Commentary

Opinion: The Hazy Legal Future of Cannabis Seeds

Hemp and marijuana are the same plant with different THC amounts in their blooming flowers, but neither hemp nor marijuana seeds exceed 0.3 percent THC.
Hemp and marijuana are the same plant with different THC amounts in their blooming flowers, but neither hemp nor marijuana seeds exceed 0.3 percent THC. Flickr/thöR
Much to my surprise, my new startup company specializing in cannabis genetics, Project Blue Book Seeds, was recently notified by GoDaddy Payments Team that our ability to process online payments was suspended indefinitely due to a policy violation. According to its prohibited business policies, seed companies are categorized as drug paraphernalia, which is defined as “any business whose products are primarily intended for aiding the consumption of illegal drugs.”

While we knew these waters would be murky as we set out on this journey, we believed that by doing absolutely everything in our power to demonstrate our desire to be compliant with local, state and federal laws, while being mindful of public health and safety concerns, we would be able to operate in this space without being arbitrarily discriminated against. Not only is the decision to restrict the online sale of our products un-American, it is rooted in misinformation about the legal status of cannabis seeds in our country.

Earlier this year the Drug Enforcement Administration responded to an inquiry concerning the control status of, “Cannabis Sativa L. seeds, tissue culture, and any other genetic material of Cannabis Sativa L. under the Controlled Substances Act (CSA).” In the DEA's response, Dr. Terrence L. Boos of the agency’s Drug & Chemical Evaluation Section opined that any and all parts of the cannabis plant, including stems and seeds, with a THC content below 0.3 percent are now considered hemp products — which were legalized as a result of the passage of the 2018 Farm Bill that ended federal hemp prohibition.

In addition to losing our ability to process online payments, we were notified by Etsy that our products violated its policies,  which broadly define seeds as, “controlled substances and medical drugs,” regardless of the DEA’s memo that clearly states otherwise. Here is what we were told:

“Etsy prohibits the sale of controlled substances and medical drugs, including (but not limited to):

• Marijuana and any products containing THC and/or cannabidiol (CBD)
• Medical cannabis/hemp items and any items presented as such
• Hemp buds, leaves, resin, or unsterilized seeds

But the fight to liberate cannabis seeds in America is not new. In the spring of 2012, just seven months prior to the legalization of adult-use marijuana in Colorado, Robert Hoban of Hoban and Fiola, L.L.C., submitted a Request for Position Statement to the Colorado Marijuana Enforcement Division concerning the sale of seeds from licensed medical marijuana centers. In response, Laura K. Harris, the agency’s director at the time, explained that the MED had no statutory or regulatory authority to prohibit a medical marijuana center (MMC) licensee or medical marijuana center applicant who was authorized to sell medical marijuana, and that they could in fact sell medical marijuana seeds.
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Kevin Mahmalji
Mariah Miranda/mariahmiranda.com

Most recently, the MED sent out an industry-wide memo urging licensed marijuana businesses to comply with the state’s existing framework, which limits the transfer of seeds, clones and other marijuana products exclusively between regulated marijuana businesses — a disappointing blow for seed enthusiasts.

While the future of seed companies remains hazy, it’s obvious that licensed cannabis companies have found a loophole, and they’re more than willing to exploit it. With nineteen states legalizing the sale and use of recreational marijuana, there’s no shortage of massive cultivation facilities popping up in industrial areas in places like Denver, Las Vegas and Oakland. But how?

Considering the varying restrictions on the importation and transport of cannabis seeds, how do all these plants get started? The explanation is steeped in the dogma of the Roman Catholic Church, or immaculate conception. I’m not kidding. Lawmakers, regulators and law enforcement essentially look the other way as licensed cannabis businesses source thousands of seeds from around the globe to establish a newly regulated market.

Kevin Mahmalji is founder of cannabis genetics and seed company Project Blue Book. He is also the former director of outreach and engagement for the National Organization for the Reform of Marijuana Laws (NORML), and founder of political and nonprofit consulting firm Two Rivers Consulting.

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