Can You Ship Weed Seeds In The Mail

Earlier this month, the Drug Enforcement Agency (DEA) acknowledged that cannabis seeds are in fact legal products under provisions of the 2018 Farm Bill as Cali bud could end up on the East Coast easier than you think, according to a new official determination from the DEA. Many cannabis business owners wonder how to legally purchase cannabis seeds in the U.S. and beyond. Find your answers here at FindLaw.

Experts Warn Against Mailing Cannabis In Light of Recent DEA Ruling

While a recent DEA letter appeared to suggest that cannabis material containing less than 0.3% THC is federally legal under the 2018 Farm Bill, legal experts still caution against sending seeds, clones, and other byproducts by mail.

Full story after the jump.

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Earlier this month, the Drug Enforcement Agency (DEA) acknowledged that cannabis seeds are in fact legal products under provisions of the 2018 Farm Bill as long as they contain less than the 0.3% THC legal threshold qualifying them as hemp. The attorney who sent the letter that sparked the review, Shane Pennington, who serves as counsel in Vicente Sederberg’s New York office, cautioned though that not much will change for the industry in the short term just because of the DEA’s letter.

“To everybody out there who is saying, ‘This is one simple trick to mail marijuana,’ please, please hear me – it is not. This is not what this is. Before you do anything consult your attorney – I would say consult your attorney and read the letter, because if the letter doesn’t say ‘You can mail it,’ I would not assume you can. I just want to be very clear about that.” – Pennington to Ganjapreneur

Pennington, who tries cannabis cases in federal court, sent the letter because it was obvious to him that the “governing principle” under the Farm Bill for distinguishing legal hemp from illegal cannabis under federal law was the 0.3% THC threshold, rather than the so-called “source rule” which dictates that anything derived from an illegal source, regardless of THC content, is illegal.

Under the source rule, seeds and clones sourced from outlawed cannabis are also considered controlled substances under federal law despite THC concentrations falling below the 0.3% threshold outlined in the Farm Bill.

Pennington said that many people in the cannabis industry argued that the source rule was the lay of the land and that the Farm Bill had no effect on the legal status of seeds and clones that could grow into THC-rich plants, prompting Pennington to ask the DEA for an official determination on the status of cannabis seeds.

“Of course, the DEA has been wrong about plenty of stuff,” Pennington said, “I sue them all the time. Nonetheless, they do speak with authority on the law and if I could get an official determination I could at least tell these people, ‘Look, we don’t have to argue anymore.’”

In the letter to Pennington, DEA Chief of the Drug & Chemical Evaluation Section Terrence L. Boos, concludes that “marihuana 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 Controlled Substances Act – and not just seed, but “tissue culture and any other genetic material” containing less than 0.3% THC.

But, Pennington said, that letter didn’t end all arguments, which he said have evolved into claims that cannabis seeds, clones, and basically anything with less than 0.3% THC could now be mailed, brought across state lines, and shared between states that have legalized cannabis.

Nat Pennington, the founder and CEO of Humboldt Seed Company (and not related to Shane), pointed out that California’s adult-use law is very clear that seeds cannot be transferred in or out of the state regardless of current federal policies. Nat points out that in newly legal states there is often a baked-in “immaculate conception clause” which allows companies and cultivators to start growing for the program but turns a blind eye to exactly where that first batch of seed is sourced from. The DEA letter, in Nat’s view, takes some of the risk out of that first legal grow because the companies are definitely not violating the source rule by simply possessing the seeds, clones, or tissue culture as long as they don’t exceed federal THC limits for controlled substances.

While California’s rules on seeds are very strict, the rules in Oklahoma, another state where Humboldt Seed Company operates, are not.

“You don’t have to prove that they came from within the state’s system,” Nat said in an interview with Ganjapreneur. “And they also don’t keep track or want to regulate what happens to the seeds that are created within the system – they’re treated just like tomato seeds or anything else.”

Oklahoma does require all seeds in the state to be tested for invasive plants and germination rates, Nat said.

“As long as states don’t have a closed loop like California, there is more potential for seed sharing,” he said.

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According to Nat, the big deal in the DEA’s response is that it likely opens the window for research and intellectual property and the ability to “follow normal seed laws.”

“There’s an opportunity to really have the states look at it differently – the industry could really benefit a lot from, for example, being able to bring cannabis seeds onto campus for genomic analysis. It’s silly to not be able to utilize that.” – Nat Pennington to Ganjapreneur

While many colleges and universities are offering cannabis-related certificates and degree programs, none of them have offerings that touch the plant (including seeds) because they receive federal funding.

In 2019, the U.S. Postal Service (USPS) did release the following guidance about mailing hemp as defined under the farm bill:

“Hemp and hemp-based products, including cannabidiol (CBD) with the tetrahydrocannabinol (THC) concentration of such hemp (or its derivatives) not exceeding a 0.3 percent limit are permitted to be mailed only when:

  1. The mailer complies with all applicable federal, state, and local laws (such as the Agricultural Act of 2014 and the Agricultural Improvement Act of 2018) pertaining to hemp production, processing, distribution, and sales; and
  2. The mailer retains records establishing compliance with such laws, including laboratory test results, licenses, or compliance reports, for no less than 2 years after the date of mailing.”

Shane said that the issue of whether cannabis seeds could be mailed likely needs clarification by USPS officials in light of the DEA letter.

“All that this letter says is what DEA thinks the [CSA] means at the time that they wrote that letter with respect to these particular substances,” he explained. “It’s not saying it’s legal to mail stuff under federal law or state law – it’s not saying anything about state law. … This letter doesn’t change California law on this stuff. It doesn’t change was USPS thinks are verboten cannabis products.”

The letter, Shane said, doesn’t legalize interstate commerce of clones, doesn’t change any rules on marketing or advertising, or the positions of any other federal agency.

The real significance, Shane said, is that it offers some clarification for “third-party regulators” such as the Food and Drug Administration (FDA), state regulators, law enforcement agencies, because they “take their cues” from the DEA on controlled substances policy.

“If you read opinions from state courts about trying to draw lines under state law on hemp and marijuana, they will cite DEA regs and DEA guidance,” he said. “The point is that, while it’s not immediate, over time as these regulators and lawmakers realize that DEA’s views are more flexible than they realized, it is entirely reasonable to expect that they will loosen up some of their standards as well.”

Shane explained that what will really determine how quickly and dramatically those standards change is how quickly people use the letter to lobby state lawmakers, regulators, and other agencies.

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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.

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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.

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“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.

How to Legally Purchase Cannabis Seeds in the United States

Thinking about starting your own cannabusiness? You are not alone. From CBD to medical marijuana to edibles, legal cannabis has become one of the fastest-growing industries in the United States, with few signs of slowing down any time soon.

If your business will include cannabis growing or cultivation, then you are probably wondering how to get your hands on weed seeds. legally. Before taking that step, though, make sure your business has the necessary license to operate legally in your state.

First and Foremost: Know Your State Laws

State law governs if and how you can operate your cannabis growing business, and each state takes a slightly different approach. Your state may offer a large number of permits with few prerequisites, a small number of permits with an extensive application process, or something in between.

Here are a couple of other factors to keep in mind about the legality of cannabis seeds:

  • State law treats growing marijuana for selling purposes differently from growing marijuana for personal use. Your state may allow you to grow a limited number of cannabis plants for personal use without a license. For example, Colorado residents over age 21 can grow up to six plants, with as many as three plants flowering at one time.
  • Cannabis seeds can often be purchased legally for uses other than growing marijuana such as fishing bait, bird food, and preservation. The government recognizes that cannabis seeds have other uses beyond just growing more marijuana.

In addition to studying your state’s regulations, you should also join local cannabusiness groups and meet with a local cannabis business attorney for assistance. There is no such thing as going into the marijuana business too prepared. Once you are ready to take the step of legally buying cannabis seeds, you have a few options to choose from.

It’s Best to Shop Local, but Buying Online Is an Option

If you live in a state that permits the sale of marijuana seeds, your best bet is to shop locally for high-quality seeds. This means visiting a dispensary, local farmers market, or seed company in your state to make your purchase. There, you can get the in-person help you need to make your purchase legally.

It is also an option to buy cannabis seeds online from an online seed bank and then have the seeds shipped to you, so long as you are abiding by state law. The risk here is that your package could still be confiscated. While it is unlikely that you would face criminal charges, there is no guarantee because of the way federal law treats marijuana products.

Can I Buy Cannabis Seeds in Other States or Countries?

You shouldn’t have any trouble buying cannabis seeds in another state or country if it’s legal there. It’s bringing the seeds back to your home state that can get you into trouble.

In the United States, cannabis seeds cannot cross state lines because marijuana products are still illegal under federal law. Though rare, transporting the products across state lines could result in federal criminal charges. This is true even if you are purchasing cannabis seeds in a state that authorizes it and entering a state that also authorizes it.

The same is true for buying cannabis seeds in another country. It may sound like a great idea to buy cannabis seeds while visiting one of the world-renowned marijuana seed banks that exist in places such as the Netherlands or the United Kingdom. But when you re-enter the U.S. with your goods, Customs and Border Protection will seize any seeds they find, even if your plane landed in a state where they are legal. Again, it goes back to marijuana being illegal under federal law.

How Much Do Cannabis Seeds Cost?

How much you will pay for cannabis seeds depends on the strain of marijuana you buy. Typically, a pack of 10 or 12 seeds starts at around $40. You can expect to pay up to $500 for high-end strains. Again, it is important to only buy cannabis seeds from a legal and reputable seed bank or dispensary — and only if you know you are abiding by state law.

Legal Help for Cannabusiness Entrepreneurs

Cannabis law is an ever-evolving tangle of state and federal regulations that often contradict one another. Additionally, the cannabis industry is very new, and still illegal under federal law. For these reasons, it’s important to seek the advice of a business attorney well-versed in cannabis law so that your venture starts out on the right track and you avoid legal problems.