So, as you can see, unless you are going to sell annuals, cut flowers, seeds, plants without roots or indoor perennials you are going to be selling nursery stock and will need a license.
There are 3 categories of licenses: 1)registered; 2) certified and; 3)institutional. Registered is a nursery of 1 acre or more and sells only inside the State, certified is a nursery of 1 acre or more and sells inside and outside the State and institutional is a government owned or operated nursery. You can also be a nursery dealer, meaning that you don’t grow or collect the plants, you purchase them from someone else and sell them. If you collect plants, you have to get a collected plants certificate which states that you have not collected any plants in violation of the plant pest regulations. OK – That is a lot of information, however, it really boils down to 2 decisions – are you going to sell outside of the State? And, are you going to grow your own plants or buy them from someone else? Once you answer those two questions, you know what kind of license you need. The State charges a fee for each license and requires an inspection of the nursery. If you are going to have a registered license the nursery is inspected every 3 years. If you are going to have a certified license, the nursery is inspected every year. 2. If you are going to grow your own plants, you need to know about Plant Patents. There is a federal law – 35 United States Code 161 – that allows people to patent plants. What does that mean? It means: The Government grants a patent to someone who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the patent owner’s right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any part thereof, into the United States. In order to patent a plant: The subject matter of the application would be a plant which is developed or discovered by the inventor, and which has been found stable by asexual reproduction. To be patentable, it is also required: · That the plant was invented or discovered in a cultivated state, and asexually reproduced. · That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke; · That the inventor named for a plant patent application must be the person who actually invented the claimed plant, i.e., discovered or developed and identified or isolated, and asexually reproduced the plant; · That the plant has not been patented, in public use, on sale, or otherwise available to the public prior to the effective filing date of the patent application with certain exceptions; · That the plant has not been described in a U.S. patent or published patent application with certain exceptions; · That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.; and · That the invention would not have been obvious to one having ordinary skill in the art as of the effective filing date of the claimed plant invention. What exactly is asexual reproduction? Asexual reproduction is the propagation of a plant without the use of fertilized seeds to assure an exact genetic copy of the plant being reproduced. Any known method of asexual reproduction which renders a true genetic copy of the plant may be employed. Acceptable modes of asexual reproduction would include but may not be limited to: rooting cuttings, divisions, layering, grafting, budding, bulbs, slips, rhizomes, corms, runners, etc. Again, a lot of information. What does it mean? Well it means a few very important things to someone wanting to sell plants. First it means that you can’t sell a plant if someone has a patent for that plant without their permission or it’s a crime. Second, you can’t patent a natural, uncultivated plant. For example, you can’t patent a white pine tree. Why? Because it grows in nature, uncultivated. A great example of where plant patents are prevalent is with roses, tulips and irises.
So, how do you know if a plant is patented? Anyone who sells a patented plant is supposed to have it labeled with PP (plant patent) and the patent number like the image below.
You can also see on this label it specifically says "propagation prohibited".
The name also includes "hybrid". Any hybrid should be an immediate red flag for you to check out whether or not it is under patent. You may also see PPAF – this means “plant patent applied for”. Another red flag is PBS or PIP. Basically groupings of letters on the label starting with a “P” should be a red flag for you. A plant name can also be trademarked ™ which is another a red flag because, at some point, it has been patented. Remember – the patents are good for 20 years so a TM does not always mean the plant is still off limits. It is the grower’s/seller’s responsibility to determine whether or not a plant is patented. Ignorance cannot be pled as a defense. 3. Decide what you are going to offer for sale. This might be the hardest thing you do. Do you grow vegetables, indoor plants, succulents, shrubbery, trees, or all of the above? My advice is to grow what you are interested in and what you think you can sell (maybe not in that order) and don’t go overboard. It’s not a bad thing to start small and build. If you are unsure, watch trends. Right now succulents and indoor plants are booming. Annuals are always a hit. So are seasonal plants, like the fall mums. 4. Decide if you are really up for the task. Having a nursery sounds exciting and fun and almost meditative. The reality can be and often is quite the opposite. Plants require lots of care. They have a variety of needs including moisture, nutrients, pest and fungus control, sunlight and temperature. You have to figure out their needs and then meet them and that can take a lot of time and work. If you have decided to grow your own plants, that adds another layer of care and work to the equation. Seeds can be fickle and hard to grow and even when they germinate the resulting plant may not thrive. Rooting is hard and takes a lot, a lot of practice and attention and even then has a high rate of failure. It’s the same with cuttings and generally any other type of propagation. I’m not saying this to be a Debbie downer or to discourage a would-be gardener. I simply want the blinders to be off so that when you make the decision to include a nursery in your farm or homestead you are ready to devote the time and attention needed for it to be successful. With the right planning and some good ole fashioned work, a nursery can be a great addition to a farm or homestead and a source of steady income.
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