Legal Issues in Selling Cannabis Seeds in California
Last month marked the start of the typical marijuana grow season, which runs March through November, which meant individuals and large cannabis firms in California were on the hunt for high-quality seeds for purchase on the legal market. Cannabis seeds are at the core of the California marijuana industry, and the internet can connect farmers from San Diego to San Francisco and beyond to the growing demand.
But are sales of cannabis seeds legal? Some growers serve both the grey and legal market marijuana seeds.
As the legal cannabis market has expanded, selling cannabis seeds has become more commonplace, especially as consumers’ tastes become more refined. Still not all cannabis seed sales are lawful.
Genetic Seed Variations Can Be Protected Intellectual Property
Los Angeles marijuana lawyers recognize there is great diversity in seed genetics, and advise companies to seek counsel before arranging any kind of retail sale or transport.
Many marijuana growers pride themselves on their extensive knowledge of marijuana growth, which obviously begins with the seed. The three basic types of cannabis seeds are regular, autoflowering and female, with each containing broad subtypes, often referred to as “strains.” Many cannabis cultivators pride themselves on various elements of the strains they grow, as the effects can vary widely depending on seed properties. Certain strains are better for those seeking medicinal relief, while others are better for creating various degrees of intoxication and still others for a distinct taste. Growers are increasingly asserting intellectual property rights, something all cultivators should discuss with their cannabis business attorney.
Cannabis Seed Sales and California Law
Laws pertaining to sales of marijuana seeds or associated products vary a great deal in the U.S. and beyond, in part because there is a general lack of understanding on how they should be defined. Some consider seed sales ancillary to the cannabis market, but the reality is because these are part of the cannabis plant (or rather, its origins) these too are controlled.
Generally speaking, cannabis seeds can be lawfully purchased by adults states with legal adult recreational use (like California) either at a dispensary or online intrastate (meaning not purchased from another state – even one that has also legalized the drug). The reason for this restriction is that interstate sales fall under the purview of federal law, which still considers marijuana a dangerous narcotic.
Los Angeles marijuana dispensaries routinely sell pot seeds over-the-counter, and cost is roughly $12 for a pack of 10, though higher-end strains can run several hundred dollars. Dispensary options are limited compared to what one might find online at a California cannabis seed bank.
The California Cannabis Control Board in accordance with Prop. 64 caps the maximum number of cannabis plants that can be grown by an individual at any given time at six. That assumes you’re over 21 and aren’t doing so in a community that has a local ordinance banning or further restricting such cultivation.
Those selling cannabis seeds in California, either in-store or online, need to be certain procedures are in place to prevent sales to restricted buyers (mostly minors).
Buying, selling or transporting those seeds out-of-state though is where things can get dicey.
International Weed Seed Sales
Internationally, many countries don’t restrict or regulate cannabis seed sales, as the seeds have a myriad of benign uses. These can include production of clothing material, oils and food for animals/fishing bait.
However, other countries are much more strict about what can be imported and for what purpose. Los Angeles cannabis lawyers strongly advise anyone conducting international sales of any cannabis product to consult with an attorney. Failure to do so could affect your pocketbook (if customs in another country refuses to allow your shipment to reach its final destination). However, it can also draw the attention of U.S. law enforcement agents, with the possibility of criminal charges.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.
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.
A guide to buying cannabis seeds
The first couple months of the year is a great time to start planning your cannabis garden to get a head start on the outdoor growing season, which roughly runs from March to November, depending on where you live.
Navigating the cannabis seed market can be challenging when states have different degrees of legality. This guide will answer your questions on buying seeds so you can be on your way to growing your own cannabis.
Is it legal to buy marijuana seeds?
Marijuana seeds are considered a cannabis product just like flower, edibles, and concentrates. Their legality depends on which state you live in. People living in states with adult-use legalization can buy, produce, and sell seeds within their own state, but seeds can’t cross state lines. People living in states with medical marijuana legalization can only buy seeds if they have a medical card.
Seed banks exist outside of the US and can sell them for “souvenir purposes,” but it is illegal to bring seeds into the US and Customs will seize any cannabis seeds they find in packages or on a person.
Where can I buy cannabis seeds?
Many world-renowned seed banks are overseas in the Netherlands, the UK, Spain, and other countries where cannabis laws are less restricted. Seed banks provide seeds from a variety of different breeders.
In states with adult-use legalization or a medical marijuana program, you can buy seeds within your own state, either at a dispensary or through a specific seed company’s website.
Can you buy cannabis seeds online?
Before you purchase seeds online, you’ll need to figure out what strain you want to grow and what breeder you want to buy from.
Because US federal law still prohibits cannabis, it can be hard to find information on seed banks and breeders. Breeders who have a long history and positive reputation are usually a good place to start.
Check out our explainer and buying guide to cannabis seed banks for more info on buying seeds.
To get an idea of what well-established breeders look like, check out:
- Sensi Seeds
- DNA Genetics
- Green House Seeds
- Southern Humboldt Seed Collective
- Exotic Genetix
You can also do some research and find an online grow journal that details the whole growing process of a specific strain from a particular breeder. Through these, you’ll be able to look over another grower’s specific notes and see pictures of the final results.
If you grow some seeds and like the results, try growing another strain from that same breeder and see how it goes.
Do dispensaries sell cannabis seeds?
Some dispensaries in medical and adult-use states sell seeds, but not all. Be sure to check or call ahead to see if they sell seeds. Buying marijuana seeds at the dispensary is far more straightforward, however, your options will be more limited than shopping online.
Dispensary staff should be able to give you information on the seeds they’re selling, but keep in mind that a lot of dispensaries focus on selling flower and end-products. It’s a good idea to call ahead and talk to staff to see if they are knowledgeable about seeds and can give you specific information on growing.
How to look for quality genetics when buying marijuana seeds
Breeders talk about “unstable genetics,” meaning that a seed’s origin is unknown. Make sure that when you buy a packet of seeds that it or the breeder who produced them can list where the seeds came from and how they were crossed and/or backcrossed to get the seed that you hold in your hand. If you can’t get a seed’s history, it could be anything and the result of poor breeding practices.
An inexperienced breeder might cross a male and a female one time and sell the resulting seeds as a new hybrid strain, but professional breeders usually put their strains through several rounds of backcrossing to stabilize the genetics and ensure consistent plants that reflect those genetics.
Which strain should I grow?
Even one weed plant can produce a lot of buds come harvest time, so make sure you grow a strain you like. Note strains you enjoy when you pick something up at the dispensary or smoke with friends, and look for seeds of it when you want to start growing.
Some strains are easier to grow than others because they are more resistant to mold and pests, so if you’re new to growing, you may want to try an easier strain to start.
Some strains also take longer to grow than others. Depending on whether you’re growing indoors or outdoors, you may want to grow a quicker marijuana strain if you live in a climate that get cold and wet early in the season. For example, indicas are known for having a shorter flowering time than sativas.
All of this information should be available to you when buying quality seeds.
What’s the difference between regular, feminized, and autoflower seeds?
If you buy a packet of regular seeds, they’ll come with a mix of males and females. A lot of cultivators prefer to grow these because they haven’t been backcrossed—essentially inbred—as much as feminized or autoflower seeds. You’ll need to sex out the seeds once their reproductive organs show during the flowering phase and discard the males—because they don’t produce buds and will pollenate females, resulting in seeded flowers.
Seeds can come feminized, meaning you can just put them in soil and start growing for buds. These seeds are guaranteed to be bud-producing females and growing them cuts out the step of having to sex out plants and discard the males.
It also reduces the risk of having a stray male sneak into your crop—just one male can pollinate a huge crop, causing your females to focus their energies on producing seeds instead of buds.
Autoflower plants change from the vegetative to flowering state with age, not the changing of their light cycle. They have a short grow-to-harvest time and can be ready to harvest in as little as 2 ½ to 3 months from when you put the seeds in the ground. The downside is that, typically, they are less potent, but autoflower seeds are great for people who want to grow cannabis but don’t want to spend a lot of time doing it.
How much do marijuana seeds cost?
Cannabis seeds usually come in a pack of 10 or 12 seeds and start at around $40 a pack and go up from there. Some high-end genetics can run between $200 to $500 a pack.
Feminized and autoflower seeds will cost more because more breeding work was put in to creating them and they take less time for the grower to get buds.
How many seeds should I buy? Are they all going to survive?
When you grow any amount of seeds, a percentage of them won’t germinate, even if you get them from a reputable breeder. Always count on a few not germinating or dying off, or roughly 1/4 of the total you put in the ground.
When growing regular seeds, some won’t germinate and some will have to be discarded because they’ll turn out to be males. With feminized seeds, some won’t germinate, but a higher percentage of them will turn into flowering plants because there won’t be any males.
If you want six total cannabis plants to harvest for buds and are growing from regular seeds, start with about 4 times as many, or 24 seeds. Some won’t germinate and some will turn out to be males, and then you’ll want to discard down to the six best phenotypes. If growing feminized seeds, you can probably start with about twice as many seeds in this case (about 12); a couple won’t germinate, and then discard down to the six best phenotypes.
Make sure to always stay within your state’s legal limit of growing plants.
How do I buy strain-specific cannabis seeds?
Strains like Blue Dream, Gelato, and Original Glue have gained in popularity in recent years. Check out these resources on how to buy these types of cannabis seeds: