Ability to source marijuana genetic material from outside Colorado
Senate Bill 23-271, which went into effect in early 2024, aims to enhance Colorado’s marijuana industry. A key provision allows licensed marijuana cultivators to source “genetic material” from approved entities in other jurisdictions. Genetic material is defined as material used to propagate cannabis plants, including:
- Immature plants and small plant fragments with ≤0.3% D9 THC on a dry weight basis;
- Cannabis seeds, which grow into marijuana; and
- Tissue cultures.
This law significantly expands sourcing options for Colorado cultivators, including opportunities, both domestic and international. Colorado cultivators can now bring in popular OG strains from around the world.
The anticipated marketing frenzy, however, hasn’t fully materialized. The answer lies in the complexity of transporting genetics across state and international lines.
That’s where we come in. With years of experience advising clients on compliant cross-border transportation, we understand the nuances in the law. Below is a high-level overview of the challenges involved. If you or your clients are ready to make an impact in Colorado’s market, please reach out to me or my team— we’d be happy to assist.
Marijuana genetics: are they hemp or marijuana?
This question – the Schrödinger’s Cat of the cannabis industry – is both simple and complex. In short, under federal law, marijuana genetics appear to be hemp. However, they are neither strictly hemp nor marijuana until a state makes that determination. In fact, in some states they may be both marijuana and hemp.
- “Marihuana” (referred to in this blog post as “marijuana”) is defined in the Controlled Substances Act (“CSA”), as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”
- Marijuana does not include “hemp” as defined in the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”).
- Hemp is defined as the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis.
In January 2022, the DEA issued a letter stating that cannabis seeds and other genetic material with ≤0.3% D9 THC meet the definition of hemp and aren’t controlled substances. Importantly, the DEA further clarified in a December 2022 letter that if the cannabis seed germinates into material exceeding 0.3% THC, then “that material” falls within CSA control. DEA’s use of “that material” rather than specifying the seed used to grow “that material” further supports that DEA, at least for now, does not view marijuana genetics (testing at ≤0.3% THC on a dry weight basis) as marijuana.
While these DEA letters aren’t legally binding, they suggest that marijuana genetics, when testing at ≤0.3% D9 THC, are considered hemp under federal law.
State complexities with marijuana and hemp genetics
Since marijuana genetics are currently treated as hemp under federal law, they can move across U.S. state and international lines. However, the 2018 Farm Bill allows states to impose stricter laws.
Some states, like neighboring Arizona, define marijuana genetics as material that will only grow into hemp. Others, like Arkansas, do not expressly exempt “hemp” form the definition of “marijuana,” creating a situation where the genetics are both hemp and marijuana. And States like Mississippi and Minnesota prohibit the sale of cannabis sativa seeds all together.
Understanding both federal and state laws is critical to ensuring a compliant transfer into Colorado. If the exporting state defines the genetics as hemp and permits exports, cultivators can likely import them into Colorado. If the exporting state does not define marijuana genetics as hemp, then selling or transporting marijuana genetics could lead to criminal violations under a state’s marijuana laws.
International considerations
An international import of marijuana genetics must comply with both state, federal, and international laws. As long as the export meets USDA and Customs requirements, federal law typically won’t pose an issue. However, it’s essential to consider the laws of the exporting country, and importing US state, ensuring that the genetics are classified as hemp by both governments. Otherwise, the transport may not only violate a US state’s laws, but also international law.
Conclusion
Licensed Colorado cultivators seeking unique marijuana strains from outside the state—whether from California, Oregon, or countries like Colombia and Jamaica—must navigate both federal and state laws. Harris Sliwoski has extensive experience helping operators transfer cannabis genetics. With our new Denver office, we are ready to assist Colorado cultivators with global genetics imports. A “Tour de Cannabis” anyone?
