DEA Confirms that Cannabis Seeds, Tissue Culture, and Other Genetic Material Are Not Necessarily Controlled under the CSA

by Omar Figueroa

December 21, 2022

 

 

The Drug Enforcement Administration (DEA) has confirmed that any seed, tissue culture, or other genetic material is not controlled under the Controlled Substances Act (CSA) as long as it has less than 0.3% of delta-9-THC.

Specifically, on December 20, 2022, the DEA issued a formal response to an inquiry from the Law Offices of Omar Figueroa regarding the control status of cannabis seeds, tissue culture, and genetic material.  The DEA made clear that “any seed, tissue culture, or other genetic material that has a delta-9-tetrahydrocannabinol concentration of no more than 0.3 percent on a dry weight basis meets the definition of ‘hemp’ and is not controlled under the CSA.”  Conversely, such material “having a delta-9-tetrahydrocannabinol concentration more than 0.3 percent on a dry weight basis is controlled in schedule I under the CSA as marihuana.”

The DEA letter is below and can be downloaded here.

22-8286 Law Office Figueroa seeds and genetic material 10052022 signed

 

Significantly, the letter elaborates upon the control status of the plant material after seed germination:

If the Cannabis sativa L. seed germinates into material that contains delta-9-tetrahydrocannabinol in concentrations of not more than 0.3 percent on a dry weight basis, the material meets the definition of “hemp.” Conversely, if the seed germinates into material having a delta-9- tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis, that material does fall within the CSA schedule I listing of marihuana.

Notably, a copy of this official determination was sent to the San Francisco Division of the DEA, which covers Northern California.  Therefore, DEA personnel in the broad geographical area that comprises the  San Francisco Division ought to be on notice about this official determination.

 

 

This letter is substantially similar to a letter sent by the DEA almost a year ago to New York attorney Shane Pennington, which does not mention germination. That DEA letter is below and can be downloaded here.

 

21-7692-shane-pennington-cannabis-seeds-tissue-genetic-material-11-18-21-signed-1

The DEA letter sent to Mr. Pennington is the “proof” in a piece by Mr. Pennington entitled The Source Rule is Dead: Proof that marijuana seeds, tissue cultures, and genetic material aren’t controlled substances.

 

The lesson here? 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. If the substance exceeds the .3% threshold (and isn’t a mature stalk, fiber, etc.), it’s schedule I marijuana. Otherwise, it’s hemp and not a controlled substance.

Under that rubric, marijuana seeds, tissue cultures, and genetic materials are hemp because (according to the experts) those materials invariably contain not more than .3% delta-9 THC on a dry weight basis.

 

(Emphasis added).

Mr. Pennington’s efforts were covered in a Marijuana Moment article entitled DEA Says Marijuana Seeds Are Considered Legal Hemp As Long As They Don’t Exceed THC Limit:

The last point, that “it continues to be federally illegal to use any cannabis seeds with the intent of growing still-prohibited marijuana” was subsequently elaborated upon in a piece entitled DEA Seed Letter – Triumph or Trap? by Kight on Cannabis.  Mr. Kight’s discussion identified two potential traps given the current landscape of federal cannabis prohibition.

Let me start by saying that simply selling cannabis seeds to the general public without any specific marketing about them, aside from the fact that they are “cannabis” or “hemp” seeds, and without any discussion of how they can or should be used, appears to be a low-risk activity given the DEA’s current stance. Taken in a vacuum, this is best viewed as a small but important triumph for the entire cannabis industry. It wasn’t very long ago that US Customs seized a shipment of hemp seeds from Italy en route to the Kentucky Department of Agriculture, which ultimately required the state to sue the DEA for their release. Prior to that, there is a history of cases filed against the DEA by the Hemp Industries Association (HIA) regarding the legal status of hemp seeds. […]

In any event, and despite my disagreement with the DEA’s analysis, this article is about identifying and avoiding “traps” that could arise in light of the DEA’s position. For argument’s sake, the rest of this article assumes that the DEA is right, or at least that its position represents the current state of the law regarding the matters it addresses. With that in mind, I want to discuss two potential legal problems I see. The first is selling cannabis seeds in conjunction with marketing and otherwise making claims about their genetic characteristics. The second is selling cannabis clones.

TRAP 1- MARKETING CANNABIS SEEDS BY DISCUSSING THEIR MARIJUANA GENETICS

Cultivating or manufacturing a schedule 1 drug is a federal crime. As discussed in this FindLaw blog, “[d]rug “manufacturing,” in a criminal law setting, occurs when an individual is involved in any step of the illicit drug production process. Those who sell certain precursor chemicals, specialized equipment, or simply offer to help produce drugs also may be charged with the crime.” Possessing or selling cannabis seeds may be fine in the abstract; however, marketing and selling seeds to grow marijuana likely implicates you in a crime.

Let’s dig a little deeper into this issue. I did a quick Google search of “buy cannabis seeds” and got about 195,000 results. I randomly clicked on one of the top results and found an online retailer of cannabis seeds. Under the heading “High THC Seeds” the site states: “[with] the growing aid of technology, breeders have been able to identify ways to increase THC content in plants via cross-breeding.” The website goes on to discuss some new seed offerings: “[Redacted] is a new addition to the family and is a selection of strains bred with the highest THC content possible…. If you’re looking to collect cannabis seeds with high THC levels then we’ve made it easy for you to sort and select below.” The site offers a number of cannabis seed varieties, along with various descriptions. Here’s one I chose at random: “[This seed’s] THC content reaches 25% with less than 1% CBD.” Marketing cannabis seeds in this manner is highly risky behavior.

Let’s say this particular seed seller, or any one of its competitors (there are lots and lots of them), sells a package of this particular cannabis seed to someone who likes the description and wants to grow cannabis with THC concentrations “up to 25% with less than 1% CBD”. Then let’s assume that this buyer grows marijuana and is busted by the Feds. The Feds seize everything. They discover that the seed from which the illegal marijuana crop was grown was sold by an online seed bank and that the seed involved was specifically advertised to grow high THC marijuana. The Feds charge the seed seller with the federal crime of conspiring to manufacture a schedule 1 drug. Will the DEA’s Seed Letter operate as a “get out of jail free card”? Probably not.

The seller’s intention, its mens rea, is to sell cannabis seeds to someone who will likely use them to grow high THC marijuana, which is the whole point of advertising “high THC” seeds. In other words, the cannabis seed seller in this example is one link in the manufacturing chain and could be charged with conspiring with the buyer to produce an illegal drug. The fact that the word “collectible” is sprinkled throughout the website is unlikely to make a difference since the prosecutor and the court will look to the totality of the circumstances and will almost certainly view the use of the term “collectible” in conjunction with all of the other marketing language about “growing” and “breeding” high THC cannabis. At a minimum, this is a criminal prosecution waiting to happen.

So, yes, generically selling “cannabis seeds” may be fine. But selling and marketing them based on genetics that produce high THC marijuana plants is probably not. The rub is that this is where all of the commercial activity is happening. No one wants to spend money on a generic cannabis seed. The real money is in selling good genetics, which must be advertised. And that advertisement – that marketing of “high THC” cannabis seeds – is what could land you in jail, regardless of the DEA Seed Letter.

TRAP 2- SELLING CANNABIS CLONES WITHOUT A HEMP LICENSE

Since publication of the DEA Seed Letter, I’ve been asked about selling cannabis clones. This is not a new issue. I’ve discussed it with many clients in the past. Unfortunately, you should not sell cannabis clones if you do not have a license to grow hemp. First of all, the DEA Seed Letter makes no mention of “clones”. In addition to “cannabis seeds”, it specifically references “tissue culture or any other genetic material that is derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a D9-THC 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.” Clones are not included.

Clones do not have D9-THC concentrations in excess of 0.3%, so selling them should also be lawful, right? Wrong. Under federal law, the only people allowed to grow cannabis are licensed hemp growers and a select few who have received DEA licenses to grow marijuana. Unfortunately, no one else is allowed to grow cannabis. Owning a clone is “growing” cannabis. If you have a hemp license, then you can sell your cannabis clones, but for similar reasons as discussed in “Trap 1”, you should only sell cannabis clones to other people or businesses with hemp production licenses in order to eliminate the possibility of being charged as a co-conspirator in a marijuana bust. Additionally, if you sell a marijuana clone to a hemp grower, then the grower will fail its pre-harvest test and will be very unhappy. If you sell the licensed grower a hemp clone, then all is well. Either way, selling marijuana clones, by which I mean a cannabis plant that will eventually produce high levels of THC, is illegal under federal law and is not sanctioned by the DEA Seed Letter.

I don’t like being the bearer of bad news, nor do I enjoy putting a damper on the party. In fact, I think the DEA’s position is laudable, if only because it appears to be favorable to the cannabis industry, regardless of whether its position is legally supported. That being said, I worry that the enthusiasm generated by the letter will lead some into trouble they do not anticipate, particularly for those who view the DEA Seed Letter as a DEA-sanctioned pass to grow and sell marijuana. Ultimately, the resolution to this whole issue is to remove marijuana from the CSA altogether. Until then, we will have to take our triumphs where we can get them while being aware that this particular triumph in cannabis could belie a trap.

 

While the above discussion is focused on potential federal prosecution, there are also state prohibitions.  For example, the State of California forbids commercial cannabis activities without both a local permit and a state license, and the DEA letter would not be a defense to a state criminal action.  Similarly, in a state criminal case alleging conspiracy to manufacture marijuana where seed company personnel provided detailed growing instructions to seed purchasers located in, say Alabama, the DEA letter would be of little help.

A federal example would be a federal criminal case alleging aiding and abetting the illegal manufacture of marijuana where seed company employees provided detailed growing instructions to an undercover DEA special agent posing as a wholesale seed buyer who “confided” the seeds were intended for guerilla grows on public lands.

Thus, while the latest DEA letter confirms that the DEA’s favorable interpretation remains its official position, which is good news overall, it is not a get-out-of-jail-free card and many pitfalls remain.

 

This information is provided as a public educational service and is not intended as legal advice. For specific legal questions regarding cannabis seeds, tissue culture, and other genetic material, please contact the Law Offices of Omar Figueroa at 707-829-0215 or info@omarfigueroa.com to schedule a confidential consultation.