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Why is this declaration for marijuana seeds and legal hemp so significant? Read more… The U.S. Food and Drug Administration has completed its evaluation of three generally recognized as safe (GRAS) notices for hemp seed-derived food ingredients.

DEA Declares Marijuana Seeds Below THC Limit are Legal Hemp

A January letter from the Drug Enforcement Agency (DEA) revealed its official stance that marijuana seeds with a delta-9 tetrahydrocannabinol (THC) concentration lower than 0.3% on a dry weight basis are considered hemp and are not controlled under the Controlled Substances Act. This declaration is significant because a marijuana product’s legality was previously thought to be determined by whether it was sourced from marijuana or hemp. This new guidance establishes that the legality of marijuana seeds, tissue culture, and other genetic material depends solely on delta-9 THC concentration.

Guidance on marijuana seeds

The 2018 Farm Bill excluded hemp from the Controlled Substances Act (CSA)’s definition of marijuana, lifting control on all parts of the plant Cannabis sativa L., so long as such parts don’t exceed 0.3% delta-9 THC concentration. Shane Pennington, a New York attorney, wrote to DEA requesting the control status of Cannabis sativa L. seeds, tissue culture, and other genetic material of the plant under the CSA. In response, DEA conducted a statutory review of the CSA and its implementing regulations and determined that legality, and thus control status, hinges on delta-9 THC concentration.

Thus, marijuana seeds with a delta-9 THC concentration of less than 0.3% on a dry weight basis meet the definition of hemp and are not controlled under the CSA. Conversely, marijuana seeds with a delta-9 THC concentration above 0.3% on a dry weight basis constitute marijuana, which remains a Schedule I substance under the CSA.

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Both hemp and marijuana seeds generally contain nominal THC levels that do not exceed 0.3%, however, this doesn’t guarantee that the resulting plant’s THC level will also fall below the threshold. By differentiating solely on the seeds’ THC concentration, it follows that DEA’s letter may have implied that individuals can legally possess what otherwise would be considered marijuana seeds, so long as the seeds have less than 0.3% THC. However, DEA’s guidance fails to address whether people may possess marijuana seeds and avoid criminal prosecution under the CSA if the plants produced from such seeds were to exceed the permitted THC concentration. Keep in mind that despite the laws in your state, it remains federally illegal to use any cannabis seeds with the intent of growing marijuana. Additionally, the DEA’s letter is only guidance without the full force and effect of the law or of official DEA regulation.

Other guidance

In addition to guidance on marijuana seeds, DEA again relies on the delta-9 THC concentration to clarify the control status of other material derived or extracted from the cannabis plant, such as tissue culture and other genetic material. This guidance mirrors that of marijuana seeds, namely that if such material has a delta-9 THC concentration of less than 0.3% on a dry weight basis, that material constitutes hemp and is not controlled under the CSA. Conversely, material that exceeds the 0.3% delta-9 THC limit constitutes marijuana, which remains a Schedule I controlled substance under the CSA.

Watch this space for more updates on all things cannabis, CBD, hemp, and psilocybin.

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You can contact Allison Campbell at [email protected] or 503-488-5424.

FDA Responds to Three GRAS Notices for Hemp Seed-Derived Ingredients for Use in Human Food

The U.S. Food and Drug Administration has completed its evaluation of three generally recognized as safe (GRAS) notices for hemp seed-derived food ingredients. The GRAS notices were submitted by Fresh Hemp Foods, Ltd. The agency has no questions about Fresh Hemp Food’s conclusion that the following ingredients are GRAS under their intended conditions of use: hulled hemp seed (GRN765), hemp seed protein powder (GRN771), and hemp seed oil (GRN778).

Foods containing hemp seed and hemp seed-derived ingredients are currently marketed in the US. Hemp seeds are the seeds of the hemp plant, Cannabis sativa. Although hemp is from the same species as cannabis (marijuana), the seeds themselves do not naturally contain tetrahydrocannabinol (THC), the main psychoactive ingredient in cannabis. The hemp seed-derived ingredients that are the subject of these GRAS notices contain only trace amounts of THC and CBD, which the seeds may pick up during harvesting and processing when they are in contact with other parts of the plant. Consumption of these hemp seed-derived ingredients is not capable of making consumers “high”.

The GRAS notices are for three different hemp seed-derived ingredients. The GRAS conclusions can apply to ingredients from other companies, if they are manufactured in a way that is consistent with the notices and they meet the listed specifications. Some of the intended uses for these ingredients include adding them as source of protein, carbohydrates, oil, and other nutrients to beverages (juices, smoothies, protein drinks, plant-based alternatives to dairy products), soups, dips, spreads, sauces, dressings, plant-based alternatives to meat products, desserts, baked goods, cereals, snacks and nutrition bars. Products that contain any of these hemp seed-derived ingredients must declare them by name on the ingredient list.

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These GRAS conclusions do not affect the FDA’s position on the addition of CBD and THC to food. As stated on FDA and Marijuana: Questions and Answers, it is a prohibited act under section 301(ll) of the Federal Food, Drug, and Cosmetic Act to introduce into interstate commerce a food to which CBD or THC has been added.

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