High Court of Justice of Andalusia: Cannabis Seeds Are Not a Crime

Legal Misinterpretation by Authorities

During the 2021 inspection campaign, which targeted shops in Granada, authorities attempted to classify the sale of cannabis seeds under industrial agriculture regulations. They argued that, since the seeds were not registered in the Register of Commercial Varieties, their sale was illegal.

However, lawyer Marta de Luxán pointed out that this interpretation was legally flawed:

"We insisted to the Regional Government that the law was not being broken because these seeds are not intended for agricultural use or nursery production. Since they contain more than 0.2% THC (the legal limit at the time), the law itself prohibits their registration. You cannot penalize a business for not registering a product that the law does not allow to be registered."

Even agricultural technicians from the Andalusian Regional Government supported the lawyers' arguments in their reports, although the administration's legal team chose to impose sanctions, which the High Court of Justice has now definitively overturned.

Why Isn't It a Crime Against Public Health?

One of the most critical aspects of these rulings is that the High Court of Justice initiated an investigation to determine whether a crime had occurred. The investigation concluded that the sale of seeds does not constitute a drug.

Lawyer Héctor Brotons, from the Brotons law firm, explains the three key points of this defense:

1. Outside of Control: The seeds are not listed in the 1961 UN Single Convention, which means they are not considered narcotics under the law.
2. Absence of Active Ingredient: Since they do not contain THC at psychoactive levels, their possession or sale does not violate Article 368 of the Penal Code.
3. Statute of Limitations and Lack of Criminal Law: In many cases, the alleged offenses have expired under the statute of limitations. Additionally, it has been confirmed that selling seeds as collector's items does not fall under the criminal offense of drug trafficking unless a direct link to large-scale illegal cultivation for the black market is established.

Case Law in Andalusia: The Seed Law and Amateur Use

In addition to the issue of smuggling, the High Court of Justice of Andalusia (TSJA) has clarified another long-standing conflict: the application of Law 30/2006 on seeds and nursery plants. After more than two years of uncertainty, the TSJA has established a unified legal doctrine stating that the sanctions regime of this law does not apply to cannabis seeds.

To understand the implications of this development, we have insights from César García-Vidal, from Escola Abogados:

"It's a victory that provides legal certainty to the sector, albeit a bittersweet one. The court acknowledges that the Seed Law does not apply to penalizing these products, but it avoids clearly defining their nature as hobbyist seeds). Furthermore, it is contradictory to initiate criminal proceedings for possible trafficking when the Directorate General of Taxes itself recognizes that these seeds are marketable goods subject to 21% VAT, as they are not considered common agricultural products."

Conclusion: Ongoing Challenges for the Cannabis Sector

This ruling brings some relief from the aggressive enforcement actions of administrations like the Andalusian Regional Government. However, as García-Vidal warns, the battle could continue in the Supreme Court if the administration decides to appeal.

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