There are many legal issues associated with plants and plant collections, which are relevant to both Collection Holders and the keen plantsperson.
This page covers: Plant collection from the wild, CITES and the Nagoya protocol, invasive species legislation, Plant Breeder's Rights, rules on importing plants and seeds from outside the EU, and Plant Passports for moving plants within the UK and EU, post Brexit arrangements.
Protected species - CITES
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement that came into force in 1975. The import, export and use for commercial gain of certain species requires a CITES permit. For plants, the list includes mainly orchid, cacti, succulents, medicinal plants and cycads. See the links below:
As of January 1st 2021, the designated list of entry points for CITES species is changing.
Access and Benefit Sharing (ABS) - the Nagoya Protocol
The Nagoya Protocol is an agreement that is part of the Conventional on Biological Diversity (CBD), which deals globally with the fair and equitable sharing of benefits arising from the utilisation of genetic resources. Since 12 October 2014, this legally binding international agreement covers wild collecting of plants and associated traditional knowledge from more than 100 signatory countries.
It is your responsibility to ensure that you have undertaken the necessary steps to legally obtain and utilise plant material. You will need to obtain prior informed consent from the owner of those resources, on mutually agreed terms. For example, should a plant-hunting trip be organised to country X to collect seed of species Y, it will be necessary to find out what the legal requirements with regard to plant collecting and ABS are in that country.
Plant collecting in the UK
In Britain, it is illegal to "uproot any wild plant without permission from the landowner or occupier”. Harvesting other parts such as leaves, flowers or seed is allowed. However, this does not apply to land designated a SSSI or National Nature Reserve, where it is illegal to pick any part of a plant. In addition, local bylaws often apply to nature reserves or National Trust land which forbids plant collection.
There are also certain species for which wild collection is forbidden - largely orchids, ferns and other rare taxa. See the list here.
There are some species which are illegal to import, grow or sell in the UK because of the threat of them getting out into the wild and becoming invasive. Full guidance on the species covered (which include some well known garden plants) is provided by the RHS.
Plant Breeders Rights
Plant Breeders’ Rights or Plant Variety Rights (PBR - usually written as PBR) are granted to new cultivars in order to give the breeder exclusive control over the propagating material from that plant for a certain number of years. If you have cultivars with PBRs you should be aware of restrictions on the propagation and sale of these plants. For more information on how PBRs are assessed, see the NIAB website. You also may want to apply for PBR on cultivars that you have bred. More information can be found on the relevant DEFRA page. There is also useful information in this article from our Journal.
Plant passports and cross border import/export
DEFRA are providing updates regarding Brexit and its effects on plant movement between Great Britain, Northern Ireland and the EU. From January 1st 2021 there are new requirements for importing and exporting plants. Please see the link above for details.
Importing plants and plant material.
On the 14th December 2019 new EU Regulations came into force which both update and change the way plant movements can occur (commonly known as Smarter Rules for Safer Food (SRSF)).
Any plants, seeds or bulbs intended for planting, brought in to the UK will require a customs check. They will need a phytosanitary certificate, issued by the origin country – full guidance available here. Also some high risk genera will require the exporting country to provide a risk assessment on the genus before allowing the import to the EU so you will need to check the provisional list of genera requiring a risk assessment (in annex 1).
Plants and plant products (other than plants for planting) up to 2 kg in weight will be allowed in passenger luggage but this will also require a phytosanitary certificate. Failure to declare will result in the goods being confiscated.
Plant Passports for movement within the UK/EU
From 14th December 2019, plant passporting is extended to all genera and to movements both within the UK and across EU borders in order to ensure traceability of plants through the trade.
As of January 1st 2021, the UK plant passport has replaced the EU plant passport.
Any professional operator moving or selling plants, cuttings, bulbs and some seeds (list below) and plant products to another professional operator will require authorisation to issue plant passports from APHA Plant Health. A list of the plants, seeds and plant products covered by the legislation is here. The plant passport will have to be applied to each of the lowest trade units such as an individual plant in a pot, or tray of plugs.
This does not apply to plants sold retail, (face-to-face), to the final user, but it will apply to internet/mail order sales and sale to a retailer. If you only sell retail, you need to apply for 'official registration' as a professional operator, which is free.
If you send plants through the mail but without any money changing hands (except to cover postage and packing) you do not require a plant passport.
More information, plus guidance on who is classed as an amateur, therefore not needing to issue plant passports on the DEFRA website.
Follow this link to register as a professional operator, or to become an authorised issuer of plant passports.
See below for more definitions of some of the terms mentioned above.
The requirement to notify APHA Plant Health of the movement of some genera into the UK from the EU will still apply, notification must be made before or within 3 days of arrival
For more details see DEFRA website.
‘plants’ means living plants and the following living parts of plants:
(a) seeds, in the botanical sense, other than those not intended for planting;
(b) fruits, in the botanical sense;
(d) tubers, corms, bulbs, rhizomes, roots, rootstocks, stolons;
(e) shoots, stems, runners;
(f) cut flowers;
(g) branches with or without foliage;
(h) cut trees retaining foliage;
(i) leaves, foliage;
(j) plant tissue cultures, including cell cultures, germplasm, meristems, chimaeric clones, micro-propagated material;
(k) live pollen and spores;
(l) buds, budwood, cuttings, scions, grafts;
‘plant products’ means unmanufactured material of plant origin and those manufactured products that, by their nature or that of their processing, may create a risk of the spread of quarantine pests.
‘trade unit’ means the smallest commercial or other useable unit applicable to the marketing stage concerned, which may be the subset or the whole of a lot;
‘professional operator’ means any person, governed by public or private law, involved professionally in, and legally responsible for, one or more of the following activities concerning plants, plant products and other objects:
(c) production, including growing, multiplying and maintaining;
(d) introduction into, and movement within and out of, the Union territory;
(e) making available on the market;
(f) storage, collection, dispatching and processing;
From the guidance for amateurs/hobbyistsYou’re likely to be a professional operator if:
• you regularly sell plants or plant products with a view to making a profit or earn
commission from selling plants or plant products for other people or;
• your plants and plant products are clearly advertised as for sale to professional
• you grow or produce plants or plant products to sell regularly with a view to making a
• you are paid for a service (e.g. landscaping) you provide relating to plants or plant
You may be considered to sell regularly with a view to making a profit if you:
a. Have a website or social media account devoted to trading plants or plant products or;
b. Have a price list for the plants or plant products you sell or;
c. If you advertise plants for sale on a regular basis.
The following seeds require passports:
- Allium (Onion, chives, shallots, leeks etc.)
- Brassica napus (oilseed rape)
- Brassica rapa (Field mustard)
- Capsicum annuum (Peppers)
- Glycine max (Soybean)
- Helianthus annuus (Sunflower)
- Linum usitatissimum (Flax/linseed)
- Medicago sativa (Alfalfa)
- Oryza sativa (Rice)
- Phaseolus coccineus (Runner bean)
- Phaseolus vulgaris (French beans)
- Pisum sativum (Peas)
- Prunus avium (Wild flowering cherry)
- Prunus armeniaca (Armenian plum/Ansu apricot)
- Prunus cerasus (Sour Cherry)
- Prunus domestica (Common plum)
- Prunus dulcis (Almond)
- Prunus persica (Peach)
- Prunus salicina (Chinese/Japanese plum)
- Solanum lycopersicum (Tomato)
- Seeds of Solanum tuberosum (True seeds of potato)
- Sinapis alba (White mustard)
- Vicia faba (Broad bean)