We’ve recently received a number of inquiries about whether it is legal to import marijuana seeds into the United States. These are seeds derived from marijuana plants that have a THC content less than 0.3%, but when planted will germinate into marijuana plants that have a THC content more than 0.3%. The seeds themselves have little to no THC, regardless of whether they were extracted from or may germinate into a plant that has more than 0.3% THC.
U.S. trade law and the “reasonable care” standard
U.S. trade laws place a legal burden on the importer of record to exercise “reasonable care” to make sure that imported products are accurately declared to U.S. Customs and Border Protection (“CBP”). CBP is the federal agency responsible for ensuring that imported goods are allowed to enter only if they are in compliance with all applicable U.S. laws and regulations. CBP coordinates with a wide range of partner government agencies (e.g., FDA, EPA, DOT, ATF, CPSC, etc.) that have expertise in the laws and regulations applicable to particular products. CBP coordinates with the U.S. Drug Enforcement Administration (DEA) to implement and enforce the relevant provisions of the Controlled Substances Import and Export Act which makes it a crime to bring controlled substances into the country without a proper license.
Are marijuana seeds a “controlled substance”?
So are marijuana seeds a controlled substance? They probably shouldn’t be.
According to the Controlled Substances Act (CSA) the term “marihuana” means “all parts of the plant Cannabis sativa L.,” and specifically includes “the seeds thereof.” 21 U.S.C. § 802(16)(A). But “marihuana” does not include “hemp” which is defined as cannabis plants, “including the seeds thereof,” with a THC concentration of not more than 0.3% on a dry weight basis. 7 U.S.C. § 1639o.
On January 6, 2022, DEA issued a letter that responded to a specific query on the treatment of cannabis seeds. According to this DEA Letter, “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” (emphasis added). Based on this DEA Letter’s specific reference to “marihuana seed” it appears that DEA will not consider any seeds from marijuana or hemp to be “marihuana” as long as the THC concentration of those seeds is 0.3% or less—regardless of their plant source. Thus, this DEA Letter indicates that the cannabis seeds would not be “controlled substances” and would be lawful under U.S. federal law.
However, the DEA Letter is just one official response to one specific inquiry, and may not necessarily be generally applicable to everyone. Although it reflects one official’s interpretation of the federal laws relevant to cannabis seeds, this DEA Letter lacks the legal authority of a law or regulation that has gone through a formal rule-making process of being subject to notice and comment. But this DEA Letter may be enough federal guidance to support an importer’s best efforts to exercise reasonable care to determine if importing cannabis seeds is permissible under federal law.
The intersection of “reasonable care” and marijuana seeds import
Under U.S. trade laws, an importer is allowed to self-determine how a product should be determined as long as they exercise “reasonable care” when doing so. “Reasonable care” is not precisely defined. But it generally means when an importer conducts due diligence in considering all of the relevant facts related to the product in question, the circumstances of the importation, and the relevant laws, regulations and rulings.
An indicator of an importer exercising reasonable care is when they seek assistance from a qualified expert who can assist this evaluation. The gold standard for exercising reasonable care is when importers submit to CBP a formal ruling request for the product in question. Typically CBP ruling requests usually involve determining the appropriate tariff classification, valuation, or country of origin. CBP has issued plenty of rulings on whether products such as tobacco leaf wraps, water pipes, or grinders are drug paraphernalia. CBP has also issued tariff classification rulings on CBD oil and distillates and hemp biomass. But so far, CBP has not yet issued any rulings on whether cannabis seeds are admissible or should be considered a controlled substance. Given the interest in folks wanting to import cannabis seeds into the United States, it seems likely that CBP already has received requests to rule on the admissibility of cannabis seeds. But CBP may not yet be able or willing to make such a ruling on cannabis seeds; perhaps CBP does not want to get ahead of DEA and is waiting for DEA to provide more definitive guidance on how to treat cannabis seeds.
Anyone already importing cannabis seeds probably has done so without the formal blessing from CBP issuing a ruling that their cannabis seeds are admissible. But are those importations of cannabis seeds necessarily legal? Maybe.
CBP embargo of marijuana seed imports today
We are still hearing that CBP is looking at entries of imported cannabis seeds and taking various actions against those entries. For example, entries of imported seed have been subject to CBP examination. CBP has broad authority to examine imported merchandise. After an entry is filed, CBP has five days to determine whether to release, seize, or detain the merchandise. Merchandise not released within that five day period is considered detained. CBP is supposed issue a detention notice within five business days after a detention is made. However, in practice CBP is not always so prompt in issuing such detention notices and also sometimes does not provide any meaningful explanation for the detention. Following the issuance of the detention notice, CBP has 30 days from the date of the goods being presented for examination to decide whether to release, seize, or deny entry of the goods.
Even if CBP allows the release of imported seeds, CBP has the authority to demand that the importer redeliver the goods to CBP if CBP believes there are admissibility issues or the need to examine, inspect or appraise the goods. CBP can make a demand for redelivery within thirty days after the goods were released or after the conditional release period, whichever is later. A failure to comply with a CBP request for redelivery can result in CBP issuing a demand for liquidated damages.
So, although there are certainly valid reasons for importers to believe that importing cannabis seeds is legal, because CBP has not yet issued a ruling that officially acknowledges the admissibility of such cannabis seeds, importers still need to be aware that they still face some risk of CBP taking action that may affect their entries of imported seeds. An importer could assert that they have exercised reasonable care and point to consulting with outside experts and reference the CSA definitions for hemp and marijuana and the DEA Letter on seeds. But until CBP decides to make a ruling that acknowledges that cannabis seeds are admissible, any importer will have some degree of uncertainty on whether their import entries will be subject to some CBP request for additional information or be subject to examination or detention.
Ultimately, cannabis seeds probably should be legal to import. But until CBP finally issues a ruling that officially acknowledges that admissibility, importers should be prepared to deal with the real possibility that CBP could take actions against their import entries that will require them to jump through CBP’s administrative hoops.
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