Marijuana Seeds in Gray Area With the Feds, but Not in Colorado

Marijuana seeds are sorta-kinda legal now, according to the federal Drug Enforcement Administration, but Colorado's licensed pot businesses have been warned to stay away from doing business outside of the state's framework.

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 — the federal line that differentiates the two. Earlier this year, the DEA confirmed that marijuana seeds, clones and other parts of the cannabis plant with under 0.3 percent THC are now considered hemp products, legal under 2018’s Farm Bill, which ended federal hemp prohibition.

Since then, some marijuana breeders have interpreted the DEA's confirmation as a green light to ship marijuana seeds or clones (immature marijuana plants that haven't yet bloomed) across the country. However, a June 28 memo from the state Marijuana Enforcement Division warned Colorado business owners that buying or selling seeds outside of the state's seed-to-sale tracking system could still be considered illegal.

"Regulated marijuana businesses are only permitted to transfer marijuana seeds, immature marijuana plants, marijuana or marijuana products to other regulated marijuana businesses," the MED announcement reads. "Licensees transferring marijuana seeds, immature marijuana plants, marijuana, or marijuana products in conflict with the marijuana code or the Colorado marijuana rules could be subjecting their licenses to administrative actions including but not limited to fines, suspension, or revocation."

While legal experts have recently warned marijuana businesses against shipping or buying seeds across state lines, licensed marijuana breeders were already too invested in staying compliant to ship products outside of the regulated system, according to John Paul, founded of Colorado seed and clone supplier Klone. But non-licensed businesses are not as cautious, he adds.

"If you look on social media, like Instagram, there are a lot more of these quasi-, non-licensed clone providers popping up. They're playing in that gray area of selling and shipping what they are calling hemp clones across the country. Now, what the clone ends up being after the person receives and grows it is sort of the gray area they work in," he said in a May interview. "I don't see it as competition for our business, because we have to operate within METRC [Colorado's seed-to-sale tracking system for retail cannabis]. So we're not targeting the same audience. All of our clients need to stay compliant within the Colorado regulations."

In its June 28 memo, the MED notes that evolving federal cannabis policy is likely to create more potential conflicts or legal questions, and says it will "continue to monitor statewide and federal initiatives with this in mind."