Last month marked the start of the typical marijuana grow season, which runs March through November, which meant individuals and large cannabis firms in — April 21, 2019 In response to an attorney inquiry, the DEA recently confirmed that seeds and other parts of the cannabis plant with less than 0.3 percent THC (the federal limit separating hemp and marijuana) have been legal since 2018’s Farm Bill ended federal hemp prohibition. Michael Moss wants to help other patients with his mail-order cannabis seed business. He says a legal loophole allows it.
Legal Issues in Selling Cannabis Seeds in California
Last month marked the start of the typical marijuana grow season, which runs March through November, which meant individuals and large cannabis firms in California were on the hunt for high-quality seeds for purchase on the legal market. Cannabis seeds are at the core of the California marijuana industry, and the internet can connect farmers from San Diego to San Francisco and beyond to the growing demand.
But are sales of cannabis seeds legal? Some growers serve both the grey and legal market marijuana seeds.
As the legal cannabis market has expanded, selling cannabis seeds has become more commonplace, especially as consumers’ tastes become more refined. Still not all cannabis seed sales are lawful.
Genetic Seed Variations Can Be Protected Intellectual Property
Los Angeles marijuana lawyers recognize there is great diversity in seed genetics, and advise companies to seek counsel before arranging any kind of retail sale or transport.
Many marijuana growers pride themselves on their extensive knowledge of marijuana growth, which obviously begins with the seed. The three basic types of cannabis seeds are regular, autoflowering and female, with each containing broad subtypes, often referred to as “strains.” Many cannabis cultivators pride themselves on various elements of the strains they grow, as the effects can vary widely depending on seed properties. Certain strains are better for those seeking medicinal relief, while others are better for creating various degrees of intoxication and still others for a distinct taste. Growers are increasingly asserting intellectual property rights, something all cultivators should discuss with their cannabis business attorney.
Cannabis Seed Sales and California Law
Laws pertaining to sales of marijuana seeds or associated products vary a great deal in the U.S. and beyond, in part because there is a general lack of understanding on how they should be defined. Some consider seed sales ancillary to the cannabis market, but the reality is because these are part of the cannabis plant (or rather, its origins) these too are controlled.
Generally speaking, cannabis seeds can be lawfully purchased by adults states with legal adult recreational use (like California) either at a dispensary or online intrastate (meaning not purchased from another state – even one that has also legalized the drug). The reason for this restriction is that interstate sales fall under the purview of federal law, which still considers marijuana a dangerous narcotic.
Los Angeles marijuana dispensaries routinely sell pot seeds over-the-counter, and cost is roughly $12 for a pack of 10, though higher-end strains can run several hundred dollars. Dispensary options are limited compared to what one might find online at a California cannabis seed bank.
The California Cannabis Control Board in accordance with Prop. 64 caps the maximum number of cannabis plants that can be grown by an individual at any given time at six. That assumes you’re over 21 and aren’t doing so in a community that has a local ordinance banning or further restricting such cultivation.
Those selling cannabis seeds in California, either in-store or online, need to be certain procedures are in place to prevent sales to restricted buyers (mostly minors).
Buying, selling or transporting those seeds out-of-state though is where things can get dicey.
International Weed Seed Sales
Internationally, many countries don’t restrict or regulate cannabis seed sales, as the seeds have a myriad of benign uses. These can include production of clothing material, oils and food for animals/fishing bait.
However, other countries are much more strict about what can be imported and for what purpose. Los Angeles cannabis lawyers strongly advise anyone conducting international sales of any cannabis product to consult with an attorney. Failure to do so could affect your pocketbook (if customs in another country refuses to allow your shipment to reach its final destination). However, it can also draw the attention of U.S. law enforcement agents, with the possibility of criminal charges.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.
Ask a Stoner: Buying Weed Seeds Is Legal Now?
Dear Stoner: I read a headline that the DEA had just now legalized weed seeds, but I’ve been ordering them to my house in the Springs for almost a decade. Have I been breaking federal drug laws this whole time?
Dear Mike: Short answer: Yes. But you can breath easy now, thanks to hemp.
I technically break federal drug laws almost every day after work and pretty much every weekend. We all do if we smoke, grow or possess cannabis, even in states that have legalized the plant. Federal pot laws had prohibited seeds, too, but prosecuting online seed banks in legal states or other countries was low on the Drug Enforcement Administration’s to-do list. Now that hemp is legal at the federal level, that federal priority has been crossed off entirely.
In response to an attorney inquiry, the DEA recently confirmed that seeds and other parts of the cannabis plant with less than 0.3 percent THC (the federal limit separating hemp and marijuana) have been legal since 2018’s Farm Bill ended federal hemp prohibition. Hemp and marijuana are the same plant with different THC amounts in their blooming flowers, but neither hemp nor marijuana seeds exceed the 0.3 percent THC limit, so there’s virtually no legal difference in them at such an early stage. The DEA also confirmed that it would have nailed you had you been caught before hemp was legalized and that the resulting plants from said seeds are still quite illegal, so count your blessings.
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Pipe Dream? Arizona Man Believes Legal Loophole Lets Him Sell Pot Seeds
Michael Moss was a welder until degenerative disc disease forced him into an early retirement. In 2011, he moved to Arizona for the climate, landing in the small Navajo County city of Show Low.
What followed was a series of surgeries that sandwiched the broken vertebrae in the middle of his spine between 24 screws in his neck and six lag bolts in his lower back.
When the heavy, opioid-based painkillers doctors prescribed him left him emaciated and like a “zombie,” he turned to medical marijuana. But the high-potency medicine he needed cost as much as $400 a week. That was unaffordable on disability pay, so he started growing his own.
After a bad experience buying seeds, Moss decided to start selling them himself to offer a better alternative. These days, the 48-year-old entrepreneur is bringing in an estimated $1,000 a month by selling seeds openly on the internet.
“I’m just trying to help people. No one was there to help me,” Moss told Phoenix New Times.
The business is not illegal because the seeds are marketed as “souvenirs,” he said, according to advice he received from an attorney with a prepaid legal service.
However, postal authorities say there is no such loophole, and that Moss could face serious repercussions.
Moss is one of the few U.S.-based cannabis seed vendors and offers what he said is the largest seed collection in Arizona. He has 100 different strains he sells through his website and hopes to have added an additional 100 by next year. Among the payment options accepted: Venmo, Facebook Pay, a Walmart wire transfer and mailed checks. Most of his earnings go back into the business, he said.
While a growing number of states, including Arizona, have legalized recreational or medical marijuana, transporting marijuana products across state borders is a federal offense. Members of Arizona’s cannabis industry joke that the seeds to start state-approved grow ops blew across the border from California in the wind.
Moss openly admits to mailing seeds across state borders. He buys seeds from growers in Washington, California, Oklahoma, and Michigan. People in Oklahoma made up his biggest customer base for a while. While there are “seed banks” in Europe, purchasers carry the risk of having their seeds intercepted by customs officials if not properly disguised. Seeds shipped within the United States don’t have that problem.
After consulting with lawyers at LegalShield, a prepaid legal insurance service, Moss said he believes what he is doing is legal as long as the seeds are sold as souvenirs or collectors items to people over the age of 21. His website and pop-up stores carry disclaimers saying as much.
“Once they leave me, it’s up to [buyers] to abide by their state laws,” Moss said, acknowledging that he will help offer general advice about cultivating cannabis to anyone who calls.
Not only is Moss operating in the open, but his Venmo feed is public, showing the names of purchasers and their order numbers. Discretion isn’t in the business plan: He used some of his savings to get a car decorated with weed decals and the name of his business, MossMSeeds. Soon, he’s going to add neon lighting to the ride and a smoke machine. He gave an interview to the White Mountain Independent for an article about his business last month, and Moss comes to the Valley on weekends for events and podcast interviews.
“I’m a handicapped, disabled guy trying to keep myself well and it’s just a plant,” he said. “The wheelchair is coming. That’s why I’m trying to make a mark.”
Plant or not, federal authorities don’t take kindly to distributing pot seeds in the mail.
Liz Davis, a spokesperson for the Phoenix division of the U.S. Postal Inspection Service, said that while marijuana is legal in some states, it’s federally illegal under the Controlled Substances Act and cannabis seeds are therefore illegal to mail. The inspection service aggressively pursues people who traffic in all forms of illegal narcotics, she said.
“Honestly, as Postal Inspectors, we don’t really care what someone purports to be selling. If it is illegal to mail, it is illegal to mail,” Davis wrote in an email. “Our mission as inspectors is to ensure the mail is safe for our employees and our customers. Whether stated as a souvenir or having an agricultural purpose, it is still a controlled substance and therefore nonmailable. USPS Letter Carriers have been killed delivering parcels containing controlled substances. If it is a nonmailable item, we do not want it in the mail.”
Davis added that if New Times shared Moss’ name and contact information, they would investigate further. New Times declined her offer. But Moss isn’t hiding.
Phoenix cannabis attorney Tom Dean said Moss is facing serious legal jeopardy.
“My advice to him is not to do it,” said Dean, a former legal director for the National Organization for the Reform of Marijuana Laws (NORML) who has practiced cannabis law for over 20 years. Even if someone has a “clever” defense, most don’t get a chance to use it because that would require going to trial and facing mandatory prison time if it doesn’t work. Instead, they take a plea deal. In this case, “there’s no grey area,” Dean said.
When New Times asked Moss about what Dean said, he cited a different website selling seeds that claims marijuana seeds are legal in Arizona since they don’t contain THC or CBD. He also pointed out that he had obtained a license from the state to sell agricultural seeds at his lawyer’s advice.
That’s no good, according to Dean. For one, un-sterilized seeds are explicitly considered marijuana for the purposes of Arizona and federal law, meaning that selling them within Arizona requires a license. Even if selling seeds was legal in Arizona, transporting them between states and in the mail is a federal offense.
“The seed dealer’s license doesn’t mean he can sell illegal drugs,” Dean said.
It’s unclear how much emphasis federal or state authorities may put on cracking down on people like Moss, Dean said. But based on how they’ve handled medical marijuana, local law enforcement may face pressure from the cannabis industry to crack down on unlicensed growers and avoid a free-for-all. People who buy from Moss are unlikely to face prosecution, but it’s not out of the question.
“Good intentions are not a defense. Being mistaken is not a defense. And law enforcement could care less about that kind of thing,” he said.
While Moss is small-time compared to some other online seed vendors, the federal government has cracked down hard on similar businesses in the past.
In 2005, Western District of Washington U.S. Attorney Jenny Durkan, now mayor of Seattle, had the head of the British Columbia Marijuana Party extradited to the United States on charges of selling marijuana seeds to Americans through the mail. Marc Emery claimed to be making $3 million a year from the sales and was eventually sentenced to five years in prison.
David Williams, the general counsel for the law firm Davis Miles McGuire Gardner, PLLC, which provided Moss his advice through LegalShield, said he could not comment or acknowledge whether Moss was a client of the firm due to attorney-client confidentially. In an email sent to Moss, and shared with New Times, he said they provided him limited advice but do not comment on their work to the media.
Despite Dean’s warning, Moss said on Wednesday he plans to continue his business based on the advice he says he got from the LegalShield attorney and what he’s read online.
“It is kind of concerning, but at the same time I’m going to keep doing what I got to do,” he said. “If they want to pick on a disabled guy over a plant … I’m a disabled guy who doesn’t want to be on pain meds and this is what helps me.”
“I bet he never Googled it,” he added of Dean.
In an interview the next day, Moss told New Times he had Googled local cannabis attorneys, calling as many as he could. He spoke to one on Thursday morning who told him he was at some risk but that the lawyer’s “gut feeling” was that authorities wouldn’t come after him. That made Moss feel better. At the attorney’s recommendation, he’s going to start including the disclaimer from his website in each package.
“I feel a lot safer at this point,” Moss said.
KEEP PHOENIX NEW TIMES FREE. Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we’d like to keep it that way. With local media under siege, it’s more important than ever for us to rally support behind funding our local journalism. You can help by participating in our “I Support” program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.