The Drug Enforcement Administration (DEA) has recognised cannabis seeds as hemp as long as they don’t exceed the THC limit of 0.3%. This clarification Michael Moss wants to help other patients with his mail-order cannabis seed business. He says a legal loophole allows it. Exploring the cannabis seed paradox: cultivators must break the law in order to obtain seeds to grow legal cannabis. Can this issue be fixed?
Marijuana seeds are legal in the U.S. as long as they don’t exceed the THC limit for hemp
The Drug Enforcement Administration (DEA) has recognised cannabis seeds as hemp as long as they don’t exceed the THC limit of 0.3%. This clarification makes them legal under the 2018 Farm Bill and it means that seeds can be shipped legally to anywhere in the country, which opens up a wide range of possibilities for the spreading of the genetic diversity of cannabis across the nation’s markets.
Marijuana may currently be banned by the federal government, but the Drug Enforcement Administration (DEA) has effectively recognised that the plant’s seeds are legal, regardless of how much THC they may end up producing when grown.
This means that cannabis growers can get their seeds from anywhere without having to worry about breaking federal law. Previously, and due to the federal ban, cannabis seeds were restricted to the state where they were produced, so a variety bred and grown in one state couldn’t legally go beyond the limits of that state.
The DEA recently conducted a review of the federal statute in response to a query from attorney Shane Pennington, who inquired about the legality of cannabis seeds and cuttings, and tissue cultures or ‘other genetic material’ containing no more than 0.3% THC.
After the passing of the 2018 Farm Bill, hemp was excluded from the definition of marijuana in the Controlled Substances Act (CSA), which means that currently all parts of the Cannabis sativa L. plant are not controlled, but only as long as they don’t exceed 0.3% THC.
“As a result, those marijuana seeds with a delta-9-tetrahydrocannabinol concentration of no more than 0.3% in dry weight meet the definition of ‘hemp’ and are therefore not controlled by the CSA”, states Terrence L. Boos, head of the DEA’s Drug and Chemical Evaluation Section, in a letter dated 6th January 2022. This comment was made in response to the issues raised by Shane Pennington, who has an extensive history of litigation against the agency on cannabis matters and drug policy.
Both hemp and marijuana seeds generally contain low THC levels, which don’t exceed the legal threshold, and so the DEA essentially permits the purchase of cannabis seeds, no matter how much THC the resulting plant may produce, provided the seeds themselves contain less than 0.3% delta-9 THC.
Nevertheless, it’s important to say that the use of any cannabis seeds with the intention of growing marijuana remains illegal at federal level, since the plant is still banned.
Was it illegal to sell marijuana seeds before?
Until now, cannabis strains have been isolated in the regions where they have been created or where they’ve arrived from other countries, as they couldn’t be transported beyond state borders. For example, although recreational marijuana is legal state-wide in both California and Oregon, moving a plant from one of those states to another is illegal at federal level. This forces cannabis growers and breeders to operate within the limits of the state.
Many cannabis breeders and seed banks sell seeds throughout the U.S. but operate in a legal ‘grey area’. Generally, the labels show that the seeds are sold as a collector’s item or a souvenir, which provides a way to circumvent the law. But if authorities find cannabis seeds in the mail, they may seize them and arrest the sender or recipient, although this is not common. However, all of that could have changed in 2018 without anyone actually knowing about it.
Definition of ‘source’ as opposed to ‘material’
In 2018, the U.S. Congress passed a Farm Bill for the legalisation of hemp in the country. ‘Hemp’ was defined as any cannabis plant with a THC level below 0.3%. With this bill, hemp can be grown and used for industrial purposes. The 2018 bill also permits hemp production for the creation of cannabinoids other than THC, such as CBD or delta-8 THC.
Cannabis seeds have always been considered illegal because they come from plants with high THC levels. As the source of the seeds has THC levels over 0.3%, anything that comes from those plants (including the seeds) has also been considered illegal cannabis.
But in November 2021, Shane Pennington, attorney at the law firm Vicente Sederberg LLP in New York, wrote to DEA officials asking for clarification on the definition of growing cannabis seeds, clones, and tissue cultures. Mr. Pennington argued that it’s not the source of the material but the material itself that determines its legality, which means that a cannabis seed with less than 0.3% THC should be classified as hemp. And if the seeds are hemp, then they’re not a controlled substance, and are therefore legal at federal level.
What implications does this have for the cannabis industry?
If the DEA and the federal government permit seeds to move freely across the country, anyone would then be able to grow seeds from anywhere in their own state and certain strains would no longer be confined to a specific region. This could potentially trigger interest in investment, the development of a larger industry, and greater acceptance of the plant, as well as the expansion of the area of genetic innovation. The removal of transportation barriers between states would open up the genetic pool of cannabis, which would in turn provide breeders with a greater diversity of strains to work with.
According to Pennington, the federal law seems to be more flexible than expected, and so perhaps the biggest implication is that this sends a clear signal to state regulators. In fact, DEA officials last year clarified to the regulatory authorities that delta-8 THC, an increasingly popular psychoactive cannabinoid, was also not a controlled substance under existing law, because the 2018 Farm Bill that legalised hemp doesn’t explicitly prohibit THC isomers.
The states follow the DEA’s lead by creating their own drug laws, so watching the government agency relax its stance on cannabis seeds could get these states to do the same, thereby breaking protectionist state laws.
However, it’s important to highlight that, even though the DEA calls it ‘an official determination’, it is still not entirely clear whether they are legally bound to this position. For now, the DEA’s recognition that seeds, cuttings, and cannabis tissue cultures are not controlled substances is not a law, but it does signify a big step forward in easing the restrictions on marijuana.
Kannabia Seeds Company sells to its customers a product collection, a souvenir. We cannot and we shall not give growing advice since our product is not intended for this purpose.
Kannabia accept no responsibility for any illegal use made by third parties of information published. The cultivation of cannabis for personal consumption is an activity subject to legal restrictions that vary from state to state. We recommend consultation of the legislation in force in your country of residence to avoid participation in any illegal activity.
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Pipe Dream? Arizona Man Believes Legal Loophole Lets Him Sell Pot Seeds
Michael Moss was a welder until degenerative disc disease forced him into an early retirement. In 2011, he moved to Arizona for the climate, landing in the small Navajo County city of Show Low.
What followed was a series of surgeries that sandwiched the broken vertebrae in the middle of his spine between 24 screws in his neck and six lag bolts in his lower back.
When the heavy, opioid-based painkillers doctors prescribed him left him emaciated and like a “zombie,” he turned to medical marijuana. But the high-potency medicine he needed cost as much as $400 a week. That was unaffordable on disability pay, so he started growing his own.
After a bad experience buying seeds, Moss decided to start selling them himself to offer a better alternative. These days, the 48-year-old entrepreneur is bringing in an estimated $1,000 a month by selling seeds openly on the internet.
“I’m just trying to help people. No one was there to help me,” Moss told Phoenix New Times.
The business is not illegal because the seeds are marketed as “souvenirs,” he said, according to advice he received from an attorney with a prepaid legal service.
However, postal authorities say there is no such loophole, and that Moss could face serious repercussions.
Moss is one of the few U.S.-based cannabis seed vendors and offers what he said is the largest seed collection in Arizona. He has 100 different strains he sells through his website and hopes to have added an additional 100 by next year. Among the payment options accepted: Venmo, Facebook Pay, a Walmart wire transfer and mailed checks. Most of his earnings go back into the business, he said.
While a growing number of states, including Arizona, have legalized recreational or medical marijuana, transporting marijuana products across state borders is a federal offense. Members of Arizona’s cannabis industry joke that the seeds to start state-approved grow ops blew across the border from California in the wind.
Moss openly admits to mailing seeds across state borders. He buys seeds from growers in Washington, California, Oklahoma, and Michigan. People in Oklahoma made up his biggest customer base for a while. While there are “seed banks” in Europe, purchasers carry the risk of having their seeds intercepted by customs officials if not properly disguised. Seeds shipped within the United States don’t have that problem.
After consulting with lawyers at LegalShield, a prepaid legal insurance service, Moss said he believes what he is doing is legal as long as the seeds are sold as souvenirs or collectors items to people over the age of 21. His website and pop-up stores carry disclaimers saying as much.
“Once they leave me, it’s up to [buyers] to abide by their state laws,” Moss said, acknowledging that he will help offer general advice about cultivating cannabis to anyone who calls.
Not only is Moss operating in the open, but his Venmo feed is public, showing the names of purchasers and their order numbers. Discretion isn’t in the business plan: He used some of his savings to get a car decorated with weed decals and the name of his business, MossMSeeds. Soon, he’s going to add neon lighting to the ride and a smoke machine. He gave an interview to the White Mountain Independent for an article about his business last month, and Moss comes to the Valley on weekends for events and podcast interviews.
“I’m a handicapped, disabled guy trying to keep myself well and it’s just a plant,” he said. “The wheelchair is coming. That’s why I’m trying to make a mark.”
Plant or not, federal authorities don’t take kindly to distributing pot seeds in the mail.
Liz Davis, a spokesperson for the Phoenix division of the U.S. Postal Inspection Service, said that while marijuana is legal in some states, it’s federally illegal under the Controlled Substances Act and cannabis seeds are therefore illegal to mail. The inspection service aggressively pursues people who traffic in all forms of illegal narcotics, she said.
“Honestly, as Postal Inspectors, we don’t really care what someone purports to be selling. If it is illegal to mail, it is illegal to mail,” Davis wrote in an email. “Our mission as inspectors is to ensure the mail is safe for our employees and our customers. Whether stated as a souvenir or having an agricultural purpose, it is still a controlled substance and therefore nonmailable. USPS Letter Carriers have been killed delivering parcels containing controlled substances. If it is a nonmailable item, we do not want it in the mail.”
Davis added that if New Times shared Moss’ name and contact information, they would investigate further. New Times declined her offer. But Moss isn’t hiding.
Phoenix cannabis attorney Tom Dean said Moss is facing serious legal jeopardy.
“My advice to him is not to do it,” said Dean, a former legal director for the National Organization for the Reform of Marijuana Laws (NORML) who has practiced cannabis law for over 20 years. Even if someone has a “clever” defense, most don’t get a chance to use it because that would require going to trial and facing mandatory prison time if it doesn’t work. Instead, they take a plea deal. In this case, “there’s no grey area,” Dean said.
When New Times asked Moss about what Dean said, he cited a different website selling seeds that claims marijuana seeds are legal in Arizona since they don’t contain THC or CBD. He also pointed out that he had obtained a license from the state to sell agricultural seeds at his lawyer’s advice.
That’s no good, according to Dean. For one, un-sterilized seeds are explicitly considered marijuana for the purposes of Arizona and federal law, meaning that selling them within Arizona requires a license. Even if selling seeds was legal in Arizona, transporting them between states and in the mail is a federal offense.
“The seed dealer’s license doesn’t mean he can sell illegal drugs,” Dean said.
It’s unclear how much emphasis federal or state authorities may put on cracking down on people like Moss, Dean said. But based on how they’ve handled medical marijuana, local law enforcement may face pressure from the cannabis industry to crack down on unlicensed growers and avoid a free-for-all. People who buy from Moss are unlikely to face prosecution, but it’s not out of the question.
“Good intentions are not a defense. Being mistaken is not a defense. And law enforcement could care less about that kind of thing,” he said.
While Moss is small-time compared to some other online seed vendors, the federal government has cracked down hard on similar businesses in the past.
In 2005, Western District of Washington U.S. Attorney Jenny Durkan, now mayor of Seattle, had the head of the British Columbia Marijuana Party extradited to the United States on charges of selling marijuana seeds to Americans through the mail. Marc Emery claimed to be making $3 million a year from the sales and was eventually sentenced to five years in prison.
David Williams, the general counsel for the law firm Davis Miles McGuire Gardner, PLLC, which provided Moss his advice through LegalShield, said he could not comment or acknowledge whether Moss was a client of the firm due to attorney-client confidentially. In an email sent to Moss, and shared with New Times, he said they provided him limited advice but do not comment on their work to the media.
Despite Dean’s warning, Moss said on Wednesday he plans to continue his business based on the advice he says he got from the LegalShield attorney and what he’s read online.
“It is kind of concerning, but at the same time I’m going to keep doing what I got to do,” he said. “If they want to pick on a disabled guy over a plant … I’m a disabled guy who doesn’t want to be on pain meds and this is what helps me.”
“I bet he never Googled it,” he added of Dean.
In an interview the next day, Moss told New Times he had Googled local cannabis attorneys, calling as many as he could. He spoke to one on Thursday morning who told him he was at some risk but that the lawyer’s “gut feeling” was that authorities wouldn’t come after him. That made Moss feel better. At the attorney’s recommendation, he’s going to start including the disclaimer from his website in each package.
“I feel a lot safer at this point,” Moss said.
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The Cannabis Seed Paradox: Breaking The Law To Grow
You’ve seen our physicians at Green Health Docs . You have your certification. You’ve registered with the state and gotten proper authorization to grow medical cannabis at home. But then comes the cannabis seed paradox!
Find out what the cannabis seed paradox is below. And how cultivators get around it. (Hint: they break the law)
The Cannabis Seed Paradox
Once you have your home cultivation authorization, it’s time to start growing medical cannabis . But there’s one small hitch. Where the hell does one get seeds?
Well, here’s the rub. Seeds are illegal. That is, it is illegal under federal law to move cannabis across state lines. This includes full grown plants, clones, seedlings or even seeds themselves. Yup, you read that right. Home cultivators will need to do something illegal in order to grow legal medical cannabis.
Some clinics and cultivation businesses may offer seeds for free, a quick and easy way for patients to bypass this hurdle. But literally thousands of Missouri medical marijuana patients will be stuck searching for places to buy seeds. And regardless of legality, many patients will try to buy or order seeds online in order to get a specific strain that caters to their medical needs.
Selling Seeds is Illegal, Online or in Missouri
Even retailers are walking a thin line when it comes to selling cannabis seeds in Missouri. Proper state authorization is required in order to sell cannabis products, like dry flower, edibles or oils . Products can only be sold to state medical marijuana patients. Seeds will likely not be sold in medical marijuana dispensaries, though that’s a possibility at some point.
Anyone selling seeds outside the medical marijuana arena is likely doing so without legal authorization. This puts their business at risk for penalty or punishment if caught.
Seeds sold online are typically sold in states or countries where cannabis is legal. However, shipping seeds in the mail is a federal crime. If you’ve ever been burned by purchasing seeds online, chances are your seeds were simply confiscated by authorities before making their way to your door.
Seeds online are also a crap-shoot. You may get that award-winning strain, or you may get some messed up hybrid that gives you the jitters. And worse, you won’t know until harvest. Buying online isn’t the best way to get seeds, but sometimes it’s the only option from some cultivators.
Bypassing the Law?
Even large scale cultivators will face the cannabis seed paradox. In order to begin their grows, they must either bring in seeds or clones from another state or country. As cannabis is still illegal under federal law, crossing the border or state lines constitutes of federal felony. Getting caught could result in severe legal punishment, possibly even jail time.
And yet, cultivators grow cannabis in every state with an active marijuana program. That means the law was broken with no real consequence. Seeds, after all, are fairly innocuous and difficult to detect. A pack of seeds could fit into a wallet, or even a small envelope with no trouble whatsoever. Seeds give off little to no smell, and are largely indistinguishable from hemp seeds. It is a crime to move seeds across state lines, but it’s an undetectable crime that doesn’t harm anyone. This is likely why it goes unpunished.
Clones, on the other hand, are far easier to detect. Cannabis has a smell beginning around the first few leaves. The smell is surprisingly dank by this stage. Moving clones across state lines is a much riskier endeavor. Many cultivators will risk it, however, as it greatly speeds up the time to harvest. This means that patients get medical cannabis in their dispensaries much faster.
Legalizing Cannabis Seeds
Even if the federal government decides not to reschedule cannabis, removing it from the list of the most restricted drugs in the country, something must be done about the cannabis seed paradox. This issue affects every single state with a medical marijuana or recreational marijuana program.
Ohio faced this issue when their program launched in 2016. Maryland also faced this paradox a year earlier with their program. And this same paradox struck Michigan, Pennsylvania and Illinois. The list goes on…
Legalizing cannabis seeds and clones for authorized businesses and medical marijuana patients makes sense. It allows the federal government to properly track each sale of cannabis seeds and clones. This gives them a better sense of what is moving where, and when. This could also lead to better tracking of black market cannabis.
And let’s be real. Legalizing cannabis seeds and clones allows safe passage for those seeds and clones, and the employees entrusted with the task of moving them. There are a lot of noble botanists trying their best to bring good quality cannabis to medical marijuana patients. But those heroes are putting a lot on the line when moving seeds across state lines or borders. Legalization would protect them and allow these employees to do their job more efficiently.
Legal Seeds for Patients
Patients with proper home cultivation authorization should also be allowed to purchase and transport seeds or clones across state lines from authorized retailers. Full stop.
Seed and clone tracking, if necessary, could be done through the same database established for tracking medical marijuana purchased in the state at dispensaries. The state could even regulate high potency strains, if such a thing were cause for alarm.
Regardless, a medical marijuana patient deserves the freedom to legally grow their cannabis, and one of those stages is buying the actual plant itself. If a patient is allowed to grow cannabis, they should be allowed to buy cannabis seeds. The whole process should be legal, from seed to medication.
Getting Your Certification
In order to grow cannabis at home, a qualifying patient must first get a certificate to use medical cannabis. You can do so by seeing one of our licensed medical marijuana physicians at Green Health Docs in Missouri . They can help you get certified, and our support team can walk you through the home cultivation application process. To get started, simply call 1-877-242-0362 today! Patients can obtain a card either in-person at our Missouri clinics, or through online.