The US Drug Enforcement Administration has issued a legal interpretation that acknowledges that cannabis seeds, tissue culture samples and other genetic material with less than 0.3% THC are legal hemp products not subject to federal prohibitions on marijuana. The DEA cannabis seeds decision was revealed its decision in a letter to Shane Pennington, an attorney focusing on cannabis law and litigation with the legal firm Vicente Sederberg LLP.
The 2018 Farm Bill legalized hemp, which was defined as any part of the cannabis plant, including the seeds, with a delta-9-tetrahydrocannabinol (the most commonly known form of THC) concentration of not more than 0.3% on a dry weight basis. In November 2021, Pennington sent a letter to the DEA seeking a determination whether cannabis seeds, clones and other genetic material with no more than 0.3% THC are subject to federal control. This April, he received a reply from the agency, which he shared in his Substack column “On Drugs”on April 4.
In a January letter to Pennington, Terrence L. Boos, the chief of the Drug & Chemical Evaluation Section of the DEA, wrote that “marijuana seed that has a delta-9-tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis meets the definition of ‘hemp’ and thus is not controlled under the CSA. Conversely, marijuana seed having a delta-9 tetrahydrocannabinol concentration of more than 0.3% on a dry weight basis is controlled in schedule I under the CSA as marijuana.”
Source Rule Questioned
The decision calls into question the veracity of the so-called source rule, a legal theory that holds the legality of cannabis material is dependent on the source from which it was derived—federally illegal marijuana or legal hemp. Under the theory, any seeds, clones or other plant material sourced from cannabis with less than 0.3% THC (i.e., hemp) is legal to possess, process and sell.
“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’s ‘sourced’ from marijuana or hemp—influencing legislative proposals even at the federal level,” Pennington told Marijuana Moment.
In addition to seeds, the letter from the DEA also acknowledges that “other material that’s 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% on a dry weight basis meets the definition of “hemp” and thus isn’t controlled under the CSA.”
Pennington says he is hopeful this will clear up a lot of confusion in this area of the law.
“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,” he said.
DEA Decision Doesn’t Change Law
In an email, Pennington noted that the DEA’s decision doesn’t change the law. Instead, the letter reveals how the DEA is interpreting existing law, namely the Controlled Substances Act. Pennington wrote that the “DEA’s view of the control status of various substances under the federal Controlled Substances Act is authoritative, and many people assumed DEA’s authoritative view was more restrictive.”
“Now that people know that DEA agrees that seeds, tissue cultures and any other genetic material with not more than .03% delta-9 THC by dry weight isn’t subject to control under the Controlled Substances Act, it feels to them like the law has changed,” he continued in an email to Cannabis Now. “In fact, though, this letter simply revealed what DEA very likely thought all along.”
But the attorney also noted that the decision is limited in scope and doesn’t mean that cannabis companies will be permitted to freely send their genetics across state lines. The DEA only found that cannabis seeds, clones and genetic material with less than 0.3% THC aren’t subject to control under the Controlled Substances Act and “there are many other state and federal laws and regulations that may apply to any proposed interstate shipment of cultivars.”
The DEA cannabis seeds decision is another example of the reach of the legalization of hemp in the 2018 Farm Bill. Last year, the DEA clarified to state regulators that delta-8 THC, an intoxicating cannabinoid that can be processed from hemp, is also not under the control of the Controlled Substances Act.