.

Because the 2018 Farm Bill legalized hemp nationally, SBA guidelines state
that hemp businesses were eligible to apply for federal PPP funding. It is a
very different story, however, for state-licensed cannabis businesses, which
were essentially ineligible for PPP loans. They now find themselves in a
potentially problematic legal situation if they did manage to receive
funding.

Different rules for cannabis
businesses

Although governors in most states that have legalized the use of cannabis for
medical purposes considered industry employees as essential workers, federal
rules governing all SBA loans deemed their employers ineligible for the loans.
In short, legal cannabis businesses cannot participate in the PPP. Before the
PPP closed on August 8, however, several state-licensed cannabis businesses
openly announced their loan applications had been approved.

The SBA considers as ineligible for loans all business concerns that are
engaged in any illegal activity (13 CFR § 120.110[h]).

As a result, a concern that grows, produces, processes, distributes or sells
marijuana or marijuana products, edibles or derivatives – called a “direct
marijuana business” – is ineligible. Similarly, a business that derived any of
its gross revenue for the previous year from sales to direct marijuana
businesses of products or services to support the use, growth, enhancement or
other development of marijuana – called an “indirect marijuana business” – is
ineligible.

Some cannabis businesses
still applied anyway

So how, and under what authority, are these direct or indirect marijuana
businesses participating in the PPP?

Perhaps the loan reviewers were not paying close attention. Perhaps some
businesses do not consider themselves indirect marijuana businesses because
their activities touch on some, but not all, of the characteristics above, or
they routinely service businesses outside the legal cannabis industry as
well.

Or perhaps because a few federal courts have allowed other categories of
businesses, which the traditional SBA rules and interpretations excluded from
loan eligibility, to participate in the PPP. By extension, in theory, so can the
legal cannabis industry. But applying for and accepting a PPP loan is among the
highest risks a direct or indirect marijuana business can undertake within an
industry already fraught with the risks inherent in operating a federally
illegal business.

What the courts say

The PPP, established under the Coronavirus Aid, Relief, and Economic Security
Act (CARES Act), is intended to increase eligibility for certain small
businesses and organizations that were otherwise excluded by the SBA. For
example, religious institutions are ineligible under SBA regulations, but the
CARES Act specifically provides eligibility for nonprofits (15
USC§636[a][36][D]). Additionally, a few federal courts upheld an interpretation
barring the SBA from prohibiting PPP loans to adult-oriented businesses.

See, for example, Diamond Club of Flint v. SBA, 960F.3d 743, 746-47 (6th Cir.
2020). That court determined the CARES Act’s specification that “any business
concern” is eligible so long as it meets the size criteria to be a reasonable
interpretation, and that Congress intended the SBA’s longstanding
ineligibility rules to be inapplicable given the current circumstances.

But federal courts have disagreed over whether the SBA can impose additional
restrictions, especially given that Congress placed the PPP within the Small
Business Act (§7[a]), and the CARES Act does not prevent the SBA from imposing
additional restrictions (Defy Ventures v. SBA, 2020 WL 3546873, at *8 [D.C. MD
June 29, 2020]). Ultimately, no federal court has interpreted “any business
concern” to include illegal businesses.

The takeaway

All SBA loan applicants must make a good faith certification that they are
not engaged in any federally illegal activity. Therefore, any state legal
cannabis business must make a materially false statement to secure
federally-backed loan funds if they apply for the PPP. A misinterpretation of
federal law will not excuse the conduct, and will expose the legal cannabis
business to a myriad of problems, including bank fraud and wire fraud. The only
remedy would be a Congressional act that clearly includes legal cannabis
businesses as eligible PPP participants.

Some PPP loan recipients have already been audited, so any cannabis-related
business owner that has received PPP funding would be well advised to consult
with their attorney before the auditors come knocking.

Lloyd Pierre-Louis is an attorney member of Dickinson Wright’s Cannabis
Practice Group. Mark A. Esposito is one of the only full-service law firms that
welcomes cannabis industry clients, providing specialized counsel both to
clients operating with state-issued licenses and to businesses providing goods
and services to the industry.

Benzinga Related Links:

Want A PPP loan? Get Moving, Experts
Advise

Massachusetts
Considers Providing Financial Aid For Cannabis Businesses

photo via unsplash

The preceding article is from one of our external contributors. It does not
represent the opinion of Benzinga and has not been edited.

© 2020 Benzinga.com. Benzinga does not provide
investment advice. All rights reserved.

Posted-In:
Cannabis
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449.66K

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2.91M

0.79%

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2.52M

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1.70M

0.63%

HEXO

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KushCo Holdings

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Helix TCS

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173.30K

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1.24M

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274.99K

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138.36K

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120.38K

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534.74K

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NexTech AR Solns

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93.57K

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Arena Pharmaceuticals

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85.48K

0.15%

Compass Diversified Hldgs

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95.99K

0.15%

MariMed

MRMD

354.14K

0.14%

Earth Science Tech

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50.23K

0.14%

Body and Mind

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129.54K

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Next Green Wave Holdings

NXGWF

196.69K

0.12%

Vireo Health Intl

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103.51K

0.12%

The Scotts Miracle Gro

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60.56K

0.11%

Green Organic Dutchman

TGODF

308.87K

0.09%

General Cannabis

CANN

38.03K

0.09%

Auxly Cannabis Group

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479.27K

0.08%

Cresco Labs

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152.09K

0.08%

Khiron Life Sciences

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90.24K

0.08%

GreenGro Technologies

GRNH

461.03K

0.08%

Charlottes Web Holdings

CWBHF

84.91K

0.08%

Flower One Hldgs

FLOOF

120.38K

0.07%

Lexaria Bioscience

LXRP

58.60K

0.07%

Captor Capital

CPTRF

28.60K

0.07%

Emerald Health

EMHTF

121.77K

0.06%

Green Thumb Industries

GTBIF

133.95K

0.06%

Cannabics Pharmaceuticals

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83.95K

0.06%

Icanic Brands

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70.10K

0.05%

Encompass Health

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54.39K

0.05%

iAnthus Capital Hldgs

ITHUF

91.46K

0.05%

1933 Industries

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133.08K

0.05%

Global Cannabis

FUAPF

46.58K

0.04%

Liberty Health Sciences

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151.22K

0.04%

Curaleaf Holdings

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221.42K

0.04%

4Front Ventures

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230.99K

0.04%

Cansortium

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56.75K

0.03%

Driven Deliveries

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18.38K

0.03%

Zenabis Global

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129.60K

0.03%

The Flowr

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27.87K

0.03%

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35.26K

0.03%

Chemesis International

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8.88K

0.03%

MPX International

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40.40K

0.03%

Green Growth Brands

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50.27K

0.02%

Marrone Bio Innovations

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29.27K

0.02%

ESCO Technologies

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6.37K

0.02%

Global Hemp Group

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41.44K

0.02%

EASTWEST
BIOSCIENCE INC by EastWest Bioscience Inc.

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20.00K

0.02%

Abattis Bioceuticals

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113.16K

0.02%

Rocky Mountain High

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31.85K

0.02%

CURE Pharmaceutical Hldg

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7.90K

0.02%

Psychemedics

PMD

1.31K

0.02%

Grindrod Shipping Hldgs

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3.54K

0.02%

Gaby

GABLF

10.00K

0.01%

Cannabix Technologies

BLOZF

12.65K

0.01%

Aleafia Health

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42.18K

0.01%

Belgravia Hartford

BLGVF

32.00K

0.01%

Delta 9 Cannabis

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11.80K

0.01%

Canopy Rivers

CNPOF

14.16K

0.01%

Leafbuyer Technologies

LBUY

12.06K

0.01%

Future Farm Technologies

FFRMF

16.88K

0.01%

C21 Investments

CXXIF

4.90K

0.01%

BioHarvest Sciences

CNVCF

60.50K

0.01%

Kaya Holdings

KAYS

15.61K

0.01%

Choom Holdings

CHOOF

13.55K

0.01%

0.00

0%

FinCanna Capital

FNNZF

0.00

0%

Ventura Cannabis

CVHIF

217.00

0%

Pharmadrug

LMLLF

75.00

0%

0.00

0%

High Tide

HITIF

1.50K

0%

SOL Global Investments

SOLCF

1.94K

0%

INNER
SPIRIT HOLDINGS ORD by Inner Spirit Holdings

INSHF

0.00

0%

Alcanna

LQSIF

17.00

0%

Lift

LFCOF

1.10K

0%

MGC Pharmaceuticals

MGCLF

0.00

0%

Primo Nutraceuticals

BUGVF

0.00

0%

0.00

0%

CANADA HOUSE WELLNESS GRP by Canada House Wellness Group
Inc.

SARSF

0.00

0%

SUGARBUD
CRAFT GROWERS CP by Sugarbud Craft Growers Corp.

RLLRF

0.00

0%

Wize Pharma

WIZP

0.00

0%

Empower Clinics

EPWCF

3.30K

0%

SPDR S&P 500

SPY

17.12M

0%

LeanLife Health

LNLHF

0.00

0%

ETFMG
Alternative Harvest ETF

MJ

655.57K

0%

Zelira Therapeutics

ZLDAF

20.76K

0%

Nova Mentis Life Science

LIBFF

0.00

0%

Indiva

NDVAF

1.50K

0%

EUREKA 93
INC by Eureka 93 Inc

LXLLF

0.00

0%

Amplify
Seymour Cannabis ETF

CNBS

1.71K

0%

Elixinol Global

ELLXF

6.20K

0%

GreenTree Hospitality Gr

GHG

4.44K

0%

0.00

0%

0.00

0%

Harvest One Cannabis

HRVOF

0.00

0%

Alternate Health

AHGIF

0.00

0%

Item 9 Labs

INLB

505.00

0%

Nextleaf Solutions

OILFF

4.60K

0%

James E. Wagner

JWCAF

250.00

0%

CloudMD
Software & Services Inc Ordinary Shares

PHGRF

0.00

0%

HZEMF

0.00

0%

Organic Flower Inv Gr

QILFF

0.00

0%

Medicine Man
Technologies Inc

MDCL

0.00

0%

Alternet Systems

ALYI

4.39M

0%

0.00

0%

Urban-gro

UGRO

0.00

0%

0.00

0%

0.00

0%

HMLSF

2.64K

0%

Applied Biosciences

APPB

0.00

0%

Hollister Biosciences

HSTRF

152.57K

0%

Matica Enterprises

MMJFF

1.00K

0%

0.00

0%

North Bud Farms

NOBDF

1.00K

0%

AusCann Group Holdings

ACNNF

1.30K

0%

CLS Holdings USA

CLSH

800.00

0%

Benchmark Botanics

BHHKF

0.00

0%

0.00

0%

Nabis Holdings

NABIF

1.00K

0%

Gridiron BioNutrients

GMVP

153.00

0%

Tetra Bio Pharma

TBPMF

12.13K

0%

Blueberries Medical

BBRRF

2.40K

0%

EVVLF

0.00

0%

GSRX Industries

GSRX

0.00

0%

Canna Consumer Goods

CBMJ

284.71K

0%

BRAINGRID
LTD by Braingrid Ltd.

BGRDF

0.00

0%

0.00

0%

0.00

0%

Heritage Cannabis Holding

HERTF

0.00

0%

Cannabis Gwth Opp

CWWBF

672.00

0%

Advantis

ADVT

0.00

0%

InMed Pharmaceuticals

IMLFF

1.76K

0%

Global Health Clinics

LRSNF

0.00

0%

MOJAVE
JANE BRANDS INC by Mojave Jane Brands Inc.

HHPHF

0.00

0%

KALYTERA
THERAPEUTICS ORD by Kalytera Therapeutics Inc.

KALTF

0.00

0%

Emerald Organic Products

EMOR

0.00

0%

Hemp

HEMP

8.18M

0%

Origin House

ORHOF

0.00

0%

CBD Of Denver

CBDD

0.97M

0%

VIVO Cannabis

VVCIF

3.18K

0%

Eve

EEVVF

0.00

0%

Peak Pharmaceuticals

PKPH

1.00K

0%

DIONYMED
BRANDS INC by Dionymed Brands Inc.

DYMEF

0.00

0%

0.00

0%

Maple Leaf Green World

MGWFF

4.00K

0%

ALLIANCE
GROWERS CORP ORD by Alliance Growers Corp

ALGWF

0.00

0%

Leviathan Natural

LVCNF

0.00

0%

Target Group

CBDY

5.00

0%

Cannex
Capital Holdings Inc

CNXXF

0.00

0%

AdvisorShares Pure Cannabis ETF

YOLO

38.56K

0%

CIPHER
PHARMS INC ORD by Cipher Pharmaceuticals, Inc.

CPHRF

300.00

0%

0.00

0%

Kali

KALY

1.57M

0%

0.00

0%

Acreage Holdings

ACRGF

0.00

0%

Isodiol International

ISOLF

1.51K

0%

Cann Gr

CNGGF

1.00K

0%

Invesco
S&P 500 Equal Weight Industrials Portfolio

RGI

3.69K

0%

CannAwake

CANX

0.00

0%

0.00

0%

Australis Capital

AUSAF

600.00

0%

Koios Beverage

KBEVF

2.60K

0%

CannaPowder

CAPD

0.00

0%

Rhinomed

RHNMF

0.00

0%

Golden Leaf Holdings

GLDFF

7.30K

0%

Affinor Growers

RSSFF

1.00K

0%

48North Cannabis

NCNNF

300.00

0%

Radiko Holdings

GEATF

0.00

0%

Sugar Creek Financial

SUGR

0.00

0%

GTEC Holdings

GGTTF

700.00

0%

Beleave

BLEVF

15.65K

0%

World Class
Extractions Inc

WDEXF

0.00

0%

Better Plant Sciences Inc

BOSQF

0.00

0%

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