DEA Voices New Cannabis Seeds Decision The agency revealed in a legal decision that cannabis seeds, clones and other genetic material containing less than 0.3% THC are legally hemp and therefore WHAT IS MARIJUANA? Marijuana is a mind-altering (psychoactive) drug, produced by the Cannabis sativa plant. Marijuana contains over 480 constituents. THC (delta-9-tetrahydrocannabinol) is believed to be the main ingredient that produces the psychoactive effect. WHAT IS ITS ORIGIN? Marijuana is grown in the United States, Canada, Mexico, South America, Caribbean, and Asia. It can be cultivated in both outdoor and indoor settings. 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.
DEA Voices New Cannabis Seeds Decision
The agency revealed in a legal decision that cannabis seeds, clones and other genetic material containing less than 0.3% THC are legally hemp and therefore not subject to federal control.
The US Drug Enforcement Administration has issued a legal interpretation that acknowledges that cannabis seeds, tissue culture samples and other genetic material with less than 0.3% THC are legal hemp products not subject to federal prohibitions on marijuana. The DEA cannabis seeds decision was revealed its decision in a letter to Shane Pennington, an attorney focusing on cannabis law and litigation with the legal firm Vicente Sederberg LLP.
The 2018 Farm Bill legalized hemp, which was defined as any part of the cannabis plant, including the seeds, with a delta-9-tetrahydrocannabinol (the most commonly known form of THC) concentration of not more than 0.3% on a dry weight basis. In November 2021, Pennington sent a letter to the DEA seeking a determination whether cannabis seeds, clones and other genetic material with no more than 0.3% THC are subject to federal control. This April, he received a reply from the agency, which he shared in his Substack column “On Drugs”on April 4.
In a January letter to Pennington, Terrence L. Boos, the chief of the Drug & Chemical Evaluation Section of the DEA, wrote that “marijuana seed that has a delta-9-tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis meets the definition of ‘hemp’ and thus is not controlled under the CSA. Conversely, marijuana seed having a delta-9 tetrahydrocannabinol concentration of more than 0.3% on a dry weight basis is controlled in schedule I under the CSA as marijuana.”
Source Rule Questioned
The decision calls into question the veracity of the so-called source rule, a legal theory that holds the legality of cannabis material is dependent on the source from which it was derived—federally illegal marijuana or legal hemp. Under the theory, any seeds, clones or other plant material sourced from cannabis with less than 0.3% THC (i.e., hemp) is legal to possess, process and sell.
“In my view, the letter is significant because we continue to see confusion over the source rule—the argument that the legal status of a cannabis product hinges on whether it’s ‘sourced’ from marijuana or hemp—influencing legislative proposals even at the federal level,” Pennington told Marijuana Moment.
In addition to seeds, the letter from the DEA also acknowledges that “other material that’s derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a delta-9-tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis meets the definition of “hemp” and thus isn’t controlled under the CSA.”
Pennington says he is hopeful this will clear up a lot of confusion in this area of the law.
“Now that we know that the legality of the ultimate ‘source’ of both hemp and marijuana plants (their seeds) hinges on delta-9 THC concentration alone, reliance on the source rule is much harder to defend,” he said.
DEA Decision Doesn’t Change Law
In an email, Pennington noted that the DEA’s decision doesn’t change the law. Instead, the letter reveals how the DEA is interpreting existing law, namely the Controlled Substances Act. Pennington wrote that the “DEA’s view of the control status of various substances under the federal Controlled Substances Act is authoritative, and many people assumed DEA’s authoritative view was more restrictive.”
“Now that people know that DEA agrees that seeds, tissue cultures and any other genetic material with not more than .03% delta-9 THC by dry weight isn’t subject to control under the Controlled Substances Act, it feels to them like the law has changed,” he continued in an email to Cannabis Now. “In fact, though, this letter simply revealed what DEA very likely thought all along.”
But the attorney also noted that the decision is limited in scope and doesn’t mean that cannabis companies will be permitted to freely send their genetics across state lines. The DEA only found that cannabis seeds, clones and genetic material with less than 0.3% THC aren’t subject to control under the Controlled Substances Act and “there are many other state and federal laws and regulations that may apply to any proposed interstate shipment of cultivars.”
The DEA cannabis seeds decision is another example of the reach of the legalization of hemp in the 2018 Farm Bill. Last year, the DEA clarified to state regulators that delta-8 THC, an intoxicating cannabinoid that can be processed from hemp, is also not under the control of the Controlled Substances Act.
Matthew J. Strait, Senior Policy Advisor, Diversion Control Division-DEA; Before the House Energy and Commerce Committee-Subcommittee on Health, for a Hearing Entitled: Cannabis Policy-For the New Decade
What You Should Know About Marijuana Concentrates
Marijuana Concentrates—also known as “THC Extractions” (2014) is a six panel, two-sided pamphlet that provides information on the dangers of marijuana concentrates. The pamphlet also describes the common street names, how it is abused, and the dangers of converting marijuana into marijuana concentrates using the butane extraction process.
Drug Slang Code Words
This Drug Enforcement Administration (DEA) Intelligence Report contains information from a variety of law enforcement and open sources. It is designed as a ready reference for law enforcement personnel who are confronted by many of the hundreds of slang terms used to identify a wide variety of controlled substances, designer.
Mind-altering psychoactive drug. Dry, shredded, green/brown mix of flowers, stems, seeds and leaves from the cannabis sativa plant. THC (delta-9-tetrahydrocannabinol) is the main ingredient that produces the psychoactive effect. Addictive.
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.”