Q. What is the “pollinator law”?
A. The plant labeling law, commonly referred to as the “pollinator labeling law,” is Minnesota Statutes Chapter 18H.14(e). The statute, effective July 1, 2014 and revised in 2015, requires that plants labeled or advertised as “beneficial to pollinators” must be free of detectable levels of systemic insecticides. The Minnesota Department of Agriculture (MDA) will enforce the law which is designed to protect pollinators, such as honeybees, from exposure to systemic insecticides. The specific language is:
"A person selling at retail or providing to the end user of plant material may not label or advertise an annual plant, bedding plant, or other plant, plant material, or nursery stock as beneficial to pollinators if the annual plant, bedding plant, plant material or nursery stock has been treated with and has a detectable level of systemic insecticide that: (1) has a pollinator protection box on the label; or (2) has a pollinator, bee, or honey bee precautionary statement in the environmental hazards section of the insecticide product label; and a concentration in its flowers greater than the no observed adverse effect level of a systemic insecticide."
Simply put: If, at the point of sale in Minnesota, plants are advertised as attractive or beneficial to pollinators then those plants must not have in their flowers levels of systemic insecticides from products that carry the indicated label language toxic to honeybees.
Q. What is considered advertising?
A. Advertising is defined as an effort to bring public attention to or promote something. Calling attention to an attribute or a characteristic of a plant would therefore be considered advertising. This includes product description on plant labels, signage or catalogs that describe plants as bee-friendly, attractive to pollinators attracts bees, butterflies, hummingbirds etc., bee or butterfly plant, good nectar source or any description that the plant is associated with bees or pollinators by text, pictures or symbols.
Q. Can I have reference books or educational posters displayed that may include plant descriptions that describe plants as beneficial, or friendly to pollinators?
A. Third party literature such as horticulture books, posters, etc. is not considered advertising.
Q. Are verbal communications with my customers about plant qualities, including attractiveness to pollinators considered advertising?
A. Verbal descriptions of plant characteristics including their potential to be pollinator-friendly are not considered advertising.
Q. What is considered a pollinator?
A. Pollinators include insects, birds and mammals (examples include honey bees, butterflies, hummingbirds and bats).
Q. What plants are covered by the law?
A. All plants offered for sale in Minnesota are covered: annuals, bedding plants, perennials, trees and shrubs.
Q. What types of insecticides are regulated by this law?
A. The law does not regulate the use of specific insecticides or products; rather, it is the labeling of plant material that is regulated. Plants cannot be labeled or advertised as attractive or beneficial to pollinators if they are treated with systemic insecticide that: (i) has a pollinator protection box on the label; or (ii) has a pollinator, bee, or honey bee precautionary statement in the environmental hazards section of the insecticide product label that results in a concentration in its flowers greater than the no observed adverse effect level as established by the United States Environmental Protection Agency (U.S. EPA) for acute oral toxicity for adult honeybee. All insecticide products with active ingredients that act systemically and carry bee- or pollinator-protective label language noted in the law have the potential to lead to detectable levels of residues. A systemic insecticide is on that is both absorbed by the plant and translocated through the plant’s vascular system. Insecticides that work through translaminar absorption – moving into the leaf where the active ingredient remains for a period of time – are not considered systemic insecticides for purposes of this law.
Q. What is a “pollinator protection box” on the label? What does a “pollinator, bee, or honey bee precautionary statement” look like?
A. Certain pesticide product labels now carry a bee icon accompanied by a “bee box” containing information pertinent to protecting bees and other pollinators from acute pesticide exposure. In addition, product labels might contain a precautionary statement about product toxicity to bees. If you see any one of these on the label, the product should be carefully reviewed for active ingredients that may be systemic in character, and refrain from using it on plants intended for advertisement or labeling as attractive or beneficial to pollinators. Even if the environmental hazards section of the label indicates that toxicity is only associated with “bees exposed to direct treatment on blooming crops” or similar language, the presence of such a hazard statement is all that’s necessary to suggest the need for careful review of the active ingredient list on the insecticide product label for systemic insecticides that, if detected, may result in non-compliant labeling of plant material as attractive or beneficial to pollinators. Here are examples of relevant label indicators:
Q. Is there a list of systemic insecticides and their “no observed adverse effects” levels that, if plants are tested, might lead to questions about subsequent advertisement or plant labeling as attractive or beneficial to pollinators?
A. Because individual plant protection products may contain one or more insecticide active ingredients, and each product has specific labeling that may or may not include pollinator-protective language, it is best to check product labels for descriptions of potential systemic behavior of ingredients and pollinator-related text. The availability of “no observed adverse effects” values for acute oral toxicity for adult honeybees is dependent in part on the annual status of U.S. EPA review and testing of active ingredients. Check with pesticide product manufacturers for more information.
Q. Can I sell plants that have been treated with a systemic insecticide that doesn’t have bee- or pollinator-protective language on the product label?
A. Without complete records verifying that plant treatment occurred with a systemic insecticide that did not have bee- or pollinator-protective label language noted in the law, it may be difficult to prove that concentrations of the insecticide in plant tissue originated from specific products. It is the responsibility of the retailer to verify that any systemic insecticide products used did not have bee- or pollinator-protective language on the product label. Additionally, note there is no prohibition on selling plants treated with systemic insecticides – with or without bee- or pollinator-protective language on the product label – as long as they are not advertised as beneficial to pollinators.
Q. Who can test the flowers to verify the absence of a detectable level of insecticide covered by the law?
A. Those who source or sell plants can have plant flowers tested at laboratories providing such services. Analytical results may be requested and reviewed at the point of sale in Minnesota as part of compliance assistance or an investigation. The law specifies that only the flowers of plants are subject to the law’s provisions. In order to issue a defensible numerical value, a laboratory should report the “Limit of Quantification” for the method, along with the analytical results. In addition, the MDA may initiate sampling of plant flowers offered for sale and labeled as beneficial to pollinators to determine if there are systemic insecticide concentrations of concern.
Q. Who will bear the cost for sampling of plant flowers initiated by the MDA?
A. The MDA will bear the cost for all samples collected by the MDA.
Q. What if systemic insecticide concentrations are detected in plant flowers above the “no observed adverse effect level” for acute oral toxicity for adult honeybees, and I have labeled these plants as attractive or beneficial to pollinators, but can verify that both the source of my plant material and my own practices did not treat the plant material with systemic insecticide products having the indicated label language?
A. If you can verify through records presented to the MDA that neither your practices nor those of your sources resulted in treatment of plant material with systemic insecticides having the indicated label language, the MDA will consider the records in determining compliance with the law in the event that concentrations exceed levels of concern. Systemic insecticide contamination in plant material from sources other than treatment could include contaminated soil, irrigation water, and application equipment, or application drift from products applied to other plants. Plants (and their bedding material, containers, and treatment equipment) destined for labeling as attractive or beneficial to pollinators should be isolated during production and treatment from contamination from systemic insecticides that carry the indicated label language.
Q. What if I want to advertise plants that are bee or butterfly friendly?
A. A nursery that advertises plants as beneficial (including the term attracts) to pollinators will be expected to provide documentation on all insecticide products used in the production of those plants. In addition, the MDA may initiate sampling of the plant to determine if there are detectable levels of the specified systemic insecticides.
Q. What if the plants I am selling come from a source, or sources, such that I do not know the origin of the plants nor how they were produced?
A. The statute applies at the point of sale in Minnesota, no matter what the source or sources of the plants are, and the Minnesota vendor is responsible for compliance.
Q. What if my supplier provides tags or labels that advertise plants are beneficial or friendly to pollinators?
A. The seller at the point of sale is responsible for correct labeling. You may be requested to provide proof the plants have not been treated with a systemic insecticide and your plants may be subject to random sampling and testing to confirm there is no detectable level of systemic insecticide in the plants. If upon receipt of the plants you remove the tags, you would not be advertising that the plants are “beneficial to pollinators” and they would not be subject to testing.
Q. Can I advertise or tell my customers that I don’t use neonicotinoid or systemic insecticides on my plants?
A. You can only describe your plant production process such as “we don’t use neonicotinoid chemicals on our plants” or “we are committed to reducing the amount of neonicotinoids and/or systemic insecticides used in the production of our plants.” You cannot make any claims as to plant characteristics such as “free from,” “grown without,” “produced without the use of…” or other plant properties unless the plants are produced under a specific program approved by the commissioner to address the specific plant properties addressed in the special notation claim.
Q. What if I want to advertise my plants as “neonic-free,” “grown without pesticides,” “chemical free,” etc.?
A. Special claims for advertising or labeling plants are regulated by a different part of the Nursery Law: Chapter 18H.14 (c), that allows certified nurseries to use these special-claim programs provided the program is reviewed and approved by the Commissioner of Agriculture before implementation.
Q. How do I go about getting a special-claim program approved?
A. The department has developed a Compliance Agreement that is adapted case-by-case for each interested company. This document details specific requirements covering plant production and chemical treatment documentation for all plants a company seeks to advertise or label with some form of special-claim. If the company can meet the conditions, the Compliance Agreement is signed by a company representative and upon countersignature by the department becomes effective. It is effective for one year and is renewable providing all conditions of the Compliance Agreement can continue to be met.
Q. Is there a cost for a Compliance Agreement?
A. The Compliance Agreement costs $25. Staff must conduct a site inspection during Compliance Agreement development as well as random inspections during the year to document and audit plant production and collect plant samples. These activities are currently billed at $50/hour for travel and inspection time plus the IRS mileage rate for mileage to and from the facility; typically from the closest nursery inspector’s office. Plant samples will be collected as part of the treatment audit process. The cost of laboratory testing will be paid by the company. At this time these costs have not been finalized.
Q. Who do I contact if I have questions about insecticides?
Q. Who do I contact if I have questions about advertising, special labeling claims or compliance agreements?
Q. Who do I contact if I have questions about pollinator habitat Best Management Practices?
A. Trisha Leaf at Trisha.Leaf@state.mn.us or telephone number 651-201-6349.