They call it “the Immaculate Conception.”
Backers of legalizing recreational marijuana often use that miraculous reference when asked how Minnesotans can grow their own plants as soon as a law takes effect if the seeds needed to do so can’t legally be imported into the state. While 22 states have legalized growing the plant for medical or recreational uses, it remains illegal federally, and moving marijuana products across state lines is banned in most states.
So how does a state produce in-state plants without out-of-state seeds? Once plants are grown, they will produce seeds. But how do those pioneer plants get their start if everything related to cannabis in the state must be produced in the state?
See above. The wink-and-a-nod response comes because advocates know seeds will make it into the state — they already do. The legal gray area governing seeds is a don’t-ask-don’t-tell proposition. A federal Drug Enforcement Administration letter last year seems to clear the way for the movement of seeds as a result of the 2018 Farm Bill that legalized low-THC hemp. But lawyers are still reluctant to offer unequivocal advice.
It will become more than academic on August 1 if negotiators resolve differences between recreational cannabis bills that have already passed the House and Senate. Both versions say that possession of marijuana will be legal that day. And because both bills legalize the growing of cannabis plants for personal use, that could also be planting day.
So far, the bills do not clarify the legality and treatment of seeds, though sponsors say they are aware of the issues.
“It is certainly the intention of both bills to allow home grow. That is explicit in the bills,” said Rep. Zack Stephenson, the prime sponsor of House File 100. “You obviously need seeds in order to grow a plant, and so I think we will have a solution to that problem.” The co-chair of the conference committee on the bill, Sen. Lindsey Port, agreed.
The types of commercial production and retail sales envisioned in the bills will take up to 18 months to appear in Minnesota, though the hemp-derived edibles legalized last summer will remain on the market. To make a recreational cannabis market happen, the state must hire staff, set up a new Office of Cannabis Management, write rules and procedures, take and review applications for the dozen or more licenses. Licensed farms must then plant and tend to a crop that takes months to mature. Licensed processors must process. Licensed retailers must set up shop.
But the home-grow provisions of the bills mean the first legal cannabis produced and used by Minnesotans — at least those not part of the ongoing medical marijuana program — will be grown in basements and backyards and be mature in less than three months. No license is required. But seeds are.
“I have clients saying, ‘How do we get the seeds?’ and I explain to them and they say it doesn’t make any sense, and I say, ‘I know, but that’s the state of play,’” said Jason Tarasek, a lawyer and lobbyist whose practice is in cannabis law and policy.
That said, buying seeds online isn’t difficult. A web search reveals that marijuana seeds can be ordered from websites to be delivered. Some are in the U.S.; many are overseas.
I (heart) Growing Marijuana had a Mother’s Day Sale (buy 10 seeds, get 10 free). Seed Bank offers varieties with names such as Green Crack, Auto Purple Kush and Gorilla Glue. But they aren’t cheap. Five Gorilla Glue seeds costs $69.99.
“We have a supply and demand problem because the people who are willing to sell it are sticking their necks out in fear of criminal retribution,” Tarasek said. “If you open it up and allow the free market to do its work, then the price is gonna drop.”
“Seed production is cheap, but the markup is crazy,” said Bryant Jones, a plant scientist with a degree from the University of Minnesota who has been involved in cannabis cultivation in other states.
Home grow is not a standard provision of recreational marijuana laws across the U.S. Of the 22 states with recreational marijuana laws, only 10 allow home grow, though some others allow it for medical cannabis only. Minnesota would be the 11th, while New York will allow it soon.
Legal states have plentiful seed production and sale businesses. They produce a wide variety of seed types. And they will sell to other states. But most advise that it is up to the buyer to know what the laws are in their states.
“We ship worldwide and as such it is impossible for us to inform you about the laws and regulations in your country,” said seedbank. “It is your responsibility to comply with the laws and regulations in your own country or region.” Most sites offer discreet shipping, just in case.
While the details are still not set and won’t be until the House-Senate conference committee produces a report sometime this week, both bills allow those over 21 to grow marijuana in their home or private yard so long as it is enclosed and secured. They can have up to eight plants, with no more than four being mature, flowering plants. They can possess and use cannabis flower produced from their plants, and they can even give some away to other over-21-year-old adults. They can use it in their home or yard. But they can’t sell it, according to both versions of the bill.
Jones said there might be two types of home growers — those who will seek to buy seeds from other states and countries online and the “everyman” who will use a different path.
“The first thing you’ll want to do is get seeds from a reputable distributor,” Jones said. “Most people will probably turn to Canada or Michigan because of their proximity to us.” Some might prefer to buy tissue culture, which is a cutting from a mother plant that is then trimmed, sterilized and placed in a nutrient-rich culture.
“But what I expect most people will do is turn to the legacy markets locally and see where they can grab some seeds,” Jones said. “Legacy market” means the current illicit marijuana market that has supplied Minnesota users for decades. On August 1, anything that might have been illegal will be legal to possess, though it will remain illegal to sell marijuana products without a retailing license, which won’t be available for as long as 18 months. While the sponsors hope the legal market can compete and reduce the illicit market, no such legal competition will be available for some time.
“A lot of the stuff that people get has seeds in it,” he said. “I don’t think it would be too heavy of a lift for most.” New growers could buy seeds from seed banks or other suppliers “if they want to wait.” But some won’t.
“If we’re talking about the everyman, people have been waiting for cannabis to be legal for a very long time,” Jones said. “The everyperson will probably be searching their bags for seeds they have already, or with people in their immediate circle.” If they know what was in the bag, they’ll know what type of plant the seeds will produce.
‘No clear law, statute or court opinion’
Others might prefer ordering seeds online. Is that legal?
Again, it is complicated. Marijuana remains illegal federally, it in fact remains a schedule I drug along with heroin, meth and LSD because the federal government has determined it has “no currently accepted medical use and a high potential for abuse.”
While it seems that a seed needed to grow such a plant might draw the attention of federal drug enforcement agencies, it has not. One reason appears to be the 2018 Farm Act that gave federal approval to hemp, a close genetic relative of cannabis but with far less intoxicating potency.
Since 2018, hemp is legal in the U.S. as long as it contains less than 0.3% delta-9 THC. The edible products legalized in Minnesota last year have higher potency because the underlying hemp is processed to enhance the THC content.
A New York lawyer named Shane Pennington asked the federal Drug Enforcement Administration a year ago for its position on “the control status of Cannabis Sativa L seeds, tissue culture, and any other genetic material of Cannabis Sativa L under the Controlled Substance Act.”
A letter dated Jan. 6, 2022, produced a surprising result. Yes, the Controlled Substance Act states that “marihuana” (as it is spelled in the law) is illegal — “whether growing or not.” That includes everything: the seeds, the resin extracted from any part of the plant “and every compound, manufacture, sale, derivative, mixture, or preparation of the plant, its seeds or resin.”
But then came an exception. The 2018 Farm Bill excluded hemp from the domain of the Controlled Substances Act. That, wrote the DEA, includes hemp itself along with seeds, extracts, isomers and salts as long as it contains less than 0.3% THC.
“Accordingly, marihuana seed that has a delta-9 (THC) 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,” the agency wrote to Pennington.
Since cannabis seeds themselves do not contain more than 0.3% THC, are they legal to transport across state lines and possess? Maybe?
“It might (contain more than 0.3%) someday as it grows, but it doesn’t at the moment as a seed,” said Tarasek. “But there’s no clear law, statute or court opinion on that.” The DEA letter is important “but an agency’s interpretation of the law probably doesn’t have the full force of law, though it’s pretty persuasive.”
Tarasek represents clients that would like the pending Minnesota bill to include two provisions. One would simply say importation from other states or countries of seeds is legal. The other would allow certain seeds produced in Minnesota in the future to be able to be shipped to nurseries in other states that are part of seed development and research into the medical properties of cannabis.
Not specifically declaring in the recreational cannabis bill that seeds are legal to import, export and possess, “puts our nascent industry in an odd position because they have to get their seeds from somewhere. The wink-and-a-nod agreement to date has been the immaculate conception idea of ‘hey, look at these seeds. We just found them and now we’re growing a multi-million dollar marijuana farm with them.’
“That’s not tenable,” Tarasek said. “We’re gonna be the 23rd state to legalize marijuana. Let’s move on from this fallacy.”
Mark Schonfeld hired Tarasek to try to get another seed-related change to the final bill. The University of Minnesota law graduate who now lives in Florida has a personal and scientific interest in cannabis genetics since he began using medical marijuana for Crohn’s disease and complex PTSD. It gave him relief, but he has been working to find strains that provide even more relief.
But most states do not permit the exportation of seeds in the large quantities that are needed for genetic research. The reason is they want to maintain a chain of control — or track and trace — over all material related to the production of cannabis to keep it from slipping into the illicit market.
Schonefeld said he thinks the federal government will soon reclassify cannabis from a schedule I drug to a level where it can be the subject of research. State laws should be written to allow broader movement of seeds and other genetic material, he said.
“The easiest way is to include a carve-out in the law to allow seeds to exit states at the nursery level,” he said. “Just creating this way to exit the track-and-trace system at the nursery level would be a huge opportunity for people on the research side.”
Schonfeld said home grow could be a benefit to current medical patients in Minnesota. Not every person can or would want to grow some of their own marijuana, he said. But they could save some money versus buying it all through medical providers.
“The problem I have had as a medical user is the cost adds up pretty quickly,” he said. “If you can grow it at home and at least off-set some of that cost? It makes a lot of sense. But there is a subset who can’t because they don’t have a green thumb or they don’t want to and they rely on the dispensaries.”
And then there’s the Minnesota Seed Law. Regardless of what the DEA says about cannabis and hemp seeds being the same under the law, the Minnesota Department of Agriculture (MDA) sees it differently. And regardless of whether a state resident could order seeds from another state or country, the department has something to say about that transaction.
Denise Thiede is the section manager for seed, hemp and biotechnology in the plant protections division of the agency. She said a seller of seed into Minnesota would have to follow state law, and that would require a permit. They would also have to follow state law regarding testing and labeling. For example, if a seed produces a plant that is marijuana, the seed package would have to say marijuana and not hemp. She said hemp farmers already face risks of using hemp seed that produces a harvest that contains more than 0.3% THC, rendering them illegal.
“Every year the MDA has many lots (~10%) that fail to meet these requirements and must be remediated or destroyed,” Theide wrote to advocates. “Mislabeling marijuana as hemp would put these farmers at even greater risk of failure.”
“The DEA isn’t responsible for the movement and sale of seed in the state of Minnesota,” she said in an interview. “The key really is to protect consumers who buy seed. So someone who buys cannabis seed needs to know if it’s going to be hemp or marijuana.” Farmers need to know, even though they are the same species.
“Field corn and sweet corn and popcorn are all corn but they produce very different things,” she said.
The department would not prevent an out-of-state seller from selling to Minnesotans. But they would need a permit and meet labeling requirements and seed testing to substantiate the label claims, Theide said. But she said it might not delay the seed market too long. The department usually issues permits in a day or two, once the permit fees are paid.
Correction: the date when criminal penalties for possession are eliminated is August 1. If passed in that form, which is expected, home growing of cannabis can begin on August 1.