The US Drug Enforcement Administration (DEA) has confirmed that cannabis seeds fall outside the realm of the Controlled Substances Act (CSA) – regardless of how much THC the plant they turn into could eventually yield – because the seed itself contains less than 0.3% THC on a dry weight basis and thus meets the definition of hemp. Cali bud could end up on the East Coast easier than you think, according to a new official determination from the DEA. Why is this declaration for marijuana seeds and legal hemp so significant? Read more…
DEA defines cannabis seeds with less than 0.3% THC as hemp and as legal
The US Drug Enforcement Administration (DEA) has confirmed that cannabis seeds fall outside the realm of the Controlled Substances Act (CSA) – regardless of how much THC the plant they turn into could eventually yield – because the seed itself contains less than 0.3% THC on a dry weight basis and thus meets the definition of hemp.
The official determination could eventually have widespread consequences, but for now it is most likely going to be limited to easing transportation across state lines and an uptick in the sale of cannabis seeds to consumers. However, companies selling seeds need to be wary about how they market products to consumers in order to avoid falling foul of other cannabis prohibition regulations.
Shane Pennington, a lawyer specialising in cannabinoid regulatory issues, wrote to the DEA in November of last year seeking clarification on product legality. The administration’s response to Pennington’s inquiry acknowledges that, under current rules, the potential amount of THC a cannabis plant might produce is not important; all that matters is that the seed contains less than 0.3% THC on a dry weight basis.
“As soon as the story went out, I got a lot of calls,” Pennington told CBD-Intel. “People are starting to use this letter in various ways, and I am sure changes will be seen pretty soon.”
Pennington expects cannabis companies to start using the DEA’s letter in court and in front of state regulators to prove that what the companies do is legal. Tax implications and intellectual property claims on products which can now be sold legally are among the changes the DEA pronouncement is likely to effect in the industry.
“We are going to see how different regulators and courts will respond,” he said. “I would say we will start seeing this in the next month or so.”
Federal law rules, though states can go further
Currently, transport is the area most affected. The DEA decision means cannabis seeds should be permitted into and out of the US as well as across internal state lines.
“If the DEA decides to treat seeds, extracts and genetic material below 0.3% as hemp, which it logically should, then it should be the case that there are no import/export requirements on this stuff either,” Pennington said. “The question is you just never know until you see it in action.”
We could see seeds follow a similar precedent to the medical drug Epidiolex, which, after it was approved by the US Food and Drug Administration (FDA), the DEA eventually moved from Schedule 1 to Schedule 5 classification before removing it from the schedules altogether following the passage of the 2018 Farm Bill.
At the state level, the official position means there should not be any federal interference with transport of items such as seeds, extracts and genetic material that meet the THC threshold for the hemp exemption.
But states can still forbid a substance that is not regulated by the CSA and is therefore legal under federal law. This means that states will still be able to prevent the transport of what they consider as illegal cannabis material through their territories.
States though, Pennington said, tend to shape their drug laws based on the DEA’s decisions, which will probably lead to eventual changes at the state level. “It’s conceivable that this determination could have some level of influence to change state laws in the not too distant future,” he said.
It may also lead to challenges against protectionist laws that prohibit the import or sale of cannabis material from other states, Pennington said. These technically contravene the Dormant Commerce Clause and discriminate against producers in other states, but there has traditionally been little appetite to challenge them because previously there was no legal commerce of cannabis material whatsoever.
“Now it’s clear that this is legal under federal law, there is a question about whether those laws, the ones that discriminate against other states’ sellers, are constitutional,” Pennington added, citing a recent case in Maine where licences for medical cannabis were subject to residency requirements. “This is something that is being litigated a lot right now.”
Selling seeds while managing marketing
For retailers selling cannabis seeds, the position puts their business practice in the clear. But it could lead to an entanglement under other laws. While the sale of the seeds is legal, participating in the manufacturing of a controlled substance such as cannabis remains illegal, according to cannabis business lawyer Rod Kight.
“As an advocate for cannabis, I think that any development by law enforcement that allows for a broader interpretation of law is generally good,” Kight told CBD-Intel. “But I think the biggest change here is that this is going to be perceived as an open door to companies who are selling cannabis seeds to really advertise them as cannabis seeds with high THC potential, so I think that’s maybe a trap.”
Promoting cannabis seeds’ potential, such as a particular genetic strain which is known to produce plants with high THC levels, would make them more appealing to buyers, but at the same time it may be considered by authorities as conspiracy to commit a crime.
“You can sell cannabis seeds, but of course there is not a very large profit for just cannabis seeds,” Kight told CBD-Intel. “When my clients call me, they are interested in marketing their qualities, and I tell them not to do that as that would get them into trouble.”
According to Kight, given the DEA’s long history of opposing any reforms in the direction of loosening cannabis regulations, the agency’s letter on cannabis seeds should be met with scepticism: “When the DEA says something that appears to be positive for cannabis, you might want to question that.”
Weed seeds may be legal to ship across the US, DEA says
Cannabis commercial and home growers alike may be able to get their seeds from all over the country now, and not have to worry about breaking federal law. Before, because of federal illegality, cannabis seeds have been restricted to the state in which they were produced, so a strain bred and grown in one state, legally, could not go beyond that state’s boundaries.
A recent legal clarification by the federal Drug Enforcement Administration (DEA) could mean that the seeds of cannabis strains popular in one part of the country could legally be shipped to another part of the country, because the DEA considers all forms of cannabis seeds to be federally legal hemp.
That means strains popular in mature markets like Washington, Oregon, and California could make their way to legal markets on the East Coast in Massachusetts and Maine, and soon-to-open markets like New Jersey and New York.
Marijuana Moment reporter Kyle Jaeger recently unearthed a letter from DEA officials that clarifies the definition of cannabis seeds, clones, and tissue cultures, which could open up a whole range of possibilities for cannabis growers, and could spread a diversity of strains across legal markets all over the country, opening up the gene pool and leading to new trends and tastes in weed.
Are weed seeds illegal?
Right now, cannabis strains are somewhat isolated in the regions they are bred and created, as they can’t be transported beyond state lines. For example, even though recreational weed is legal at the state level in both California and Oregon, moving a plant from one of those states to the other is illegal at the federal level. This forces cannabis growers and breeders to operate within the confines of a specific state.
That’s not to say that a strain bred in California won’t end up in Oregon—it happens all the time, but it is technically illegal, according to federal law.
Many cannabis breeders and seed banks sell seeds throughout the US, but they operate in a legal gray area. Typically, seed producers say their seeds are sold for “novelty” or “souvenir” purposes, giving them a loophole to skirt the law.
If cannabis seeds are found in the mail, they could be seized and the sender or receiver arrested, however, the fact of the matter is that seeds are very difficult to detect. Cannabis seeds are usually less than a ¼” in diameter and don’t smell like weed. A packet of 10 seeds is about the size of four quarters stacked.
But all that might have changed in 2018 without anyone knowing.
Defining ‘source’ vs. ‘material’
In 2018, Congress passed a farm bill that legalized hemp in the US. It defined “hemp” as any cannabis plant with less than 0.3% THC. This allows hemp to be grown and used for industrial purposes—for creating textiles and materials. The 2018 bill also opened up hemp production for the creation of cannabinoids other than delta-9 THC, such as CBD, delta-8, and others.
Because CBD and delta-8 products are usually extracted from hemp plants, that is, cannabis plants containing less than 0.3% THC, they can be found in states that don’t have legal, recreational cannabis.
In November, Shane Pennington, counsel at Vicente Sederberg LLP in New York, wrote to DEA officials asking for clarification of the definition of a cannabis seed, clone, and tissue culture.
Cannabis seeds have always been deemed illegal because they come from plants that are high in THC. The source of the seeds is above 0.3% THC, and therefore anything that comes from those plants, such as seeds, has also been considered illegal cannabis.
Pennington argued that the source of the material doesn’t determine legality, but the material itself—meaning that because a cannabis seed itself contains less than 0.3% THC, it should be classified as hemp. If seeds are hemp, they are not a controlled substance—and are therefore federally legal.
“When it comes to determining whether a particular cannabis-related substance is federally legal ‘hemp’ or schedule I “marihuana,” it is the substance itself that matters—not its source,” Pennington wrote in a blog post.
Exotic Genetix Mike, founder of cannabis producer Exotic Genetix, said the DEA’s ruling “Is what we’ve always kind of practiced. [Seeds contain] less than 0.3% THC—they’re not a controlled substance.”
Mike welcomed the news: “It’s been clarified. Not just what we do is legal, but the money we make for doing it is also legal and not an illegal enterprise.”
What implications does this have for the weed industry?
If the DEA and federal government allow seeds to cross state lines, adults could grow and consume seeds and strains from all over the country in their own state. Certain strains would no longer be confined to a specific region, but could be enjoyed all across the nation.
“It’ll spark innovation, if people can bring it above ground, it can be regulated,” said Pennington in an interview with Leafly.
Regulation can bring more investment, a bigger industry, and more acceptance of the plant.
Breaking down transportation barriers across states would also open up the cannabis gene pool, giving breeders a bigger diversity of strains to work with. The number and diversity of new strains would likely increase, tapping into new consumer trends and flavors.
More strains also means that certain strains could be pinpointed and bred specifically for certain effects, whether for medical or recreational purposes.
But according to Pennington, perhaps the biggest implication is that “This sends a signal, clearly, to state legislators, state regulators, and to groups that lobby those folks… the federal law is more flexible than you assumed.”
States take their cue from the DEA when creating their own drug laws, so seeing the agency relax its stance on shipping cannabis genetics could cause states to follow suit, breaking down protectionist state laws.
This could also open up more accurate research on the plant, according to Pennington. For decades, cannabis research was limited to The University of Mississippi, which grew weed with a low potency, around 8% THC. However, most dispensaries sell cannabis with a THC percentage around 20%. Being able to ship genetics across the country would allow for more robust research into the plant, using strains that mirror what adults are actually buying in stores and consuming.
How binding is the DEA letter?
The DEA calls the letter an “official determination,” but whether or not they are legally bound to this position is a bit hazy.
“That to me sure seems like something the agency would either be bound to going forward or at least be very hesitant to deviate from in any kind of enforcement context,” said Pennington.
For now, the DEA’s acknowledgment that cannabis seeds, clones, and tissue cultures are not controlled substances isn’t law, but it is a big step forward in relaxing restrictions on cannabis.
DEA Declares Marijuana Seeds Below THC Limit are Legal Hemp
https://greenlightlawgroup.com. A January letter from the Drug Enforcement Agency (DEA) revealed its official stance that marijuana seeds with a delta-9 tetrahydrocannabinol (THC) concentration lower than 0.3% on a dry weight basis are considered hemp and are not controlled under the Controlled Substances Act. This declaration is significant because a marijuana product’s legality was previously thought to be determined by whether it was sourced from marijuana or hemp. This new guidance establishes that the legality of marijuana seeds, tissue culture, and other genetic material depends solely on delta-9 THC concentration.
Guidance on marijuana seeds
The 2018 Farm Bill excluded hemp from the Controlled Substances Act (CSA)’s definition of marijuana, lifting control on all parts of the plant Cannabis sativa L., so long as such parts don’t exceed 0.3% delta-9 THC concentration. Shane Pennington, a New York attorney, wrote to DEA requesting the control status of Cannabis sativa L. seeds, tissue culture, and other genetic material of the plant under the CSA. In response, DEA conducted a statutory review of the CSA and its implementing regulations and determined that legality, and thus control status, hinges on delta-9 THC concentration.
Thus, marijuana seeds with a delta-9 THC concentration of less than 0.3% on a dry weight basis meet the definition of hemp and are not controlled under the CSA. Conversely, marijuana seeds with a delta-9 THC concentration above 0.3% on a dry weight basis constitute marijuana, which remains a Schedule I substance under the CSA.
Both hemp and marijuana seeds generally contain nominal THC levels that do not exceed 0.3%, however, this doesn’t guarantee that the resulting plant’s THC level will also fall below the threshold. By differentiating solely on the seeds’ THC concentration, it follows that DEA’s letter may have implied that individuals can legally possess what otherwise would be considered marijuana seeds, so long as the seeds have less than 0.3% THC. However, DEA’s guidance fails to address whether people may possess marijuana seeds and avoid criminal prosecution under the CSA if the plants produced from such seeds were to exceed the permitted THC concentration. Keep in mind that despite the laws in your state, it remains federally illegal to use any cannabis seeds with the intent of growing marijuana. Additionally, the DEA’s letter is only guidance without the full force and effect of the law or of official DEA regulation.
In addition to guidance on marijuana seeds, DEA again relies on the delta-9 THC concentration to clarify the control status of other material derived or extracted from the cannabis plant, such as tissue culture and other genetic material. This guidance mirrors that of marijuana seeds, namely that if such material has a delta-9 THC concentration of less than 0.3% on a dry weight basis, that material constitutes hemp and is not controlled under the CSA. Conversely, material that exceeds the 0.3% delta-9 THC limit constitutes marijuana, which remains a Schedule I controlled substance under the CSA.
Watch this space for more updates on all things cannabis, CBD, hemp, and psilocybin.
You can contact Allison Campbell at [email protected] or 503-488-5424.