Cannabis has hit the headlines again. In the US, Senator Chuck Schumer has just introduced legislation to decriminalise cannabis at the federal level… 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. Cali bud could end up on the East Coast easier than you think, according to a new official determination from the DEA.
The curious case of cannabis seeds and the criminal law
Blog Corker Binning Blog
Cannabis has hit the headlines again. In the US, Senator Chuck Schumer has just introduced legislation to decriminalise cannabis at the federal level. In the UK, institutions as diverse as the Green Party and the Institute of Economic Affairs have added their voices to the chorus of people calling for cannabis to be legalised. Against this background, a recent extradition request from the US to the UK has exposed an intriguing discrepancy between the criminal laws of both countries concerning cannabis seeds.
In The Queen on the application of the United States of America v Gypsy Nirvana  EWHC 706, the US sought the extradition from the UK of a defendant accused of trafficking, exporting and importing marijuana seeds (and related money laundering). The District Judge at first instance found, and the Divisional Court on appeal agreed, that this conduct did not constitute a criminal offence contrary to UK law. Thus the “double criminality” rule of extradition was not satisfied, i.e. had the defendant trafficked, exported or imported marijuana seeds in the UK, he could not have been prosecuted in the UK. The defendant was therefore discharged from the extradition proceedings.
The Court’s decision is based on a deliberate but nonetheless curious lacuna in UK law. Cannabis has been classified as an illegal drug in the UK since 1928 (and since 1971 it has been illegal for doctors to prescribe it for medical use). However, at no point have cannabis seeds been criminalised under UK law. Cannabis seeds are not a controlled drug for the purposes of the Misuse of Drugs Act 1971 (“MDA”). Consequently, selling cannabis seeds is not a supplying offence, nor is the export or import of cannabis seeds prohibited or restricted. The Court in Gypsy Nirvana cited with approval R v Jones  2 Cr App R 10, in which Leveson LJ observed that:
“it is not illegal to offer for sale or supply the paraphernalia associated with smoking cannabis and nor is it illegal to offer for sale or supply the equipment necessary to grow the plant, books which explain how cannabis may be grown or, indeed, cannabis seeds. As a result, there are a number of shops and other outlets which offer these goods for sale but it is obviously very important that these premises do not overstep the line and incite the commission of an offence.”
The reference to “overstepping the line” is understandable in light of section 6(1) MDA, which criminalises the cultivation of any plant of the genus cannabis. If D1 sells cannabis seeds to D2, D1 may, depending on the facts, be regarded as committing an inchoate criminal offence by inciting D2 to cultivate cannabis. In these circumstances, which inchoate offences could D1 be charged with?
Although the common law offence of incitement was repealed in 2008, several statutory offences of incitement remain in force. These include section 19 MDA, which provides that:
“It is an offence for a person to incite another to commit an offence under any other provision of this Act.”
There are similar offences in sections 44-46 of the Serious Crime Act 2007 (“SCA”). Section 44 SCA criminalises intentionally encouraging or assisting an offence. Section 45 SCA criminalises encouraging or assisting an offence, believing it will be committed. Section 46 SCA criminalises encouraging or assisting offences, believing one or more of those offences will be committed. A UK-based operator of a cannabis seed business is potentially exposed to all of these inchoate offences, even though cannabis seeds are not themselves illegal. When, therefore, does selling something which is not itself illegal attract criminal liability because the circumstances of the sale are such that they constitute incitement to commit an offence? Case law provides some guidance.
In R v Marlow  1 Cr App R 273, the defendant appealed against his conviction for incitement to cultivate cannabis contrary to section 19 MDA. The defendant had sold approximately 500 copies of his book on cannabis cultivation. The prosecution argued that the book was a “grower’s guide”, such that the defendant’s intention in inciting others to cultivate cannabis was self-evident. The defence argued that the book simply gave advice and information which was freely available elsewhere, and that its sale was too remote from the actions of those reading it to constitute incitement. His conviction was upheld.
Similarly, in Jones, the defendant’s conviction was upheld for incitement to cultivate cannabis contrary to section 19 MDA. The defendant’s shop sold smoking paraphernalia and hydrophonics equipment. An undercover police officer went to the shop to make test purchases and, posing as a would-be cannabis grower, asked the defendant for advice. After what was alleged to be a pretence that they were discussing tomatoes, that advice was freely given. The prosecution case was that the advice and sale of equipment amounted to incitement. The defence argued that the items he sold were not illegal and that he had taken steps to ensure he stayed within the law, i.e. not mentioning cannabis by name, only mentioning tomatoes, telling the undercover officer that it was illegal to cultivate cannabis and pointing to notices in the shop advising that it was illegal to cultivate cannabis. The Court found that it was open to the jury to conclude that the word “tomatoes” was no more than a device to avoid saying the word “cannabis”, and that the defendant’s positive advice about the safest and most productive way to grow “tomatoes” was evidence of an intention to incite cannabis cultivation.
To prove an offence of incitement it is not necessary to prove that anyone was in fact incited. The offence of incitement is committed when the inciting words or conduct take place. In Marlow, the book was capable of persuading someone to cultivate cannabis, and it was clearly published and sold for that purpose, regardless of whether anyone tried to implement its advice. Likewise, in Jones, the advice relayed to the undercover officer, together with the sale of the equipment, evidenced a desire to encourage the officer to cultivate cannabis.
In light of Marlow and Jones, it might be asked: doesn’t the act of selling cannabis seeds constitute sufficient incitement to cultivate them contrary to section 19 MDA or sections 44-46 SCA? What, after all, is the purpose of selling industrial quantities of cannabis seeds, often to repeat customers, if not for their cultivation? Even if the seller puts disclaimers on his website that cannabis cultivation is illegal, that is no different to the defendant in Jones who plastered his shop with such warnings to maintain a veneer of legality.
In Gypsy Nirvana, the court’s answer to these questions was that the essential conduct alleged against the defendant in the US was trafficking, exporting and importing marijuana seeds. There were no analogue offences under UK law which mapped onto this conduct. The conduct alleged in the US was not described as a conspiracy to cultivate cannabis, nor encouraging or assisting cannabis cultivation, for which there would be analogue offences under UK law.
Arguably, this is a narrow and artificial application of the dual criminality rule. It is well-established that the analogue offence under UK law does not need to be on all fours with the offences alleged in the requesting state. Extradition practitioners will be aware that, in practice, the UK courts often adopt a purposive (some might say creative) approach to finding a UK offence which maps onto the conduct alleged by the requesting state.
But in Gypsy Nirvana, unlike in Marlow or Jones, it seems that there was no evidence that the defendant had said or done anything which could be construed as positive encouragement or advice as to how the seeds should be cultivated. The evidence in the US extradition request proved only that the defendant had sold the seeds. Even the widely and elaborately drafted inchoate liability provisions of the SCA (which postdate Marlow and Jones) could not stretch wide enough to capture the conduct of which the defendant was accused. These provisions could not be used to close the deliberate lacuna in UK law that the mere selling of cannabis seeds is lawful, unlike the position under US law.
If cannabis is legalised in the US, the case of Gypsy Nirvana will become no more than an interesting but academic footnote. Its long-term interest is that it illustrates the limitations of the law of incitement, not just in relation to drugs offences, but across the whole panoply of offences in English criminal law.
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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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.