Marijuana might be federally prohibited, but the Drug Enforcement Administration (DEA) has effectively acknowledged that the plant’s seeds are generally uncontrolled and legal, regardless of how much THC might end up being produced in buds if those seeds were cultivated.
DEA recently carried out a review of federal statute and implementing regulations in response to an inquiry from attorney Shane Pennington regarding the legality of cannabis seeds, tissue culture and “other genetic material” containing no more than 0.3 percent THC.
The agency affirmed that while it used to be the case that marijuana seeds were controlled—full stop—that’s no longer the case because of the federal legalization of hemp, as Pennington discussed in an edition of his On Drugs newsletter on Substack on Monday.
Following the enactment of the 2018 Farm Bill, hemp has been excluded from the Controlled Substances Act’s (CSA) definition of marijuana, making it so all parts of the plant Cannabis sativa L. are uncontrolled as long as they don’t exceed 0.3 percent THC.
“Accordingly, marihuana seed that has a delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis meets the definition of ‘hemp’ and thus is not controlled under the CSA,” Terrence L. Boos, chief of DEA”s Drug & Chemical Evaluation Section wrote in the letter, dated January 6. “Conversely, marihuana seed 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.”
Because both hemp and marijuana seeds generally contain nominal THC levels that wouldn’t exceed the legal threshold, DEA is essentially conceding that people can have cannabis seeds no matter how much THC the resulting plant might produce, as long as the seeds themselves contain less than 0.3 percent delta-9 THC. Of course, it continues to be federally illegal to use any cannabis seeds with the intent of growing still-prohibited marijuana.
“In my view, the letter is significant because we continue to see confusion over the source rule—the argument that the legal status of a cannabis product hinges on whether it is ‘sourced’ from marijuana or hemp—influencing legislative proposals even at the federal level,” Pennington told Marijuana Moment.
Pennington’s colleague Matt Zorn put together a flow chart that lays out their statutory interpretation:
“Now that we know that the legality of the ultimate ‘source’ of both hemp and marijuana plants (their seeds) hinges on delta-9 THC concentration alone, reliance on the source rule is much harder to defend,” Pennington said. “I’m hopeful this will clear up a lot of confusion in this area of law.”
Beyond seeds, the new DEA letter also clarifies that “other material that is derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis meets the definition of “hemp” and thus is not controlled under the CSA.”
Pennington and Zorn are no strangers to DEA. The attorneys have an extensive history of litigating against the agency on cannabis and broader drug policy issues, helping to break the federal monopoly on marijuana cultivation for research purposes, for example.
Zorn is also involved in a separate challenge to DEA’s proposal to ban five psychedelic compounds. Researchers and advocates scored a procedural victory in that case in February after the agency’s own administrative court agreed to hold hearings on the matter before the prohibition can be enacted.
Meanwhile, DEA officials last year clarified to state regulators that an increasingly popular, psychoactive cannabinoid known as delta-8 THC is not a controlled substance under existing statute.
The agency officials said that only products containing more than 0.3 percent delta-9 THC—the most commonly known intoxicating cannabinoid—is controlled, but the 2018 Farm Bill that legalized hemp does not explicitly ban THC isomers.
Separately, a bipartisan group of members of Congress sent a letter to DEA in January, urging the agency to let terminally ill patients have access to psilocybin. Lawmakers said DEA is “obstructing access to psilocybin for therapeutic use consistent with the letter and intent Right to Try (RTT) laws.”
Congress and 41 states have adopted right-to-try laws, which allow patients with terminal conditions to try investigational medications that have not been approved for general use. Lawmakers said that DEA “has failed to abide” by the law.
DEA has increased production quotas for the production of certain psychedelics like psilocybin in an effort to promote research, but its scheduling decisions have continued to represent obstacles for scientists—a point that’s been repeatedly echoed by the head of the National Institute on Drug Abuse.
Read the letter DEA sent on the legal status of marijuana seeds and other materials below: