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Sunday, 12 January 2020

Selling plants - Working with plants - new Law - what you need to know!

There is now a  newer post, on this subject, but I'm leaving this one up, because a lot of people have linked to it.

Heads up, folks: a new law came into operation on 14th Dec 2019 and ALL OF US who sell plants and ALL OF US professional gardeners need to know about it, and understand it.

DISCLAIMER:  This is the best information that I have as of today, but cannot be taken to be legally binding in any way!! Don't take my word for it, don't base your opinion on what "other people on the internet" are saying, go and read it for yourself.

Here's the link to the Directive:

Like all government statements, it's badly written, and at first sight is contradictory, confusing, and frustrating, but stick with it and read it all the way to the end. 

Right, have you read it? Are you crying quietly, or sobbing wildly? Never mind, be strong, we will find a way to work together to make things right, but let's start by running through the basics.

There are two points to this that need thinking about - selling plants, and working with plants.

1) SELLING PLANTS

This bit affects all of us who sell a few plants as a hobby, as a small off-shoot of our business, to supplement our job/pension, or for charity.

What does it mean? In short, every plant which moves around the country, now has to have a Plant Passport (PP), so that its movements can be tracked. That means into and out of the country, and movements within the country.

Who is doing all this?  APHA = Animal and Plant Health Agency,  the government organisation responsible for implementing this Directive.

Why are they doing it?  Duuuh, to control the spread of pests and diseases. Remember when Ash Dieback appeared from nowhere, rushed across the country and devastated half of our Ash trees? We, in the UK, demanded that something be done about it, and this is it.   However, the powers that be didn't quite think it through properly: I honestly believe that they had no idea just how many people in the UK grow plants and sell/swap/trade them. So they've produced legislation that appears, to us, to be extremely heavy handed. But take heart, they are listening to our pleas, and have already made concessions to the interpretation of the Directive. More of that below.

So what do we have to do?

It's a two-stage process:  Registration and then Authorisation.  All plant sellers have to be registered, and many of them have to further be authorised to create the Plant Passports (PPs).

You can't be Authorised without being Registered first, and there are going to be a whole lot more people just Registered, than there will be who are both Registered and Authorised. You'll see why, in a tick.

So do we really all have to Register?

Yes, anyone who sells plants, or swaps them, or gives them away to charity, has to Register. Don't scream at me, I didn't make this law!

What, all of us?

Yes, even if you only sell a couple of plants a year.
Yes, even if you sell for charity or not to make a profit.
Yes, even if you propagate them yourself. Especially if you propagate them yourself!
Yes, even if you are a hobbyist, or a specialist, or a small business, or self-employed, or a small nursery, (or a big nursery!), or a club or group: if you do it as a hobby, as a business, as a way of earning a few bob on the side. In ALL of those cases, you - the person who grows the plant and sells it, or trades it, or swaps it - have to be Registered with APHA.

If you then sell the plants "online", and by that they mean if you post them (and yes, that includes courier/horse and trap/sending your mate on his moped - anything other than face-to-face) then the plants now have to have PPs, and you will have to get Authorisation to issue those PPs.


What plants are included?

All of them. The Directive starts off (misleadingly) by saying "Plant passports are an EU official document to move regulated plants and plant products within the EU. If you’re based in England and Wales and you’re moving plants or plant products in the EU they may need plant passports." (Scotland is having a similar but slightly different system)

Many people are reading that first paragraph, and pick up the phrase "regulated plants", and say "ah, but I don't sell any regulated plants, I only sell common everyday plants, they're not on a regulated list". Wrong! Further on, the Directive states that regulated plants includes:

"all plants for planting
- some seeds
-  seed potatoes
-  some fruits with peduncles attached"

I think we can all agree that "all plants for planting" covers everything from annuals, perennials, bulbs, shrubs, trees etc. No loophole there, sorry.

Isn't it just for online sales?  Not quite: it's for "distance sales" which means anything other than face-to-face sales, where you physically hand the plant to the person who is going to plant it in their garden. So if you advertise them online, on your website, on ebay/gumtree etc, or if you advertise in a specialist magazine, or if you belong to a specialist plant group who have members all over the country: regardless of  how you advertise them,  if you send the plants out by post/courier etc, then in addition to getting Registration, you also have to get Authorisation, so that you can issue PPs.

If  you only sell/swap face to face, then you only need to do Registration.

What about buying plants from a retailer, and selling them on?

Plants which you buy from wholesalers, trade retailers etc will all have their own PPs on them when you buy them.  If all you do is buy them, and then sell them on locally, face to face, you need to do Registration but not Authorisation.

What about if I buy in plugs and grow them on, or buy in a big plant and split it, and then sell it? 

Oooh, now it's getting complicated. If you buy a tray of plants and divide them up before selling onwards - whether that's by post or face to face - then the plants "no longer meet the definitions of their original plant passport." so you will have to be Authorised to re-PP them.  Same if you buy a big plant and split it up: you've "changed" the plant, so its old PP is no longer valid, and if you want to sell it on, whether that's by post or face to face. Either way, you will still need to be Registered.

OK, everybody still with me? Two layers of bureaucracy:

A) Registration first (quick, free, easy) and then

B) Authorisation (quick, easy, darned expensive) if you buy plants and change them (ie grow them on, split them up etc) regardless of  how you sell them, OR if you grow your own plants and then sell them via post/courier, ie anything other than a face-to-face transaction.

It's pretty clear that we all have to do Registration, but that most of us will be able to stop there, and not go on to Authorisation.

However, those who propagate rare plants, or who live in the back of beyond, and who rely on the wide marketplace that the internet gives us, to get customers, and to get good prices, and who therefore have to send plants out by post: well, at the moment, this Directive is the Death Of Plant Sales to those people.

Why? Read on....

So, how do get these Plant Passports then?

Good news: we can issue them ourselves. Bad news: to do so, first we have to "Register" as Plant Sellers (free, easy, do it online, quick) then we have to apply for "Authorisation", which is a licence to create PPs, and that part is hideously expensive and complicated. The application itself is quick and easy, you get approval in 5 days, BUT then you have to be inspected. And the inspection could cost as little as £123.16, but could cost a great deal more, as - get this - they charge for inspections at a pile-it-up rate of £61.50 for every 15mins of the inspection, INCLUDING travel time (bastards), and doing the paperwork afterwards. Others have already worked out that if you are a long way from one of the APHA offices it could cost as much as £900 for an inspection, and they occur 2-4 times a year. Or less. Or more.  Once inspected, and approved, you can then print your own PPs, which are very specific, and are described in detail in the Directive.

So, to summarise: this is DEATH to plant sales via post.

I can't think of anyone I know who sells enough plants by post to make it worth while getting authorisation. 

"But ebay and facebook still have lots of plants for sale with no mention of PPs, why shouldn't I carry on?"

You're on your own on this point: I can't offer any advice, it's up to you.  Personally I'm not actively selling anything by post until I know what's going on for sure:  but it has been said, with fair accuracy, "how on earth are they going to know?"

But I only sell half a dozen a year - surely they don't need me to Register? 

Yes, they do. *sigh* Look at it this way: it's free to Register, it takes about two minutes to do it online, and if there's an outbreak of anything nasty, they can contact everyone in that area and warn them about it. It's not like Big Brother Is Watching You Grow Your Plants - they just need to know who is moving plants from one place to another, and the first step is to get everyone who passes plants on, whether for money or love, onto a list.

What about us Professional Gardener who buy plants for our Clients, or for our neighbours if they can't get out?

Well, it doesn't matter if we make a profit on the sales or not, it's all to do with the plants already having a PP.  APHA say:

 "You are ok to buy for your neighbours and for your clients, as you are essentially the “end user” of the Garden Centre, so they do not need to supply you with one." [ie PP]

APHA seem to count that as a separate transaction - so buying them from the garden centre is one face-to-face transaction, no PP required, then we sell them to our Clients, face-to-face, no PPs required. As long as we don't split up a tray, grow on plug plants, or divide a bought plant before passing it to the Client.

One thing to look out for, though, is that retailers (garden centres, B&Q etc) take delivery of plants with PPs attached, but already people are reporting that some trade suppliers are selling trays of plants to the garden centres with one PP for the whole trolley: and as the gardener centres are selling them to us - the "end user" - face to face, they don't need to give us the PP.  So, each individual plant does not necessarily have a PP on  it.  If you think that you are going to grow on some bought plants, or split them, or propagate from them, then you will need to ask the garden centre etc to give you a PP, and I can see this being a bit of an issue.
 

Points of note: this is an EU Directive, that means it was created by the EU but don't start with the "oh but we're leaving the EU" , because a) virtually all EU directives are being transferred to UK law as we speak and b) we, the UK, and specifically the HTA (Horticultural Trades Association), are the ones who asked for this Directive.

What exactly is a "Directive" and is it actually law?

"Directives lay down certain results that must be achieved but each Member State is free to decide how to transpose directives into national laws" so the directives turn into laws, usually pretty much unchanged

"What idiot asked for this?" see above - we did!

"But why?" Remember Ash dieback and how we all screamed about imported plants bringing disease into the UK? That's what prompted it, so let's not all whine too much about it, it's for our own protection.

I know it seems heavy-handed (and it is) but it's intended to provide full traceability for all plant movements other than very local.

And if, like me, you're pulling out your hair and screaming "why did no-one tell us about this?" well, it was put together and issued THREE YEARS AGO.  If you've followed my link, and actually read the thing, you will have  noticed that the webpage in question was published on the 29th July 2015.

So the government gave us all well over 3 years grace to get ready for it. Pity no-one actually publicised it, eh? If you want to know what the government is going to introduce in the way of new laws, you have to be extremely vigilant, persistent, and have a private income because you would need to spend all day every day trawling the government websites to spot new things as they go through the system. It's simply not practical for us, at ground level, and I must say I'm pretty pissed off with people like the RHS and the various gardening organisations, for failing to even mention this to their members.

Ah, but now, once they have a list, they have no excuse for not communicating this sort of thing to us.

Oh, and a final annoyance: what are the penalties for non-compliance? Well, they're not stated, are they, so they could be anything!!

2) WORKING AS A PROFESSIONAL GARDENER

There's another aspect of this wretched Plant Passports business that has slipped by: I was just looking idly at the registration form, and look what I found:




 

the very first line is:

"You will need to complete this form if you are professionally involved in planting, producing, breeding, moving, storing, dispatching or processing of plants or plant products."

Errr, doesn't that mean that every Professional gardener in the UK will have to do Registration?

To my knowledge, no-one in the gardening world has mentioned this over the past three years - not the PGG (Professional Gardeners' Guild - mostly for employed Estate gardeners), not the GG (Gardeners' Guild, I think this one is just for self-employed gardeners), not the WFGA (fantastic charity gardening organisation for amateurs and professionals alike, focusing on training and improvement), nor, to my knowledge, anyone else.

Maybe I was wrong, then: surely the government can't introduce compulsory Registration of all professional gardeners without telling them about it beforehand? So I emailed APHA and asked:

"Does this mean that every single professional gardener in the UK, whether self-employed or employed, needs to individually register?"

And a Jack Butcher of APHA responded:

"You are correct, all professional gardeners in the UK, need to register.

"You can register to become a Professional/Registered Operator or to become the former and an Authorised Operator.

"To register and become a Professional/Registered Operator, you will need to complete one form, Application for Official Registration form.

"To register and become a Professional/Registered Operator and an Authorised Operator who is authorised to issue Plant Passports, you will need to complete two forms, Application for Official Registration form and Application for Authorisation form."

I checked with APHA, and yes, it's the same forms as for plant sales. I further asked them if I, as a professional Gardener, therefore have to fill in two forms, one for being a Gardener, and one for private plant sales, and they said yes! Bizarre, eh?

Again, I honestly believe that APHA dropped the ball here, and completely overlooked the huge number of individual Professional Gardeners to be found in the UK.

Some weeks later I was contacted by my local APHA Inspector ("ooooooooooo!") who very nicely asked me if I had any further questions, and of course I had dozens.  One of them, expressing my concern about how APHA have completely failed to contact individual gardeners, and asking how on earth they thought they were going to do so, was passed by my Inspector to someone else in APHA, presumably someone higher up the chain, and I received this reply from Dan Munro of APHA:


"Hi Rachel
In reply to your questions:
1. The scheme does not apply to ‘every employed and self-employed professional gardener’. Only those that carry out commercial contracts, planting on ‘3rd Party land’ are affected e.g. Council Land or planting on behalf of Building firms. Building firms doing their own planting would not be affected. Gardeners working for Private individuals are not affected."

So there you have it, more "beep beep" noises as they reverse away from their earlier comments.
All of us "private" gardeners, whether employed or self-employed, do NOT have to Register with APHA.
Unless we also sell plants, in which case yes, we do: as mentioned above, and here's the direct link to the form: scroll down to Documents, and click on the first one, Ref: AppREG . It should open as a pdf, you can type direct into the boxes:  save it somewhere safe, then email APHA and attach your completed pdf to the email.

A couple of days later, you'll get  your Registered Professional Operator number, which can then be proudly displayed on all your paperwork.  (yes, I'm laughing as I say that.)


Oh, and if you have no  idea where to find your "ten figure grid reference" , go to something like google maps, find your home, zoom right in and double click on the road, then look at the page address bar at the top of the screen.  It will say something like https://www.google.com/maps/place/(yourtown)/@... and then a string of numbers. Those numbers are your grid reference, and the form wants the first five of each half of the reference.   That is, if the reference numbers are something like:

@51.5056252,-0.2307532,

then they want you to type in 51505 from the first set, and the first five after the comma, ie 02307.

There you go, no excuse now!

So there you have it: going by the number of plants for sale on ebay yesterday (over 76,000 listings) there are an awful lot of people who are going to be affected by this.  It is possible that APHA might agree to producing a hard and fast list of susceptible plants, and that anyone who grows things not on the danger list maybe doesn't have to issue PPs to sell them via post: or maybe even not be Registered.  I can't quite see all those dear elderly ladies who pot up a few bits for the village plant sale, having to be Registered before they can do so... it's just ridiculous.

So there are a lot of aspects of this new law which might change: there has been a perfect storm of emails, forum posts and comments starting "...but APHA told me...." and they have already made a few changes to their interpretation. I am quietly hopeful that there will be more changes yet to come, making it simpler.


It might be a while before we get all the answers: it would seem that APHA are somewhat inundated with emails asking questions and - no doubt - complaining bitterly about it, to the point where they are now apparently responding with a form email saying "we are seeking clarity and will get back to you in due course".

In the meantime, I am taking the advice of, and following the example of, a lady called Daniela who said:  "There is so much misinformation floating about it’s mind boggling. When I try to educate I am told that I am incorrect. Oh well. I tried. I am not going to lose anymore sleep over it. I am registered. I am aware. I am not going to spend much more time on it. I see plants, seeds and bulbs sold with and without PP. It’s not working me up anymore. I am doing my bit. That’s all I can do."

Yay, Daniela! That's where I am going to be, until such time as APHA get some "clarity" and stop contradicting themselves and just muddying the waters until none of us can see where we are going, and all of us are thoroughly sick and tired of the whole thing.


So do please keep coming back to this article to check for updates.




2 comments:

  1. Thank you so much for taking the time to write that useful and informative post. I am in the early stages of setting up a little plant business and so have been doing my own research into plant passporting and I found the info on the new legislation very confusing and overwhelming, thanks for unpicking it!
    I have a question that I hope you can help with - I hope to set up a local plant subscription service, order plants from suppliers and then deliver all plants in person (on my bike) to the customer. Will this count as a face to face transaction and mean I just need to register with the APHA but not sign up to the entire passporting scheme? Many thanks, Aimee

    ReplyDelete
    Replies
    1. Hi Aimee,

      One thing I have learned about APHA/the government/DEFRA etc is that they change their minds as the wind blows.

      So the most sensible advice I can give you is to do the Registering process, the first one: get yourself Registered as a Plant Seller.

      Then wait for your local Inspector to contact you, and explain to them exactly what you are planning to do, and see what they say.

      From everything I have read so far, it sounds as though you would need to Register as a Plant Seller, but would not need to issue PPs as you are not selling them by post.

      But don't take my word for it!!!! And good luck with the business!

      Delete

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