Legal Situation of Seed Banks (Part II)

Legal Situation of Seed Banks (Part II)

This is the second part of an article about seed banks. Please read the first part here.

While the criminal aspect of seed banks seems clear, the administrative aspect is not, despite the fact that as of today, seeds are easily sold both in physical stores and through websites. The uncertainty arises from the existence of a regulation, Order SCO/190/2004 of January 28th, which establishes a list of plants whose sale to the public is prohibited or restricted due to their toxicity. Among these plants is the cannabis plant, including its seeds.

This Order, which is approved in accordance with Article 42 of the Medicines Act 25/1990, should be applied, according to Circular 6/2004 of the Spanish Agency of Medicines and Medical Devices, only when the plant is intended for the production of narcotics, and not for industrial, ornamental, or cosmetic purposes.

Based on this regulation, I believe that if the seeds are intended for the cultivation of marijuana for recreational or therapeutic use (both cases resulting in narcotic effects), we would be in direct violation of the prohibition set by law, regardless of whether the authorities turn a blind eye or whether it could be argued, at some point, that the sale of the seeds is for collectible or agricultural research purposes.

In any case, I believe that caution should be exercised in the sale and distribution of seeds, especially if there is a risk of selling them to minors. The corresponding legal warnings should be clearly displayed on websites and other commercial documents (catalogs, delivery notes, invoices, etc.). While I am of the opinion that these legal warnings do not guarantee exemption from liability, it is appropriate for them to be visible, with the intention of avoiding any promotion or encouragement of cannabis consumption.

I would also like to briefly address the origin of the seeds sold on websites and grow-shops. As I mentioned at the beginning of this article, there are few cases in Spain of genuine seed banks, with the majority of sellers being mere intermediaries who distribute foreign producers’ seeds in Spain. With that in mind, we can consider two possibilities: either the seeds are imported or they are produced in Spain.

Regarding the possibility of producing seeds in Spain, we must remember that under the current legislation and jurisprudence, the only permitted cultivation is either with administrative authorization under the Medicines Act and complementary regulations, or for personal use, without prejudice to any authorization granted for industrial use (plants with THC below 2% intended for fiber production and other purposes). How many authorizations have been granted by the administration to breeders or cultivators for the production of seeds for sale? Well, I honestly don’t know, but I assume the number is zero. And of course, profiting from the sale of seeds produced for personal use raises legal concerns.

In the case of importing seeds, the situation is not entirely clear either. The legislation does not specifically address the importation of cannabis seeds for personal use or research purposes. However, it is important to note that importing controlled substances, such as cannabis seeds, without the necessary permits or authorizations is generally prohibited. This means that even though some websites or grow-shops openly sell cannabis seeds, their legal status is still uncertain.

It is also worth mentioning that there have been cases where seed banks have faced legal action. For example, in 2014, a well-known seed bank in Spain was raided, and several individuals faced charges for the production and sale of cannabis seeds. This demonstrates that authorities are willing to take action against illegal activities related to cannabis, including seed banks.

In conclusion, the legal situation of seed banks, particularly in relation to the sale of cannabis seeds, is still ambiguous in Spain. While there is a clear prohibition on the sale of certain toxic plants, including cannabis, for the purpose of producing narcotics, the interpretation and enforcement of this prohibition in the context of seed banks remains uncertain. It is important for sellers and buyers of cannabis seeds to exercise caution and be aware of the potential legal risks involved. As the legal landscape surrounding cannabis continues to evolve, it is advisable to stay informed and seek legal advice if needed.