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.
Cannabis in California – Laws, Use, and History
In 1996, California became the first US state to legalise medicinal cannabis. Now, it’s also legal to use the drug recreationally, though the law only permits up to one ounce of cannabis, or six plants. Unsurprisingly, numbers of users are increasing, and attitudes towards the plant are shifting – though cannabis use is still illegal under federal law.
- Recreational cannabis
- Medicinal cannabis
- Legal since 1996
Cannabis laws in California
The US is governed by federal and state laws. This article covers the cannabis laws in the state of California. For US federal laws, please visit our other article.
Can you possess and use cannabis in California?
It’s legal to possess and use cannabis in California. The Adult Use of Marijuana Act (Prop 64), was approved in 2016, and permits individuals over the age of 21 to possess, privately use, share and give away up to one ounce (29 grams) of cannabis. They’re also allowed to cultivate up to six plants in a private residence.
However, there are restrictions to this law. Cannabis users are not permitted to:
- Consume cannabis or cannabis products in a public place. This incurs a $100 fine. Local governments may allow on-site consumption at state-licenced locations.
- Consume cannabis in a non-smoking area, or within 1,000 feet of a school, youth centre or day care facility, while children are present there. If caught, the offender will receive a $250 fine.
- Consume cannabis (or have an open container of the drug) while operating a vehicle, such as a car, aeroplane or boat. Again, the fine is $250 if the offender is caught. Passengers may consume cannabis in specific commercial vehicles that are licenced for these purposes; however, it’s never acceptable for a passenger to use cannabis in a car, and the same applies for edible products with cannabis in them.
- Make concentrated cannabis with a volatile solvent (state-licenced companies are exempt from this).
As of 2018, anyone aged 21 or over is able to purchase cannabis for personal use at retailers, providing they have an ‘adult use’ licence.
Can you sell cannabis in California?
The Adult Use of Marijuana Act also permits the commercial sale, manufacture and distribution of cannabis. However, anyone selling it in the state must adhere to the laws laid out in commercial cannabis law in the state.
California has the largest cannabis market in the country, with $2.38 billion in revenue through state-licenced dispensaries, up to the end of May, 2021.
It’s also leading the way with innovative selling, with Greenstop launching California’s first cannabis vending machines, throughout selected dispensaries in early 2020.
City and county governments have the right to restrict or even ban cannabis businesses in their area, regardless of California’s overall stance on the matter. In November, 2020, just 161 of the state’s municipalities, and only 24 of its 58 counties permit its sale.
The sale, distribution and testing of cannabis in the state is regulated by the Bureau of Cannabis Control (Department of Consumer Affairs). The Department of Food and Agriculture oversees cultivation, and the Department of Public Health is in charge of all commercial manufacturing of the drug.
Can you grow cannabis in California?
In accordance with the Adult Use of Marijuana Act, individuals living in California can “cultivate, possess, plant, harvest, dry or process not more than six live plants, and possess the produce of the plants”.
All harvested cannabis (and plants) must be kept within the grower’s private residence, or in the boundaries of their property (e.g. a garden). They must be in a locked space, and must not be visible to the public. If these terms are violated, the individual may be given a $250 fine.
Cities and county governments have the right to restrict cultivation for personal use. However, they aren’t permitted to completely ban cannabis cultivation inside a private house, nor can they ban it in a building that’s “fully enclosed and secure”.
This limit doesn’t apply to registered medicinal users, who are technically allowed to grow as much cannabis as they require.
Is CBD legal in California?
CBD is legal in California, both for recreational and medicinal purposes. However, the law doesn’t yet permit the use of CBD in food products. The California Department of Public Health issued a statement in 2018, highlighting that “food products derived from industrial hemp are not covered by MCSB regulations.”
Also, CBD is not permitted to be used in products that make medical claims either, apart from the FDA-approved Epidiolex. As the Supervising Deputy Attorney General notes: “This does not seem to leave much opportunity for general retail sales of CBD-containing products.”
Can cannabis seeds be sent to California?
At present, it’s legal to use cannabis seeds to cultivate plants in California. It is technically permitted to send the seeds within California via the mail, but federal law forbids transporting them across state borders. As such, individuals may encounter issues mailing seeds into California from other locations, and anecdotal reports suggest there are sometimes issues with packages being held by Customs.
Medicinal cannabis in California
California was the first state in the US to legalise the medicinal use of cannabis. It was made legal under the Compassionate Use Act of 1996, which was put in place to “ensure that seriously ill Californians have the right to obtain and use marijuana for medicinal purposes where that medicinal use is deemed appropriate.”
The Act lists specific conditions that would benefit from medicinal cannabis treatment, including: AIDS, cancer, anorexia, chronic pain, glaucoma, arthritis, migraine and spasticity. It also specifically states that cannabis can be used for “any other illness for which [it] provides relief.”
The Medical and Adult-Use Cannabis Regulation and Safety Act created a combined regulatory system for medicinal and recreational cannabis use. It provides an outline for local and state agencies to adhere to, with regards to the cultivation, distribution, manufacturing, dispensing and transportation of the drug.
This Act doesn’t particularly affect patients – the only restriction is that, if they grow cannabis for medicinal purposes at home, they must limit the growing area to 100 square feet. Primary caregivers are permitted to cultivate up to 500 square feet, to provide cannabis for up to five patients.
Industrial hemp in California
After the passing of the Farm Bill in 2018, industrial hemp became a legal crop across the entire country. This means it’s completely legal to cultivate in California.
The California Department of Food and Agriculture is responsible for the regulation of the industry in the state. At the time of writing, it has just finalised the rules regarding the cultivation of hemp, and the registration process for growers. In order to legally grow hemp, farmers must first register via their local County Agricultural Commission Office. There is a farming fee of around $900 per year.
The hemp industry is already thriving in California. It’s not surprising, given the state’s climate. The warmer temperatures mean that hemp thrives there, unlike many other colder regions of the country.
Good to know
If you are travelling to California (or currently live there), you may be interested to know the following:
- Ironically, after cannabis was first made legal for recreational use in California, sales of the drug fell, rather than increased.
- One of the fastest growing demographics of cannabis users in 2018 were the ‘baby boomer’ generation – those aged 50 or above. Numbers of female users have also showed signs of rising (traditionally, they’ve always been less likely to use cannabis than their male counterparts).
- Experts believe that California’s cannabis market is set to jump to $7.7billion by 2022.
Cannabis has been cultivated for centuries in California. Back in the 1700s, it was mainly grown for rope and fibre, and by the early 1800s, huge amounts of hemp were being harvested. However, in 1810, Mexican rebellion against Spanish control meant that hemp farming subsidies were cut – and as a result, most hemp plantations were abandoned by 1841.
By the end of the 19 th century, cannabis had had something of a rebirth, thanks mostly to the Turkish, Arabic and Armenian immigrants who had settled in the area, and who consumed the drug recreationally.
Like the rest of the USA, California’s cannabis market suffered after the ‘reefer madness’ campaign, which turned public opinion heavily against the drug. In 1907, the state passed the Poison and Pharmacy Act, which banned the sale of many substances; six years after, cannabis was added to the list. In fact, California was actually one of the first states to ban cannabis use.
The 1937 Marihuana Tax Act (which made cannabis illegal at federal level) didn’t actually have much impact in California; as the state’s authorities were already punishing those who consumed, grew or sold the drug. By the 1950s, being in possession of cannabis could land the offender in prison for as long as ten years.
Cannabis History: How Cannabis Came to America
The hippy movement
The ‘hippy boom’ of the 1960s meant that cannabis came back into popular use, despite its illegal status. In the middle of the decade, the Saturday Evening Post estimated that half of California’s college population had tried cannabis; demonstrating its significance in society.
San Francisco became the state’s ‘cannabis hub’; mainly because it was a central point for soldiers either travelling to, or arriving from South-East Asia. Those regarded as ‘different’ by society also congregated here; including those from the LGBTQ community.
Nobody is quite sure when the first cannabis sellers started operating out of shops in the city; but within a few short years, there were a number of ‘dispensaries’ in San Francisco. In addition to supplying cannabis for recreational purposes, they also became vital caregivers for those with AIDS and HIV.
Steps towards legalisation
In 1972, California was the first state to attempt to legalise the drug. Their attempt failed, as two-thirds of Californian people voted against it.
Although the law wasn’t passed, it marked a definite change of attitude within the state. Gradually, the laws started softening towards cannabis use, until in 1996, California became the first state to legalise medicinal use of the drug.
Cannabis in Colorado – Laws, Use, and History
Attitudes towards cannabis
A recent survey showed that attitudes towards cannabis in California can largely be divided into three groups.
- Consumers. The average age of the consumer is 39, and they have used cannabis or cannabis-containing products in the last six months.
- Acceptors. Acceptors have an average age of 49, and haven’t used cannabis recently, but would consider using it in the future.
- Rejecters. The average age of the rejecter is 56, and they aren’t likely to consider using cannabis in the future.
Numbers of consumers are rising, and numbers of rejectors are decreasing – which suggests that Californians are, on the whole, becoming increasingly more tolerant towards cannabis use.
While every effort has been made to ensure the accuracy of this article, it is not intended to provide legal advice, as individual situations will differ and should be discussed with an expert and/or lawyer.
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.
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.
“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.