California DPR Announces Proposed New Rule to Regulate Pesticide-Treated Seeds

On May 15, 2026, the California Department of Pesticide Regulation (CDPR) announced a proposed rulemaking to harmonize its regulation of pesticide-treated seeds with the U.S. Environmental Protection Agency’s (EPA) regulation of pesticide-treated seeds. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) grants EPA discretion to exempt from its requirements any pesticide that is of a character that is not requiring regulation under FIFRA. EPA exempts treated articles, including but not limited to pesticide-treated seeds, from regulation under FIFRA Section 25(b). The exemption includes treated articles and substances that are “treated with, or containing, a pesticide to protect the article or substance itself (for example, paint treated with a pesticide to protect the paint coating, or wood products treated to protect the wood against insect or fungus infestation), if the pesticide is registered for such use.” (See 40 C.F.R. § 152.25(a).)

CDPR’s proposed regulation seeks to define pesticide-treated seeds in California, specify conditions under which those seeds are exempt from pesticide registration requirements, and require reporting on the use of pesticide-treated seeds in California. Pesticides are used in agriculture to protect seeds from pests or disease during planting and early growth. CDPR states that the proposed regulation would require CDPR to review and register the pesticides used to treat the seeds, but the treated seeds themselves would not need to be registered as separate pesticide products. The proposal also would require monthly reporting of pesticide-treated seeds planted in California, including the type and quantity of seed planted and the pesticide products used to treat the seed. CDPR states that this reporting will give it a clearer understanding of how pesticide-treated seeds are used across the state so that it can evaluate potential impacts and strengthen protections if needed.

CDPR states that it has individually evaluated each pesticide-treated seed that is currently eligible for the proposed exemption by evaluating the treating pesticide through the registration process. Prospectively, CDPR states that a “new” treated seed cannot qualify for the exemption under this two-condition framework until CDPR has individually evaluated it through the treating pesticide’s registration process.

Written comments must be received by CDPR no later than June 29, 2026. Comments can be submitted online through CDPR’s public comment portal, SmartComment, or can be submitted via e-mail to TreatedSeeds@cdpr.ca.gov.

Background

A petition was filed in April 2017 by the Center for Food Safety (CFS) with and on behalf of beekeeper, farmer, and public interest groups (Petition). The Petition requested that EPA interpret or amend the treated article exemption at 40 C.F.R. Section 152.25(a) to exclude seeds treated with pesticides, and to enforce registration and labeling requirements for such treated seeds. The CFS Petition claimed that EPA did not adequately assess the risks from use of seed treatment pesticides that have systemic properties and use of the seed treated by such pesticides. The Petition also claimed that the treated article exemption may not cover treated seeds without an adequate assessment of the risks. In 2024, a California federal district court ruled in favor of EPA, holding that EPA acted within its authority to exempt pesticide-treated seeds from registration under the treated article exemption.

In February 2023, environmental and public health groups filed a legal challenge against CDPR. The lawsuit alleged that CDPR’s handling of pesticide-treated seeds constituted an “underground” regulation in violation of the Administrative Procedures Act (APA) because “DPR did not give notice to the public of this policy, allow members of the public to request hearings or comment on it, or otherwise comply with the requirements of the APA in adopting the treated-seeds policy.” In October 2024, the environmental and public health groups and CDPR agreed to settle the case. As a result of this settlement, CDPR is proposing these regulations to address pesticide-treated seeds.

If the proposed regulation is enacted, CDPR states that beginning January 1, 2027, Food and Agriculture Code (FAC) Section 52484 will require agricultural or vegetable seed shipped, delivered, transported, or sold in California and treated with one or more pesticides to be labeled with the EPA FIFRA registration number(s) of the products the seed was treated with, the signal word for the substance with the highest level of toxicity, and the quantity applied by weight or amount per seed.

Proposed Regulation

The proposed regulatory action will:

• Add a definition for pesticide-treated seed;

• Exempt pesticide-treated seeds from registration when they are treated with a pesticide to protect the seed if the pesticide used to treat the seed is registered by CDPR for such use; and

• Pesticide-treated seeds that meet these criteria are further subject to reporting requirements pursuant to Section 6626.5.

The proposed regulation defines “Pesticide-treated seed” as “any seed treated with one or more pesticides.”

In addition, the proposed regulation states that persons required to record pesticide use shall report a summary of the monthly use of pesticide-treated seed that meets the criteria, by crop or commodity, to the Commissioner of the county in which the work was performed.

The proposed report shall include the following:

1. The name and address of the person who or business/organization which planted the pesticide-treated seed;
   
   
2. County where the pesticide-treated seed was planted;
   
   
3. Month and year of planting of pesticide-treated seed;
   
   
4. Type of seed;
   
   
5. Amount of pesticide-treated seed planted;
   
   
6. Pesticide(s), including the U.S. Environmental Protection Agency (U.S. EPA) or State registration number for each product that the seed is treated with and the quantity applied by weight or amount per seed; and
   
   
7. Total area planted during the month.

In addition, the proposed regulation states pesticide application restrictions will apply Monday through Friday, during the hours of 6:00 a.m. to 6:00 p.m., depending on the distance from the treated area to a school site, the application equipment used, and type of pesticide applied. The type of pesticide is not the product formulation, but the final form applied (e.g., if a powder is mixed with water and then applied, this is considered a liquid application). During these time periods, the operator of the property and the applicator shall assure that an application is not made within the distance of the school site as specified in the proposed regulation.

Commentary

Treated articles — covering a broad range of products including seeds, plastics, paint, and clothing — treated with pesticides/antimicrobials present a complex and often difficult to understand area of FIFRA requirements and regulations. A seed treated with a pesticide (or a shower curtain treated with a mold inhibitor) is not regulated separately as a unique pesticide requiring FIFRA registration provided certain conditions of the “treated article exemption” are satisfied. The active ingredient used to treat the article likely has many uses, and when EPA evaluates the active ingredient, the aggregate risks from all approved uses are part of the review — including expected exposures from any treated article uses (e.g., the risks from the seed treatment use). The treated article is not separately registered; it is part of the use patterns that EPA evaluates for registration eligibility under FIFRA along with the other registered uses of the pesticide.

Aggregate risk from all registered uses of a pesticide, such as neonicotinoids or mold inhibitors, are evaluated together as part of the assessment of the active ingredient. For an active ingredient used as a seed treatment, there might be additional uses such as foliar application products and soil incorporation products, among others. EPA would evaluate the health and ecological risks of all approved use patterns, inclusive of risks from exposures from the seed treatment use.

Critics of the treated article exemption argue that the risk assessment of an active ingredient may not sufficiently capture the risks from use on the treated article, since there can be “gaps” in FIFRA’s regulatory reach. For example, disposal of the treated article is not covered under FIFRA even though disposal of the pesticide used to treat the article would have binding disposal instructions on the label of the pesticide, and not on the label information on the treated article. Some see this as a “loophole” even though other federal or state requirements exist to address disposal of the treated article if the material meets the criteria of waste disposal statutes. Similar concerns about EPA’s approach were raised in the environmental non-governmental organization (eNGO) Petition, and later raised in an August 31, 2022, letter sent to EPA by state pesticide regulators through the State FIFRA Issues Research and Evaluation Group (SFIREG).

EPA responded to the SFIREG letter in June 2023, explaining that the issues raised by the SFIREG letter were partly addressed in EPA’s response to the 2017 Petition (docket EPA-HQ-OPP-2018-0805) and would be further addressed by inviting comment on similar issues in an Advance Notice of Proposed Rulemaking (ANPRM), later published on October 12, 2023 (Docket EPA-HQ-OPP-2023-0420). In the ANPRM, EPA asked for comments and information on:

• Effectiveness of instructions on treated seed product labeling (e.g., on the seed bag tags) to mitigate potential risks;

• Use, usage, and tracking of treated seed products;

• Management of spilled or excess treated seed;

• Treated paint; and

• Administrative action, amendment of the treated article exemption, and/or FIFRA Section 3(a) Rule.

It is not clear when or how EPA might decide on any changes to the current regulations regarding treated articles. The proposed action by California is the state’s attempt to address the treated article issue by formally promulgating its own treated article exemption and including requirements beyond those required on the federal level (e.g.,reporting, labeling). California would join other states, including Minnesota and New York, in imposing additional requirements for seed treatment pesticides.

EPA may develop additional requirements for seed treatment pesticides to ensure improved reporting, tracking, and disposal practices to improve confidence that such products are being used according to any requirements underlying the EPA assessment of the seed treatment pesticide. While there may be concern that additional requirements or conditions on treated seeds could expand to other types of treated articles, it is more likely that EPA will continue to resist requirements that every treated article have a separate registration, as EPA neither wishes nor has the bandwidth to register shower curtains and other such products separately. There are separate state and federal authorities that address other parts of a treated article life cycle, even if not directly covered by FIFRA requirements (e.g.,waste disposal, accidental spills). Whether CDPR’s proposed approach to treated seed may impact its approach toward other treated articles produced in or imported into California remains to be seen.