Seller Beware: Online Sales of Pesticides in California May Trigger Significant Regulatory Requirements and Tax Liabilities – Environmental Law

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Last week, the California Department of Pesticide Regulation (DPR) announcement he had reached an agreement with an entity to settle multiple violations related to the illegal sale of pesticides in California. What made this settlement remarkable was not just the penalty imposed – $4.97 million – but the entity found in violation – Amazon.com Services, LLC. This settlement agreement should grab the attention of any retailer with an online presence.

California pesticide law

All pesticides must be registered (or licensed) with the state before they can be used, possessed, or offered for sale in California. Pesticide products include insecticides, herbicides, algaecides (such as pool products like chlorine), disinfectants and sanitizers, repellents, rodenticides and fungicides. The rules apply to both agricultural pesticides and pesticides sold for use in residential, industrial and institutional settings. Therefore, selling a pesticide in California that is not registered there is a violation of California law.

Even once a product is registered, California law does not simply allow its immediate and unlimited sale in the state. If an entity is the first to sell, offer to sell, distribute, or bring into California for sale a pesticide product, and the entity is not an authorized pest control dealer or the company that actually registered the pesticide (the “registrant”), that entity must obtain a pesticide “broker” license. Generally, a retail store does not need a broker’s license unless it is shipping pesticide products from its own out-of-state facilities to California. Once licensed, brokers must report quarterly to DPR the total dollars of pesticide sales and the total number of pounds or gallons of each product it sold in California or California for each pesticide product. Brokers must also keep records of all purchases, sales, and distributions of pesticide products in California and California for Finally, if a broker is responsible for the first sale of a pesticide in California, the broker must pay “the assessment of the ‘factory “.

The “factory assessment” is a levy on all pesticide sales. A mill is equal to one tenth of a cent. The general tax rate is currently 21 mills, or 2.1 cents, on every dollar of sale. Revenues from factory assessments are placed in a special fund used to pay for California’s pesticide regulatory program administered by the DPR. If the first sale of a pesticide in California is not made by the registrant but by a pesticide broker, the broker must report and pay for the plant assessment. The factory assessment program is a self-reporting system, and DPR uses the authorization system to track which entities should pay for factory assessments.

Amazon—online retailer or pesticide broker?

DPR said it uncovered multiple violations by Amazon through its online sales of pesticide products. This included unregistered pesticides sold in California. (Amazon resolved similar allegations to sell unregistered pesticide products in the United States with the U.S. Environmental Protection Agency in 2018.) More importantly, the DPR found that Amazon was the first entity to sell certain pesticide products in the state from California. Therefore, he was required to obtain a broker’s license and pay mill dues to do so. Amazon apparently never held a broker’s license and never paid factory appraisals; the company was also found to be in violation of these requirements.

With this penalty announcement, the State of California clarifies its view of entities that sell pesticide products online, that is, California considers online and mail-order retail businesses to be part of those who must have a pesticide broker’s license to sell pesticide products. in California. Despite the absence of any physical retail presence to conduct pesticide sales in the state, California intends to apply these provisions to these businesses. Therefore, any online retailer that may be selling a product that may be considered a pesticide should carefully review its product inventory and sales practices to ensure that it meets California DPR requirements.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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