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Key Takeaways
What Happened: Earlier this year, the California Department of Pesticide Regulation (DPR) released draft text in advance of formally proposing regulations that would, for the first time: (1) expressly exempt pesticide-treated seed from DPR registration requirements when certain criteria are met and (2) require California property operators and pest control businesses to report monthly use of treated seed.
Who's Impacted: Agricultural pesticide industry stakeholders in California, including pesticide product registrants, applicators, and property owners.
What Companies Should Consider Doing in Response: Assess how DPR's draft framework may apply to their products and practices and prepare to submit comments on the formal proposal, which is scheduled to be published by April 1, 2026, by a Court order. Consider the practical aspects of what it would take to comply with potential new requirements if they are consistent with the draft text DPR has already made available.
Background
The U.S. Environmental Protection Agency's (EPA) treated article exemption (40 C.F.R. § 152.25(a)) exempts articles treated with a registered pesticide from regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as long as the registered pesticide used to treat the article is intended only to protect the article itself. Historically, California has relied on a similar approach: as a matter of policy, DPR has long excluded pesticide-treated seed and other treated articles from regulation as pesticides so long as they meet the criteria of the federal treated article exemption. But DPR has never formally promulgated its own treated article exemption under state law.
In 2023, environmental advocacy groups challenged DPR's long-standing practice with specific regard to treated seed, filing suit against DPR on the grounds that the agency's treated seed policy amounted to an "underground regulation" adopted in violation of with the California Administrative Procedure Act (CAPA). The lawsuit was settled on October 31, 2024. Under the settlement agreement, DPR committed to proposing treated seed regulations by April 1, 2026.
This settlement set in motion the regulatory activity DPR initiated this fall. To date, DPR has not signaled an intent to reconsider its approach to treated articles more broadly beyond treated seed.
Draft Proposed Regulations and Informal Public Workshop
In late 2025, DPR released draft pesticide-treated seed regulations for informal public review. While DPR has not yet issued a formal rulemaking proposal under the CAPA, the draft text provides a helpful preview of the agency's expected approach. Highlights include:
- The draft text establishes a first-ever definition for "pesticide-treated seed" under California law, as "any seed treated with one or more pesticides."
- Pesticide-treated seed would be exempt from regulation as pesticides if:
- the seed is treated with a pesticide to protect the seed itself;
- the pesticide(s) used to treat the seed is registered by DPR for such use; and
- the seed is properly labelled as specified in § 52484 California's Food and Agricultural Code (including new requirements, effective January 1, 2027, to identify the EPA registration number and quantity of each pesticide applied).
- The draft text introduces new reporting requirements for treated seed users to submit a summary of monthly treated seed use, by crop or commodity, to the commissioner of the county in which the work was performed.
- DPR proposes to exclude applications of treated seed from otherwise applicable pesticide use restrictions near school sites.
On October 29 this year, DPR held an informal public workshop to present the draft regulations and solicit stakeholder feedback. During the workshop, DPR clarified that it does not intend to require registration of treated seed that meets the proposed criteria. The agency also raised additional areas for public comment, including questions regarding how treated seed is purchased in California (pre-treated directly from large seed/pesticide companies and/or through dealer networks). DPR also requested input on who is planting treated seed in California (primarily growers and their employees, or whether other businesses are planting treated seed and, if so, whether they are licensed pesticide applicators).
DPR accepted written comments on the draft through December 1. Although it has not yet announced a schedule for next steps, the agency is bound by the 2024 settlement to publish a formal proposal no later than April 1, 2026.
What Comes Next: Formal Rulemaking Expected in 2026
DPR's forthcoming formal rulemaking package is expected to include:
- an officially proposed regulatory text,
- an initial statement of reasons, including the rationale for the regulation and the factual material relied on in proposing the regulations.
DPR has not indicated if or how it may incorporate public comments raised during the October 29 workshop. Further, the 2024 settlement also required DPR to address its "authority to assess and require mitigation of environmental and human health impacts...caused by the use of pesticide products used to treat seeds and by pesticide-treated seeds." The current proposed text does not yet contain details related to this aspect of the settlement, however the officially proposed text and accompanying initial statement of reasons may shed more light on DPR's views in this regard.
Why This Matters
Stakeholders may need to prepare for additional compliance obligations related to pesticide-treated seeds that extend beyond the current federal framework. Possible impacts may include additional reporting requirements along with additional labeling or other obligations depending on how DPR structures the draft regulation. It remains to be seen whether data collected from future use reporting may serve as the basis for additional regulation, as well the degree to which DPR's formal approach to treated seed may impact its approach toward other treated articles produced in or imported into California.
B&D closely follows DPR's regulatory activities and advises manufacturers, registrants, agricultural producers, distributors, and trade associations on compliance with California pesticide law and FIFRA. We expect DPR to move into formal rulemaking in 2026 and plan to publish updates when a proposed regulation is issued.
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