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Is it Legal To Sell Plants and Produce From Home?

By Brette Sember, J.D. on September 27, 2021 8:00 AM

The COVID-19 pandemic has enticed many people to suddenly become interested in plants and growing things from home. If your green thumb has blossomed, you might be wondering if you can sell the plants and produce you grow as a home business, small business, or hobby. There are some restrictions and caveats to keep in mind.

Avoid Selling Patented Plants

One restriction is that you can't sell patented plants (yes, a plant can be patented!). A person who invents or discovers a plant and then reproduces it asexually can patent it, which gives them the exclusive right to sell it for 20 years. You'll know if a plant is patented because the patent number will be on the tag when you buy it.

Additionally, plants reproduced by seeds are protected under the Plant Variety Protection Act, which gives the inventor/discoverer 25 years of exclusive rights to sell the plant. The seed packet will indicate if this law covers your purchase.

Stay Away From Banned Plants

You also cannot sell plants that your state outlaws. This includes marijuana, which you might be able to grow for personal use in your state, but need a license to sell. The opium poppy is illegal to grow and sell under the federal Opium Poppy Control Act. You also cannot sell any plants on the federal endangered species list.

Some states, such as Indiana, ban the sale of certain invasive species. The sale of invasive plants — which can disrupt ecosystems by overtaking native plants — is a real problem, as detailed in a study inFrontiers in Ecology and Environment.

Alistair Reynolds, an Ohio Department of Natural Resources forester, told the Columbus Dispatch, "A lot of these species offer all those qualities people look for when they're buying a plant; there's demand for them."

Do You Need a License To Sell Plants?

You may actually need a state license to sell plants. Each state has different rules, so it's important to check your state's requirements. California, for example, only requires a permit to sell nursery stock (outdoor plants) and seeds, but Florida requires a license for any plant sales. In New York, all plant sellers must register with the Division of Plant Industry.

Can You Ship Plants?

If you have an internet business selling plants online, such as through Etsy, you should be aware of restrictions in the state you're shipping the plant to. In Hawaii, all plants must go through some type of quarantine.

Texas prohibits the shipping of certain plants into the state, including citrus plants. Texas also requires that all houseplants coming into the state must be in commercially prepared soil, free from pests and diseases. If you grew the plant outdoors, you must include a certificate from the state where you grew it, stating that the plant is healthy.

Selling Produce

In addition to plants, you may want to sell produce you grow yourself. U.S. Department of Agriculture (USDA) regulations only apply to packaged foods, so there are no federal requirements. The exception is that you cannot call anything organic unless you meet USDA standards for this.

States have their own rules about homegrown produce. In California, you can sell produce at your home or on property that you own (or deliver it to someone's home) without a license. However, if you sell at a farmers market or any other public setting or to a restaurant or store, then you need a license. Pennsylvania law says you can sell anything you grow at home without a license.

Stores generally do not purchase from home growers. Doing so will trigger state licensing laws for commercial growers. There are no laws restricting what food banks can accept as donations, so it is up to the individual food bank to determine if it can and will accept homegrown produce. You can find a list of those that do at Ample Harvest.

If you grow your own produce, you may want to try selling things like jams, jellies, or pickles made with your bounty. In most states, this falls under the state's "cottage food law," which regulates anything cooked or processed. Texas allows the sale of jams, jellies, and pickles without licensing, whereas Pennsylvania requires a limited food license to sell anything from a residential kitchen.

Selling plants and produce from home can be a fun way to make some money if you do your research and understand state laws that could impact or restrict your business. Additionally, you'll want to make sure you stay up to date on any tax laws that may apply to your situation.

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