Michael Moss wants to help other patients with his mail-order cannabis seed business. He says a legal loophole allows it. 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.
Pipe Dream? Arizona Man Believes Legal Loophole Lets Him Sell Pot Seeds
Michael Moss was a welder until degenerative disc disease forced him into an early retirement. In 2011, he moved to Arizona for the climate, landing in the small Navajo County city of Show Low.
What followed was a series of surgeries that sandwiched the broken vertebrae in the middle of his spine between 24 screws in his neck and six lag bolts in his lower back.
When the heavy, opioid-based painkillers doctors prescribed him left him emaciated and like a “zombie,” he turned to medical marijuana. But the high-potency medicine he needed cost as much as $400 a week. That was unaffordable on disability pay, so he started growing his own.
After a bad experience buying seeds, Moss decided to start selling them himself to offer a better alternative. These days, the 48-year-old entrepreneur is bringing in an estimated $1,000 a month by selling seeds openly on the internet.
“I’m just trying to help people. No one was there to help me,” Moss told Phoenix New Times.
The business is not illegal because the seeds are marketed as “souvenirs,” he said, according to advice he received from an attorney with a prepaid legal service.
However, postal authorities say there is no such loophole, and that Moss could face serious repercussions.
Moss is one of the few U.S.-based cannabis seed vendors and offers what he said is the largest seed collection in Arizona. He has 100 different strains he sells through his website and hopes to have added an additional 100 by next year. Among the payment options accepted: Venmo, Facebook Pay, a Walmart wire transfer and mailed checks. Most of his earnings go back into the business, he said.
While a growing number of states, including Arizona, have legalized recreational or medical marijuana, transporting marijuana products across state borders is a federal offense. Members of Arizona’s cannabis industry joke that the seeds to start state-approved grow ops blew across the border from California in the wind.
Moss openly admits to mailing seeds across state borders. He buys seeds from growers in Washington, California, Oklahoma, and Michigan. People in Oklahoma made up his biggest customer base for a while. While there are “seed banks” in Europe, purchasers carry the risk of having their seeds intercepted by customs officials if not properly disguised. Seeds shipped within the United States don’t have that problem.
After consulting with lawyers at LegalShield, a prepaid legal insurance service, Moss said he believes what he is doing is legal as long as the seeds are sold as souvenirs or collectors items to people over the age of 21. His website and pop-up stores carry disclaimers saying as much.
“Once they leave me, it’s up to [buyers] to abide by their state laws,” Moss said, acknowledging that he will help offer general advice about cultivating cannabis to anyone who calls.
Not only is Moss operating in the open, but his Venmo feed is public, showing the names of purchasers and their order numbers. Discretion isn’t in the business plan: He used some of his savings to get a car decorated with weed decals and the name of his business, MossMSeeds. Soon, he’s going to add neon lighting to the ride and a smoke machine. He gave an interview to the White Mountain Independent for an article about his business last month, and Moss comes to the Valley on weekends for events and podcast interviews.
“I’m a handicapped, disabled guy trying to keep myself well and it’s just a plant,” he said. “The wheelchair is coming. That’s why I’m trying to make a mark.”
Plant or not, federal authorities don’t take kindly to distributing pot seeds in the mail.
Liz Davis, a spokesperson for the Phoenix division of the U.S. Postal Inspection Service, said that while marijuana is legal in some states, it’s federally illegal under the Controlled Substances Act and cannabis seeds are therefore illegal to mail. The inspection service aggressively pursues people who traffic in all forms of illegal narcotics, she said.
“Honestly, as Postal Inspectors, we don’t really care what someone purports to be selling. If it is illegal to mail, it is illegal to mail,” Davis wrote in an email. “Our mission as inspectors is to ensure the mail is safe for our employees and our customers. Whether stated as a souvenir or having an agricultural purpose, it is still a controlled substance and therefore nonmailable. USPS Letter Carriers have been killed delivering parcels containing controlled substances. If it is a nonmailable item, we do not want it in the mail.”
Davis added that if New Times shared Moss’ name and contact information, they would investigate further. New Times declined her offer. But Moss isn’t hiding.
Phoenix cannabis attorney Tom Dean said Moss is facing serious legal jeopardy.
“My advice to him is not to do it,” said Dean, a former legal director for the National Organization for the Reform of Marijuana Laws (NORML) who has practiced cannabis law for over 20 years. Even if someone has a “clever” defense, most don’t get a chance to use it because that would require going to trial and facing mandatory prison time if it doesn’t work. Instead, they take a plea deal. In this case, “there’s no grey area,” Dean said.
When New Times asked Moss about what Dean said, he cited a different website selling seeds that claims marijuana seeds are legal in Arizona since they don’t contain THC or CBD. He also pointed out that he had obtained a license from the state to sell agricultural seeds at his lawyer’s advice.
That’s no good, according to Dean. For one, un-sterilized seeds are explicitly considered marijuana for the purposes of Arizona and federal law, meaning that selling them within Arizona requires a license. Even if selling seeds was legal in Arizona, transporting them between states and in the mail is a federal offense.
“The seed dealer’s license doesn’t mean he can sell illegal drugs,” Dean said.
It’s unclear how much emphasis federal or state authorities may put on cracking down on people like Moss, Dean said. But based on how they’ve handled medical marijuana, local law enforcement may face pressure from the cannabis industry to crack down on unlicensed growers and avoid a free-for-all. People who buy from Moss are unlikely to face prosecution, but it’s not out of the question.
“Good intentions are not a defense. Being mistaken is not a defense. And law enforcement could care less about that kind of thing,” he said.
While Moss is small-time compared to some other online seed vendors, the federal government has cracked down hard on similar businesses in the past.
In 2005, Western District of Washington U.S. Attorney Jenny Durkan, now mayor of Seattle, had the head of the British Columbia Marijuana Party extradited to the United States on charges of selling marijuana seeds to Americans through the mail. Marc Emery claimed to be making $3 million a year from the sales and was eventually sentenced to five years in prison.
David Williams, the general counsel for the law firm Davis Miles McGuire Gardner, PLLC, which provided Moss his advice through LegalShield, said he could not comment or acknowledge whether Moss was a client of the firm due to attorney-client confidentially. In an email sent to Moss, and shared with New Times, he said they provided him limited advice but do not comment on their work to the media.
Despite Dean’s warning, Moss said on Wednesday he plans to continue his business based on the advice he says he got from the LegalShield attorney and what he’s read online.
“It is kind of concerning, but at the same time I’m going to keep doing what I got to do,” he said. “If they want to pick on a disabled guy over a plant … I’m a disabled guy who doesn’t want to be on pain meds and this is what helps me.”
“I bet he never Googled it,” he added of Dean.
In an interview the next day, Moss told New Times he had Googled local cannabis attorneys, calling as many as he could. He spoke to one on Thursday morning who told him he was at some risk but that the lawyer’s “gut feeling” was that authorities wouldn’t come after him. That made Moss feel better. At the attorney’s recommendation, he’s going to start including the disclaimer from his website in each package.
“I feel a lot safer at this point,” Moss said.
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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.
KEEP WESTWORD FREE. Since we started Westword, it has been defined as the free, independent voice of Denver, and we’d like to keep it that way. With local media under siege, it’s more important than ever for us to rally support behind funding our local journalism. You can help by participating in our “I Support” program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
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.