The Marketing of Ornamental Plant Propagating Material Regulations 1999

Title, commencement and extent E+W+S

1.—(1) These Regulations may be cited as the Marketing of Ornamental Plant Propagating Material Regulations 1999 and shall come into force on–

(a) in the case of all provisions other than regulation 7 and regulation 9, 1st July 1999;

(b) in the case of regulation 7, 1st August 1999;

(c) in the case of regulation 9, 31st December 1999.

(2) These Regulations extend to Great Britain.

Interpretation E+W+S

2.—(1) In these Regulations, unless the context otherwise requires–

• [F1 “Directive 77/93/EEC" means Council Directive 77/93/EEC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the CommunityF2 ;]

• “Directive 98/56/EC" means Council Directive 98/56/EC on the marketing of propagating material of ornamental plants F3 [F4 , as last amended by Regulation (EU) No 652/2014 of the European Parliament and of the Council];

• [F5 “Directive 2000/29/EC” means Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community;]

• “inspector" means any person authorised by the Minister to be an inspector for the purposes of these Regulations;

• “lot" means a number of units of a single commodity, identifiable by its homogeneity of composition and origin;

• “marketing" means holding available or in stock, display with a view to sale, offering for sale, sale or delivery by a supplier to another person;

• “the Minister" means, as respects England, the Minister of Agriculture, Fisheries and Food and, as respects Scotland or Wales, the Secretary of State;

• “propagating material" means plant material intended for–

  (a)

  the propagation of ornamental plants; or

  (b)

  the production of ornamental plants; however, in the case of production from complete plants, the material used shall only be considered to be propagating material if the resulting ornamental plant is intended for further marketing;

• “propagation" means reproduction by vegetative or other means;

• “Regulation 2100/94" means Council Regulation 2100/94/EC on Community Plant Variety Rights F6 ;

• “supplier" means any person professionally engaged in the marketing or in the importation from third countries of propagating material; and

  “third country" means a country other than a member State.

(2) Any reference in these Regulations to a numbered regulation is a reference to the regulation so numbered in these Regulations.

Textual Amendments

F1 Words in reg. 2(1) omitted (E.) (1.6.2018) by virtue of The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), regs. 1(2), 26(2)(a) and (S.) (17.11.2018) by virtue of The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(2)(a)

F2 O.J. No. L26, 31.1.77, p. 20, as last amended by Commission Directive 98/2/EC (O.J. No. L15, 21.1.98, p. 34).

F3 O.J. No. L226, 13.8.98, p. 16.

F4 Words in reg. 2(1) inserted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), art. 1(2), reg. 26(2)(b)

F5 Words in reg. 2(1) inserted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), regs. 1(2), 26(2)(c) and (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(2)(b)

F6 O.J. No. L227, 1.9.94, p. 1, as last amended by Council Regulation 2506/95/EC (O.J. No. L258, 28.10.95, p. 3).

Marketing requirements and exceptions E+W+S

3.—(1) Subject to paragraph (2) below, no supplier shall market any propagating material unless it complies with the requirements of these Regulations.

(2) These Regulations shall not apply to propagating material intended for–

(a) export to third countries, if identified as such and kept sufficiently isolated from plant material not intended for such export;

(b) trials or scientific purposes;

(c) selection work;

(d) use in the conservation of genetic diversity.

Quality requirements for propagating material E+W+S

4.  Propagating material shall, when marketed–

(a) be substantially free from any defects likely to impair its quality as propagating material and in particular, at least on visual inspection, be substantially free from any harmful organisms impairing quality, or any signs or symptoms of such organisms, which reduce its usefulness;

[F7 (aa) in respect of the genera and species listed in column 1 of the table in schedule 2 (organisms and diseases), be free from the organisms and diseases listed in the corresponding entry in column 2 of that table;]

(b) have satisfactory vigour and dimensions in respect of its usefulness as propagating material;

(c) in the case of seeds, have a satisfactory germination capacity;

(d) have satisfactory identity and purity relative to the genus or species or group of plants to which it belongs; and

(e) if marketed with reference to a variety pursuant to regulation 11, have satisfactory varietal identity and purity.

Textual Amendments

F7 Reg. 4(aa) inserted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(3)

Further provisions relating to citrus propagating material E+W+S

5.  In addition to meeting the requirements of regulation 4, citrus propagating material shall–

(a) have been derived from initial source material which has been checked and found to show no symptoms of any viruses, virus-like organisms or diseases;

(b) have been checked and found to be substantially free of viruses, virus-like organisms and diseases since the beginning of the last cycle of vegetative growth; and

(c) where grafting has taken place, have been grafted on to rootstocks of a kind which are not susceptible to viroids.

Further provision relating to flower bulbs E+W+S

6.  In addition to meeting the requirements of regulation 4, flower bulbs shall have been derived directly from material which, at the time the crop of bulbs concerned was growing, was checked and found to be substantially free from any harmful organisms and diseases or any signs or symptoms of such organisms and diseases.

[F8 Further provision relating to Palmae: England and Wales E+W

6A.— (1) In addition to meeting the requirements of regulation 4, propagating material of Palmae belonging to the genera and species referred to in the Annex to Commission Directive 93/49/EEC setting out the schedule indicating the conditions to be met by ornamental plant propagating material and ornamental plants pursuant to Council Directive 91/682/EEC and having a diameter of the stem at the base of over 5 cm must meet the condition set out in paragraph 2 or the conditions set out in paragraph 3.

(2) The condition is that the material has been grown for its entire life in an area which has been established as free from the organism by a responsible official body in accordance with relevant International Standards for Phytosanitary Measures.

(3) The conditions are that the material has been grown in the two years prior to its marketing in a site subject to visual inspections carried out at least once every four months confirming the freedom of that material from the organism and it has been grown in a site—

(a) with complete physical protection against the introduction of the organism, or

(b) where the appropriate preventative treatments have been applied with respect to the organism.

(4) For the purposes of this regulation—

“International Standards for Phytosanitary Measures” means International Standards for Phytosanitary Measures prepared by the Secretariat of the International Plant Protection Convention established by the Food and Agriculture Organisation of the United Nations;

“the organism” means “Rhynchophorus ferrugineus (Olivier)”;

“responsible official body” means a body described in Article 2(1)(g) of Directive 2000/29/EC.]

Extent Information

E1 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F8 Reg. 6A inserted (E.W.) (1.10.2018) by The Marketing of Ornamental Plant Propagating Material (Amendment) (England and Wales) Regulations 2018 (S.I. 2018/974), regs. 1(1), 3

[F19 Further provisions relating to propagating material of Palmae S

6A.— (1) In addition to meeting the requirements of regulation 4, propagating material of Palmae belonging to the genera and species listed in column 1 of the table in schedule 2 (organisms and diseases) under the heading “the following genera and species as regards Palmae”, and having a diameter of the stem at the base of over 5 cm must comply with—

(a) the requirement in paragraph (2); or

(b) the requirements in paragraph (3).

(2) The requirement is that the material must have been grown throughout its life in an area established as free from the organism listed in the corresponding entry in column 2 of the table in schedule 2 by the responsible official body in accordance with relevant International Standards for Phytosanitary Measures.

(3) The requirements are that the material must, during a period of at least two years prior to marketing, have been grown in a site within the EU with—

(a) complete physical protection against the introduction of the organism listed in the corresponding entry in column 2 of the table in schedule 2; or

(b) the application of appropriate preventive treatments against that organism,

and have been subject to visual inspections carried out at least once every four months to confirm freedom of that material from that organism.

(4) In this regulation—

“International Standards for Phytosanitary Measures” means International Standards for Phytosanitary Measures prepared by the Secretariat of the International Plant Protection Convention established by the Food and Agriculture Organization of the United Nations; and

“responsible official body” means either the body described in paragraph (i) or a body described in paragraph (ii) of Article 2(1)(g) of Directive 2000/29/EC.]

Extent Information

E5 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F19 Reg. 6A inserted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(4)

Registration E+W

7.—(1) Subject to paragraph (2) below, no person shall carry on business as a supplier unless he is registered as such by the Minister.

(2) Paragraph (1) above shall not apply to a supplier marketing only to persons who are not professionally engaged in the production or sale of ornamental plants or propagating material.

(3) An application for registration as a supplier shall be made in writing and shall be accompanied by the following information–

(a) the name of the applicant;

(b) the address of the main premises at which the applicant carries on or intends to carry on business as a supplier;

(c) the activities which the applicant carries on or intends to carry on which are or will be covered by these Regulations.

(4) Registration of a supplier on the register referred to in [F9 regulation 15 of the Plant Health (Great Britain) Order 1993 ]F10 [F9 article 25 of the Plant Health (England) Order 2015] is deemed to constitute registration for the purposes of paragraph (1) above.

(5) A supplier registered in accordance with this regulation shall keep records of his sales and purchases of propagating material and shall retain them for a period of not less than 12 months.

Extent Information

E2 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F9 Words in reg. 7(4) substituted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), regs. 1(2), 26(3)

F10 S.I. 1993/1320; amended by S.I. 1993/3213, 1995/1358 and 2929, 1996/25, 1165 and 3242, 1997/1145 and 2907 and 1998/349, 1121 and 2245.

Registration S

7.—(1) Subject to paragraph (2) below, no person shall carry on business as a supplier unless he is registered as such by the Minister.

(2) Paragraph (1) above shall not apply to a supplier marketing only to persons who are not professionally engaged in the production or sale of ornamental plants or propagating material.

(3) An application for registration as a supplier shall be made in writing and shall be accompanied by the following information–

(a) the name of the applicant;

(b) the address of the main premises at which the applicant carries on or intends to carry on business as a supplier;

(c) the activities which the applicant carries on or intends to carry on which are or will be covered by these Regulations.

[F20 (4) Registration of a supplier on the register of professional operators for the purposes of the EU Plant Health Regulation is deemed to constitute registration for the purposes of paragraph (1).]

(5) A supplier registered in accordance with this regulation shall keep records of his sales and purchases of propagating material and shall retain them for a period of not less than 12 months.

Extent Information

E6 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F20 Reg. 7(4) substituted (S.) (14.12.2019) by The Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019 (S.S.I. 2019/421), reg. 1(1), sch. 5 para. 2(4)

Measures to be taken by suppliers E+W

8.—(1) Suppliers engaged in the production of propagating material shall–

(a) identify and monitor critical points in their production process which influence the quality of the material;

(b) keep records on the monitoring required in sub-paragraph (a) above;

(c) take samples where necessary and send them to be analysed in a laboratory with suitable facilities and expertise;

(d) ensure that during production lots of propagating material remain separately identifiable.

(2) Without prejudice to paragraph (3) below, a supplier shall treat or, where appropriate, remove any propagating material which, on the basis of visible signs or symptoms, is not substantially free of harmful organisms impairing quality.

(3) If a supplier engaged in the production of propagating material finds on his premises a [F11 plant pest of a description specified in Schedule 6 to the Plant Health (Great Britain) Order 1993] [F11 notifiable plant pest as defined in article 42(3) of the Plant Health (England) Order 2015] he shall, if he would not otherwise be required to notify it under [F12 article 20] [F12 article 42] of that Order (notification of the presence or suspected presence of certain plant pests), report it to the Minister and shall carry out any measures laid down by him.

Extent Information

E3 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F11 Words in reg. 8(3) substituted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), regs. 1(2), 26(4)(a)

F12 Words in reg. 8(3) substituted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), regs. 1(2), 26(4)(b)

Measures to be taken by suppliers S

8.—(1) Suppliers engaged in the production of propagating material shall–

(a) identify and monitor critical points in their production process which influence the quality of the material;

(b) keep records on the monitoring required in sub-paragraph (a) above;

(c) take samples where necessary and send them to be analysed in a laboratory with suitable facilities and expertise;

(d) ensure that during production lots of propagating material remain separately identifiable.

(2) Without prejudice to paragraph (3) below, a supplier shall treat or, where appropriate, remove any propagating material which, on the basis of visible signs or symptoms, is not substantially free of harmful organisms impairing quality.

(3) If a supplier engaged in the production of propagating material finds on his premises a plant pest of a description specified in [F21 article 42(2) of the Plant Health (Scotland) Order 2005] he shall, if he would not otherwise be required to notify it under [F22 article 42] of that Order (notification of the presence or suspected presence of certain plant pests), report it to the Minister and shall carry out any measures laid down by him.

Extent Information

E7 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F21 Words in reg. 8(3) substituted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(6)(a)

F22 Words in reg. 8(3) substituted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(6)(b)

Information on propagating material E+W+S

9.—(1) Subject to paragraphs (2) and (3) below, no supplier shall market any propagating material unless it is accompanied by a label or other document made out by him on which appears the appropriate information prescribed in [F13 the Schedule to] [F13 schedule 1 of] these Regulations.

(2) Where propagating material is accompanied by a plant passport issued in accordance with [F14 Council Directive 77/93/EEC] [F14 Directive 2000/29/EC], the plant passport may constitute the label or other document for the purposes of paragraph (1) above if it contains the appropriate information prescribed in [F15 the Schedule to] [F15 schedule 1 of] these Regulations.

(3) Paragraph (1) above shall not apply to propagating material which is marketed to persons who are not professionally engaged in the production or sale of ornamental plants or propagating material.

Textual Amendments

F13 Words in reg. 9(1) substituted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(7)(a)

F14 Words in reg. 9(2) substituted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), art. 1(2), reg. 26(5) and (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(7)(b)(i)

F15 Words in reg. 9(2) substituted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(7)(b)(ii)

Marketing in lots E+W+S

10.—(1) Subject to paragraph (2) below, no supplier shall market any propagating material unless it is in lots.

(2) Paragraph (1) above shall not apply to–

(a) the sale of different lots in a single consignment provided the supplier keeps records of the composition and origin of the different lots;

(b) propagating material which is marketed to persons who are not professionally engaged in the production or sale of ornamental plants or propagating material.

Description of propagating material E+W+S

11.—(1) Without prejudice to paragraph (2), no supplier shall market propagating material with reference to a variety unless–

(a) it is the subject of Community plant variety rights pursuant to Regulation 2100/94 or national plant variety rights under any jurisdiction; or

(b) the existence of that variety is a matter of common knowledge as defined in section 38 of the Plant Varieties Act 1997 F16 ; or

(c) that variety is entered on a list kept by a supplier which includes:

(i) the name of the variety together with its commonly known synonyms, where appropriate;

(ii) information as to how the varietal identity and purity of the variety is being maintained and as to the propagation system used;

(iii) a description of the variety which shall include, where appropriate, the characteristics of the variety which would be relevant for the purpose of an application for a Community plant variety right in respect of the variety under Regulation 2100/94;

(iv) an explanation of how the variety differs from other varieties most closely resembling it.

(2) Sub-paragraphs (c)(ii) and (c)(iv) of paragraph (1) above shall not apply to a supplier engaged only in the marketing of propagating material.

(3) The list referred to at paragraph (1)(c) above shall be made available to the Minister on request.

(4) Where a supplier markets propagating material with reference to the group of plants to which it belongs, the supplier shall indicate the group of plants in such a way as to avoid confusion with any varietal denomination.

Textual Amendments

F16 1997 c. 66.

Propagating material produced in third countries E+W

12.—(1) No supplier shall import propagating material from a third country unless he has ensured prior to import that the material to be imported is of an equivalent standard to propagating material produced in accordance with Directive 98/56/EC.

(2) A supplier shall notify the Minister in writing of the importation of a consignment of propagating material from a third country within one month of its importation.

(3) A supplier shall be deemed to have complied with paragraph (2) above if he delivers a phytosanitary certificate or reforwarding phytosanitary certificate in respect of the consignment in accordance with [F17 article 12(5) of the Plant Health (Great Britain) Order 1993] [F17 article 9(1) of the Plant Health (England) Order 2015].

(4) A supplier shall retain documentary evidence of every contract relating to the import of propagating material from a third country during the subsistence of the contract and for at least twelve months after its termination.

Extent Information

E4 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F17 Words in reg. 12(3) substituted (E.) (1.6.2018) by The Environment, Food and Rural Affairs (Miscellaneous Amendments) (England) Regulations 2018 (S.I. 2018/575), regs. 1(2), 26(6)

Propagating material produced in third countries S

12.—(1) No supplier shall import propagating material from a third country unless he has ensured prior to import that the material to be imported is of an equivalent standard to propagating material produced in accordance with Directive 98/56/EC.

(2) A supplier shall notify the Minister in writing of the importation of a consignment of propagating material from a third country within one month of its importation.

(3) A supplier shall be deemed to have complied with paragraph (2) above if he delivers a phytosanitary certificate or [F23 phytosanitary certificate for re-export in respect of the consignment in accordance with article 9(1) of the Plant Health (Scotland) Order 2005].

(4) A supplier shall retain documentary evidence of every contract relating to the import of propagating material from a third country during the subsistence of the contract and for at least twelve months after its termination.

Extent Information

E8 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F23 Words in reg. 12(3) substituted (S.) (17.11.2018) by The Marketing of Ornamental Plant Propagating Material Amendment (Scotland) Regulations 2018 (S.S.I. 2018/284), regs. 1, 3(8)

Powers of inspectors E+W+S

13.—(1) An inspector, upon producing, if required to do so, some duly authenticated document showing his authority, may at any reasonable time enter any premises of a supplier where he reasonably suspects that any activity which is covered by these Regulations is being carried on for the purposes of ascertaining whether there is or has been any contravention of these Regulations.

(2) An inspector on entering any premises under paragraph (1) above may take with him such other persons as he reasonably considers to be necessary.

(3) An inspector may carry out all reasonable checks and examinations necessary to ensure compliance with these Regulations, and in particular may–

(a) take any propagating material or sample from any propagating material and send it for analysis;

(b) require the production of any relevant records, lists and other documents;

(c) inspect any relevant records, lists and other documents;

(d) take any relevant records, lists and other documents for copying.

(4) An inspector may by notice in writing served on a supplier in respect of any propagating material on the supplier’s premises that the inspector has reasonable grounds for suspecting fails to comply with the requirements of these Regulations require the supplier not to market or to move from his premises or to permit or cause to be marketed or moved from his premises the propagating material until the supplier has carried out such reasonable measures as the notice may specify.

Service of notices E+W+S

14.—(1) A notice under these Regulations shall be deemed to have been served on a supplier if it is delivered to him personally or left for him at his last known place of abode or business or sent through the post addressed to him at his last known place of abode or business.

(2) A notice under these Regulations may–

(a) in the case of a body corporate, be served on the secretary or clerk of that body at the address of the registered or principal office of that body;

(b) in the case of a partnership, be served on a partner or on a person having the control or management of the partnership business or, in Scotland, the firm at the principal office of the partnership.

Offences E+W+S

15.—(1) A person who contravenes or fails to comply with any provision of these Regulations without reasonable excuse shall be guilty of an offence.

(2) A person guilty of an offence under paragraph (1) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Revocations and transitional provisions E+W+S

16.—(1) Subject to paragraphs (2) and (3) below, the Marketing of Ornamental Plant Material Regulations 1995 F18 are revoked.

(2) Regulation 9 of those Regulations, and regulations 2, 3, 4, 12(1) to 12(3) and 14 of those Regulations to the extent that they apply for the purposes of regulation 9 of those Regulations, shall continue to have effect until 31st December 1999.

(3) Regulation 11 of those Regulations, and regulations 2, 3, 4, 12(1) to 12(3), 13 and 14 of those Regulations to the extent that they apply for the purposes of regulation 11 of those Regulations, shall continue to have effect until 1st August 1999.

(4) For the purposes of paragraph 4 of Schedule 2 to those Regulations (registration or accreditation number) an accreditation number in existence on 31st July 1999 shall be deemed to continue to exist until 31st December 1999, notwithstanding paragraph (3) above.

Textual Amendments

F18 S.I. 1995/2651.

Jeff Rooker

Minister of State, Ministry of Agriculture, Fisheries and Food

Sewel

Parliamentary Under Secretary of State, Scottish Office