Back to County Agricultural Commissioner (CAC) Letters

Department of Pesticide Regulation

Julie Henderson
Director

Gavin Newsom
Governor
Yana Garcia
Secretary for Environmental Protection

To: County Agricultural Commissioners

Neonicotinoid Pesticides for Non-Agricultural Outdoor Use: New Law and Questions and Answers

This letter announces a revision to Food and Agricultural Code (FAC) section 12838 by Assembly Bill (AB) 363 (Chapter 836, Statutes of 2023). Effective January 1, 2025, neonicotinoid pesticide products used for non-agricultural uses on outdoor trees, turf, or ornamental plants can only be sold by licensed dealers and used by certified applicators.

The Legislature’s findings and text of the amended law.

Specific to the scope of this letter, FAC section 12838(c)(2) states:

          Beginning January 1, 2025, a person shall not sell, possess, or use a pesticide containing
          one or more neonicotinoid pesticides for any use that is excluded from the definition of
          “agricultural use” in Section 11408 on non-production outdoor ornamental plants, trees,
          or turf, with the exception of use and possession by state certified applicators and sale by
          state licensed pest control dealers.

This letter describes and interprets the law and provides the Department of Pesticide Regulation’s (DPR’s) guidance to County Agricultural Commissioners (CACs) on enforcing this requirement, including addressing some questions and answers.

Interpretation

Effective January 1, 2025, neonicotinoid pesticide products used on non-agricultural, non-production outdoor trees, turf, or ornamental plants must be:

• Sold only by DPR-licensed pest control dealers.
• Possessed or used only by California certified commercial applicators.

“Neonicotinoid pesticide”

For this law, subsection (c)(1)(B) defines the term “neonicotinoid pesticide” as a pesticide containing one of five active ingredients: acetamiprid, clothianidin, dinotefuran, imidacloprid, and thiamethoxam.

This list differs from the Department’s Neonicotinoid Pesticide Exposure Protection regulations (Title 3, California Code of Regulations [3 CCR] sections 6990-6990.16, effective January 1, 2024) which do not include acetamiprid. The requirements of AB 363 do not affect 3 CCR sections 6990-6990.16.

Non-agricultural Use

FAC section 11408 provides the criteria to divide pest control in California into two broad categories: agricultural use and non-agricultural use. The uses excluded from the broad legal definition of “agricultural use” are considered “non-agricultural use” and include home use, industrial or institutional use, structural use, and vector control use. These five uses are covered in more detail in the Guidance section below.

“Non-production” Uses

DPR further categorizes pest control that fits within the broad legal definition of “agricultural use” as either production agricultural use or non-production agricultural use. DPR and CACs commonly use the term “non-production” to differentiate pest control on cemeteries, greenbelts, parks or recreation areas, golf courses, and along rights-of-way from those uses associated with production agriculture (e.g., use on farms, forests, nurseries, and greenhouses to produce an agricultural commodity). These classifications are unaffected by the requirements of FAC section 12838(c)(2).

FAC section 12838(c)(2) applies to certain non-agricultural, non-production outdoor uses. Non-agricultural uses are typically also “non-production” uses. However, there are exceptions. For example, under existing DPR guidance if a homeowner is growing produce for personal use, it is considered non-agricultural, non-production use. Whereas, if the homeowner grows produce for sale (for example, growing tomatoes in their garden for sale at a local farmer’s market), pesticides applied to that crop would instead be classified as a production agricultural use.

“Ornamental plants”

As used in the phrase “non-production outdoor ornamental plants, trees, or turf” in FAC section 12838(c)(2), DPR interprets the word “ornamental” in AB 363 as only modifying the word “plants.” Put another way, the scope of FAC section 12838(c)(2) applies to all non-agricultural, non-production outdoor trees, turf, and ornamental plants.

The term “ornamental plants” in FAC section 12838(c)(2) includes nursery stock of non-food landscape or ornamentation plants at retail nurseries. “Ornamental plants” does not include plants in backyard fruit and vegetable gardens.

“Trees”

In addition to trees grown for aesthetic purposes or climatic modification, “trees” as used in FAC section 12838(c)(2) also includes non-agricultural outdoor fruit and nut trees (including but not limited to apple, cherry, lemon, olive, orange, peach, pear, pecan, plum, or walnut trees), provided they fit within the term “non-production” as discussed above.

“State certified applicators”

Private applicator certificate (PAC) holders are California certified applicators. However, the scope of where a PAC holder can use or supervise the use of pesticides is limited by the 3 CCR section 6000 definition of “private applicator”: use of pesticides for the purposes of producing an agricultural commodity (as defined by Title 40 Code of Federal Regulations, section 171.3) on property owned, leased, or rented by them or their employer. As FAC section 12838(c)(2) is limited to certain non-agricultural uses, these uses are outside of the scope of the PAC.

The definition of “commercial applicator” in 3 CCR section 6000 provides these individuals can use “a pesticide for any purpose or on any property other than as provided by the definition of ‘private applicator.’” Therefore, only certified commercial applicators, as defined in 3 CCR section 6000, meet the possession and use limitations of FAC section 12838(c)(2).

Guidance

Use of a neonicotinoid product on the following are subject to the dealer sales and certified commercial applicator use restrictions of FAC section 12838(c)(2):

• Outdoor applications to ornamental nursery stock at a retail nursery.
• Outdoor applications to ornamental plants in a non-agricultural use setting, such as landscaping around homes and other residences, schools, libraries, airports, and businesses.
• Outdoor applications to all trees in non-agricultural use settings, including “non-production” fruit and nut trees around homes and residences.
• Outdoor applications to turf in non-agricultural use settings.

DPR’s Registration Branch compiled a list of neonicotinoid pesticide products registered for use on non-agricultural outdoor trees, turf, or ornamental plants which are subject to DPR’s reevaluation under FAC section 12838. Note that due to the unique wording of FAC section 12838(c)(2) and the limitations of DPR’s Product/Label Database there may be additional products which are not on this list which are subject to the law.

Home Use

FAC section 12838(c)(2) serves to effectively prohibit most householders from purchasing or using a neonicotinoid pesticide on outdoor trees, turf, or ornamental plants on their property unless they are a certified commercial applicator. To legally use existing stocks householders may have on hand for these uses, or to purchase new neonicotinoid pesticide products, the householder would first need to obtain a Qualified Applicator Certificate or License (QAC or QAL) with either Category A or B from DPR. As discussed above, non-agricultural applications cannot be done under a PAC.

As discussed earlier, the limitation to use by certified applicators in FAC section 12838(c)(2) does not apply to backyard fruit and vegetable gardens (e.g., berries, grapes, melons, tomatoes) but does apply to use on non-production fruit and nut trees. A non-certified householder can apply a neonicotinoid for “home use” in their backyard fruit and vegetable garden. However, for a householder to legally use a neonicotinoid on any tree, including non-production fruit or nut trees, on their property they would need to possess a QAC or QAL or use the services of a DPR-licensed Pest Control Business (PCB) (see below).

Industrial and Institutional Uses

Similarly, in industrial use settings (e.g., on or around airports, construction sites, etc.) or institutional use settings (e.g., on or around hospitals, libraries, office complexes) use of a neonicotinoid pesticide outdoors by the property operator on trees, turf, or ornamental plants would require them to obtain a QAC or QAL with Category A or B from DPR or use the services of a DPR-licensed Pest Control Business (PCB) (see below).

Vector Control Use

Applications by vector control agencies or districts are unaffected by the restrictions of FAC section 12838(c)(2). These agencies or districts may apply products containing neonicotinoid pesticides (e.g., imidacloprid) to non-agricultural non-production outdoor trees, turf and ornamental plants to control public health pests. Existing law requires all applications be done by individuals certified as Vector Control Technicians. These individuals are considered certified commercial applicators under the definition in 3 CCR section 6000.

Use by DPR-Licensed Pest Control Businesses in Non-Agricultural Settings

For home, industrial, or institutional uses, in many cases the property operator may use the services of a DPR-licensed PCB to conduct neonicotinoid pesticide applications. Vector control agencies may also on occasion contract with a DPR-licensed PCB. For DPR-licensed PCBs, an application of a neonicotinoid pesticide in the above non-agricultural settings to outdoor trees, turf, or ornamental plants must be done by an individual with a QAL or QAC with the proper category. They cannot be applied by employees trained as handlers under the supervision of a certified commercial applicator.

It is also important to note that an individual with a QAC solely with Subcategory Q is not considered a certified commercial applicator. A Maintenance Gardener Pest Control Business (MG PCB) is also limited by law on where they can apply pesticides. A MG PCB supervised by a QAC holder solely with Subcategory Q will not be able to legally apply a neonicotinoid pesticide to outdoor trees, turf, or ornamental plants under FAC section 12838(c)(2).

Structural Use

In general, pesticides used by Structural Pest Control Board (SPCB)-licensed applicators are not applied to outdoor trees, turf, or ornamental plants. However, in certain cases, such as for mosquito control, a registered Branch 2 company may perform pest control in and around structures, such as to treat standing water, areas of moisture, or other pest reservoirs.

In these narrow situations, an application of a neonicotinoid pesticide to outdoor trees, turf, or ornamental plants must be done only by someone with a valid active Operator or Field Representative license.

Questions and Answers

To help ensure statewide consistency with the implementation of these new requirements, DPR prepared the following questions and answers:

Product Sales

1. Q: Will retailers be allowed to sell existing stocks of neonicotinoid pesticide products after January 1, 2025?
   
   A: There are many neonicotinoid pesticide products which are labeled for non-agricultural use on non-production outdoor trees, turf, or ornamental plants. These products can currently be sold by retailers. Starting January 1, 2025, only licensed pest control dealers can sell these products to end users. For uses covered by FAC section 12838(c)(2), the sale must be to a certified commercial applicator.
   
   For those neonicotinoid products which are currently allowed to be sold by retailers AND which are not labeled for non-agricultural use on outdoor trees, turf, or ornamental plants, those products could continue to be sold by retailers after January 1, 2025.


2. Q: If a neonicotinoid pesticide product labeled for a non-agricultural use on outdoor trees, turf, or ornamental plants are on a retail shelf after January 1, 2025, what is the consequence?
   
   A: Unlawful sales of pesticides required to be sold by a licensed dealer is a violation of FAC 12101 and may be subject to administrative and civil enforcement actions pursuant to FAC sections 12999.4, 12998 and 12999.5.
   
   Note that FAC section 12838 is not a citable section for pesticide administrative civil penalty actions.


3. Q: Does the law apply to retailers selling neonicotinoid pesticide products online?
   
   A: Yes. After January 1, 2025, if you encounter an online retailer selling a neonicotinoid pesticide products which are labeled for non-agricultural use on outdoor trees, turf, or ornamental plants who is not a licensed dealer, please collect the available information (such as website or social media link; retailer name; address; phone number; and screenshot of webpage or advertising language, or copy of the online brochure) and refer the matter to DPR’s Product Compliance Unit at ProductCompliance@cdpr.ca.gov for follow-up.


4. Q: If a company warehouses neonicotinoid pesticide products restricted under FAC section 12838(c)(2) in California but does not sell it to California end users (i.e., the products are exclusively sold to out-of-state purchasers) does the warehouse need a pest control dealer license?
   
   A: No. Pest control dealer licensing is required of persons who sell products subject to FAC section 12838(c) to end users in California. If the warehouse location is in California but all sales are to out of state recipients, no dealer license is required. The company should retain records to adequately demonstrate that all sales are to out of state recipients.


5. Q: What should retailers who are not pest control dealers do with existing stocks?
   
   A: Retailers have three options to comply with FAC section 12838(c) requirements:
   • Existing stocks may be recovered by distributors and moved out of state or appropriately disposed of, before January 1, 2025.
   • Retailers may contact their state or local hazardous waste disposal program to find out how to dispose of neonicotinoid pesticide products appropriately, before January 1, 2025.
   • Retailers may choose to become a DPR-licensed pest control dealer prior to January 1, 2025.


6. Q: How will licensed dealers determine if a neonicotinoid pesticide product can be sold?
   
   A: In accordance with existing requirements, such as 3 CCR sections 6562 and 6568, dealers routinely question potential purchasers to determine if regulatory requirements can be met prior to sale or delivery of the pesticide.
   
   This will be especially important for neonicotinoid products as product labeling may contain uses requiring applicator certification under FAC section 12838(c)(2). A pest control dealer would meet its obligation by determining whether a prospective purchaser’s stated intent for the use requires them to be a certified commercial applicator. As the pesticides covered by FAC section 12838(c)(2) do not require a permit and are not listed in 3 CCR section 6400 subsections (a) or (d), the requirements of 3 CCR section 6568 subsections (a) and (b) do not apply. However, the dealer is encouraged to obtain a copy of the individual's commercial applicator license or certificate to demonstrate the dealer complied with FAC section 12838(c)(2) prior to sale of the pesticide. DPR is developing a fact sheet for pesticide dealers and brokers to explain the requirements of FAC section 12838(c)(2).
   
   In addition, 3 CCR section 6564 does not apply to dealer sales under this law: subsections (a) and (b) apply to labeling requirements and subsection (c) is specific to pesticides listed in 3 CCR section 6400.
   
   As noted above FAC section 12838(c)(2) is not a citable section in CAC pesticide administrative civil penalty actions.

Product Use

7. Q: What can end users do with neonicotinoid pesticide products they have in storage which they can no longer use after January 1, 2025?
   
   A: For all end users, if the container is unopened the end user can consider contacting the dealer or registrant to ask about returning it. Alternatively, end users who may have open containers, including householders and apartment managers, may contact their state or local hazardous waste disposal program to find out how to dispose of neonicotinoid pesticide products appropriately.


8. Q: If a neonicotinoid pesticide product used for a non-agricultural use on outdoor trees, turf, or ornamental plants by a noncertified applicator after January 1, 2025, what is the consequence?
   
   A: As mentioned earlier, FAC section 12838 is not a citable section in pesticide administrative civil penalty actions. In addition, as FAC section 12838(c)(2) does not make the products restricted materials FAC section 14015 does not apply.
   
   CACs do not currently have many options for use-related violations of FAC section 12838(c)(2). In many cases, an investigation into the incident will likely also uncover other pesticide use violations; the CAC can take an enforcement action on those violations instead. However, for those incidents where the only use violation is of FAC section 12838(c)(2), DPR offers the following guidance:
   • For violations by a DPR-licensed Pest Control Business or a SPCB-registered company, enforcement options include referring the violation of FAC section 12838 to your District Attorney or to DPR/SPCB for either a statewide licensing action or referral to the Attorney General’s office.
   • For private individuals (e.g., a householder), DPR suggests CACs should focus their efforts on educating the individual on the requirements, and then tracing the sale back to identify who sold the product to the private individual.


9. Q: Does this law affect neonicotinoid applications on federal property?
   
   A: Other than certain “pollution control standards,” federal agencies and their employees are not subject to California pesticide laws and regulations. However, businesses licensed by DPR or registered with SPCB conducting pest control on federal property in California are subject to California laws and regulations.

Restricted Material Permitting, Operator Identification Numbers (OINs), and Use Reporting

10. Q: Who needs a restricted material permit to purchase or use a neonicotinoid pesticide product on outdoor trees, turf, or ornamental plants?
    
    A: Currently, neonicotinoid pesticides are not restricted materials nor are the active ingredients listed in 3 CCR section 6400. As a result, no permit is required to purchase or use these products.


11. Q: Does the property operator need to obtain an OIN prior to the purchase or use a neonicotinoid pesticide product on outdoor trees, turf, or ornamental plants? What about pesticide use reports?
    
    A: No. Under 3 CCR section 6622(c), the operator of the property is required to obtain an OIN for certain non-agricultural sites prior to the purchase and use of any listed pesticide, such as use of any restricted material or federal Restricted Use Pesticide. For the same reasons as the response to Question 10 above, the operator of the property is not required to obtain an OIN prior to the purchase or use these pesticides, maintain use records, or submit pesticide use reports for non-agricultural uses of neonicotinoid pesticide products on non-production outdoor trees, turf, or ornamental plants.
    
    PCBs must maintain records of all pesticides applied by the business and submit pesticide use reports. These requirements are not affected by the changes to FAC section 12838.

If you have any questions about implementing these requirements, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,

Original signature by:

cc: Mr. Joe Marade, DPR County/State Liaison
       Enforcement Branch Liaisons