Weed is legal – but what about cannabis seeds?

The first column I wrote about legal weed in Virginia appeared on July 1, 2021, aka Marijuana Freedom Day. That’s the date adult possession of small amounts of weed, and homegrows of up to four plants, became legal in Virginia.

Back then, one question on many minds was, “Where can I get seeds?” There was no simple answer, because unlike the 1970s, when black-market weed was loaded with seeds, most marijuana these days is seedless, which makes for much higher-potency weed.

Even after possession became legal, selling recreational weed remained illegal, as it does today. Gifting a small amount to a friend was and is legal, however.

One result in 2021 was large-scale cannabis seed giveaways organized by Jonathan Zinski, a hemp farmer in Campbell County. He attracted a throng on Church Avenue downtown with a free-seeds distribution that fall. Few if any Virginia retailers jumped into the seed-selling business then.

Two years later, the cannabis-seed market is quickly evolving. Tuesday, I plunked down $89 plus tax for a six-pack of feminized seeds at Blue Ridge Hydroponics on Fifth Street in the Old Southwest neighborhood.

Behind its front counter is a tote the size of a small laundry basket, full of sealed seed packs. On the counter was a catalog, in a three-ring binder, that listed attributes of the many seed varieties the store sells. Some are local, by producers such as Roanoke-based White Lightning Seeds.

Blue Ridge Hydroponics isn’t the only local retailer offering cannabis seeds. Also selling them are Inside Out on Williamson Road; Foster’s General Store on U.S. 220 north of Rocky Mount; and Groundworks Garden & Hydroponics Supply on Roanoke Street in Christiansburg.

Mind you, those are the stores I checked; cannabis seeds are probably available at other retailers, too.

Typically the packs are offered as novelties. The six-pack I purchased of “Gorilla Glue #4” seeds is labeled “strictly for souvenir & strain preservation purposes only.

The price I paid — $15 per seed — seems rather high, right? That’s way more expensive than Blue Ridge Hydroponics’ tomato seeds. (The store’s motto is “Helping you grow ‘tomatoes’ … and tomatoes since 2004.”)

My chief question was, are they legal to sell? The answer to that question depends on who you ask. When I put it to Roanoke Commonwealth’s Attorney Don Caldwell, he replied, “Who knows?”

State Del. Chris Head, R-Botetourt, said gaps and overlaps between state and federal laws have left Virginia with a “wild-west” regulatory framework for marijuana.

Virginia law doesn’t specifically ban the sale of cannabis seeds. But it doesn’t specifically authorize sales, either. Meanwhile, a 2018 federal law allows the sale of any hemp product with less than 0.3% THC. That’s the chief psychoactive cannabinoid in pot.

Zinski, the hemp farmer in Campbell County, also serves on the Virginia Hemp Coalition Advisory Board.

“All cannabis seeds, by current legal definition, are considered [legal] hemp,” Zinski said. “There are no cannabinoids [such as THC] present in cannabis seeds at all.” According to him, the lack of THC is what makes cannabis seeds not illegal.

That’s similar to what I heard from Brynnen Beierle, the current owner of Blue Ridge Hydroponics. The native Californian grew up in the Los Angeles area but moved here three years ago.

She purchased the grow shop from its former owners recently. Before she got into the home-gardening supply business, Beierle, 27, operated personal training and wellness businesses, and she also tended bar.

“It’s a gray area,” she said. Although plants grown from those seeds may ultimately contain plenty of THC, the seeds themselves have none of the substance. “That’s where the gray area exists. It’s literally just a seed,” Beierle told me.

I got a different answer when I put the “Are seed sales legal?” question to Nick Hagen, a Roanoke attorney who specializes in cannabis law.

“The very short answer is ‘No’ under Virginia law,” Hagen said. He added: “The question quickly becomes, will somebody ever be prosecuted?”

Marijuana (as opposed to non-psychoactive hemp) remains a banned substance under federal law. But years ago, after Colorado legalized weed, the U.S. Department of Justice “sent out a memo saying that, if a state has a well-regulated [cannabis] industry, the DOJ would not allocate funding for cannabis prosecutions,” Hagen said.

And what about state prosecutions? That’s a question for a Virginia prosecutor, Hagen said.

Caldwell, Roanoke’s commonwealth’s attorney for 44 years, said marijuana cases are “not a priority” for his office, unless the weight of pot seized is “in the pounds.”

And even then, the prosecutor has to have material lab-tested to ensure it’s not legal hemp. By appearance and odor, the two are indistinguishable. And right now, hemp flower sales are legal.

“The law is just so confused, and the testing mechanism so onerous, and the distinction between hemp and marijuana so cloudy, that really, it’s just a state of confusion in Virginia,” Caldwell said.

Steve Cooper, of Misty Mountain Wares, a head shop in Rocky Mount, said he’s not selling seeds.

“If I was sure they were legal, I would sell them,” Cooper told me. “But it’s such a gray area right now, I don’t know.”

Travis Wimmer, owner of Inside Out on Williamson Road, said he began selling seeds last year. He’s mostly out of a $16,000 order he purchased in January. But Wimmer said he intends to restock soon, for the upcoming outdoor grow season, which kicks off May 1.

Similar to Blue Ridge Hydroponics, Wimmer’s seed prices start at $25 for a three-pack and range up to $100, depending on the number of seeds, the strain and its type.

Feminized seeds are more desirable (and costly) because they produce only female plants. That’s the object of every home-grower, because male plants won’t get anyone high.

Worse, the presence of male plants will drastically lower the yield of females, when pollen from a boy plant fertilizes the girls. That’s why many home-growers seek feminized seeds.

Wimmer said the seeds he sells are legal “because of the [2018] farm bill,” and because the seeds are hemp products that contain less than 0.3% of THC.

Dave Rash, owner of Groundworks Garden & Hydroponics Supply in Christiansburg, said he began selling cannabis seeds a month or two ago as souvenirs and novelties.

“I can’t prove what your intention is once you leave here,” Rash said. (Over the phone, I thought I heard him winking.)

Charley Foster, co-owner of Foster’s General Store near Rocky Mount, said he’s been selling seeds for about two months. He carries about 50 different strains. So far, they’re not selling particularly briskly, he said.

“They’ve still got that stigma,” Foster added. Maybe this column will send him a few customers. He sounded excited at the prospect.

This year, the Virginia General Assembly passed no legislation that answers the seed legality question.

Nor did the legislature take steps toward establishing a regulatory framework for legal sales of recreational marijuana, which was anticipated by the 2021 legislation that legalized possession and home-grows.

Instead, the General Assembly has taken steps in the other direction.

One bill that’s currently on Gov. Glenn Youngkin’s desk would restrict sales of products containing THC isomers, such as Delta 8 THC, a product of legal hemp. If the governor signs that measure, it will destroy Virginia’s $500 million hemp industry, Zinski told me.

Given the direction of that legislation, I asked Foster if he thought state lawmakers might in the future outlaw possession or home-grows once again. He laughed.

“Look what happened when they were taking down [Confederate] statues,” Foster said. “Those protests were nothing compared to what’ll happen if you tell rednecks they can’t have their weed.”