colorado department of agriculture
Plant Industry Division
Criteria for determing the legal use of pesticides in marijuana cultivation
8 ccr 1203-25
These Rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to his authority under section 24-20-112(1) C.R.S., and Executive Order D 2013-007. 
Part 1:	Explanation of Purpose and Scope of Rules
1.01.	Executive Order D 2013-007 directed the Colorado Department of Agriculture to develop a list of substances that may not be used in the cultivation and processing of marijuana. These Rules only address substances used in the cultivation of marijuana, not processing.
Part 2:	Definition and Construction of Terms
2.01.	As used in these rules, unless the context otherwise requires:
a)	“Human consumption” for the purposes of these Rules means the consumption of marijuana by a person through oral ingestion, absorption through the skin or inhalation of marijuana through smoking, vaporization or other means.
b)	"Pest" as defined in section 35-10-103(9), C.R.S., of the Pesticide Applicators’ Act, means any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism (except viruses, bacteria, or other microorganisms on or in living man or in other living animals) which the commissioner or the administrator of the EPA declares to be a pest.
c)	"Pesticide" as defined in Section 35-10-103(10), C.R.S., of the Pesticide Applicators’ Act, means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; except that the term "pesticide" shall not include any article that is a "new animal drug" as designated by the United States Food and Drug Administration.
d)	"Plant regulator" as defined in Section 35-10-103(11), C.R.S., of the Pesticide Applicators’ Act, means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation or for otherwise altering the behavior of plants or the produce thereof; except that "plant regulator" shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments. Also, "plant regulator" shall not be required to include any of those nutrient mixtures or soil amendments which are commonly known as vitamin-hormone horticultural products, intended for improvement, maintenance, survival, health, and propagation of plants, which are not for pest destruction and which are nontoxic and nonpoisonous in the undiluted packaged concentration.
e)	“Tolerance” means a level of pesticide residue in or on food that the Environmental Protection Agency has determined with reasonable certainty will not pose a hazard to public health when used in accordance with label directions.
f)	"Use" as defined in Section 35-10-103(18), C.R.S., of the Pesticide Applicators’ Act, means all aspects of the handling of pesticides, including but not limited to the mixing, loading, application or administration, spill control, and disposal of a pesticide or its container.
Part 3:	Use of Pesticides
3.01.	Both state and federal laws require that pesticides be applied according to label directions. As part of the directions for use, pesticide labels will specify the particular crops and/or sites to which they can be applied. In addition, EPA sets tolerances that limit pesticide residues in or on food to ensure with a reasonable certainty that no harm will result from aggregate exposures. Certain pesticides however may be exempted from this tolerance requirement if EPA has determined that use in accordance with their label directions poses no hazard to public health. As of the effective date of these Rules, there are currently no pesticides that are specifically labeled or have pesticide residue tolerances established for use on marijuana by the federal government or the state of Colorado. The Colorado Department of Agriculture does not recommend the use of any pesticide not specifically tested, labeled and assigned a set tolerance for use on marijuana because the health effects on consumers are unknown.
3.02.	Notwithstanding this, some pesticides have broad label language that does not prohibit their use on marijuana and are exempt from the tolerance requirements. These Rules establish the criteria under which certain pesticides may be legally used on marijuana in the State of Colorado. To assist marijuana growers, the Department will publish a list of pesticides that it has determined meet these criteria. This list will be published at: http://www.colorado.gov/cs/Satellite/ag_Plants/CBON/1251644613180.
3.03.	Any pesticide used in the cultivation of marijuana must be registered with the Environmental Protection Agency and the Colorado Department of Agriculture, except for products exempt from federal registration under Section 25(b) of the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) and federal rule 40 CFR 152.25(f), which only require registration with the Department.
3.04.	Any pesticide registered with Colorado Department of Agriculture may be used in accordance with its label directions for the cultivation of marijuana in the State of Colorado under the following conditions:
a)	All of the active ingredient(s) are exempt from the requirements of a tolerance, as established under 40 C.F.R. Part 180, Subparts D and E, and;
b)	The label allows for use on unspecified crops and/or plants, and;
c)	The label allows use at the intended site of application, and;
d)	The label directions do not prohibit use on crops or plants intended for human consumption. 
Parts 4 and 5:	Reserved
Part 6:	Statements of Basis, Specific Statutory Authority and Purpose
6.01.	Adopted June 11, 2014 – Effective July 30, 2014
Statutory Authority
These Rules are being promulgated in accordance with §24-20-112(1), C.R.S., and Executive Order D 2013-007 which states:
The Colorado Department of Agriculture shall create a list of substances that may not be used in the cultivation or processing of marijuana and it shall promulgate rules for such banned substances. The Colorado Department of Agriculture is encouraged to consult with other state agencies including the Colorado Department of Revenue and the Colorado Department of Public Health and Environment as it compiles the list of banned substances and promulgates rules relating thereto.
Purpose of These Rules
1)	Part 1 of the Rule explains the purpose and scope of the Rules.
2)	Part 2 of the Rule establishes definitions relating to these Rules.
3)	Part 3 sets forth the criteria for the use of pesticides in the cultivation of marijuana.
Factual Basis and Policy Issues
1)	Substances that could be used in the cultivation of marijuana include pesticides and fertilizers.
2)	The use of pesticides in Colorado is regulated under the Pesticide Applicators’ Act, Sections 35-10-101 – 128, C.R.S.
3)	Pesticide regulation is based on the labeling of the pesticide product, which is enforceable under state law.
4)	Both state and federal law require that pesticides be applied according to label directions. As part of the directions for use, pesticide labels will specify the particular crops and/or sites to which they can be applied. Depending on the particular pesticide, the crops/sites listed on the label can be expressed very specifically (e.g., “wheat”), or more generally (e.g., “grain crops”). While a pesticide with a label that specifies “wheat” can only be applied to wheat, a pesticide that lists “grain crops” on the label can be applied to wheat, barley, oats, rye, etc. In determining which pesticides, if any, might be used legally on marijuana, the Colorado Department of Agriculture inquired of the U.S. Environmental Protection Agency (EPA) as to whether there might be any general crop groups, such as herbs, spices or vegetable gardens, which marijuana might fit into (note: there are no registered pesticides that specifically list marijuana as a crop on the label). The current position of EPA is that marijuana is not an herb, a spice or a vegetable. However, EPA does concede that, depending on actual label language, pesticides may be legally used on marijuana under certain, very generally worded types of crops/sites on the label, and when there is an exemption from the requirement of a tolerance.
5)	Tolerances are established by EPA in accordance with the Federal Food and Drug Cosmetic Act, Title 21, Section 408. EPA sets tolerances by determining that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all of the exposures. Exemptions from tolerances are established under 40 CFR, Part 180, Subpart D: 180.900, “… An exemption from a tolerance shall be granted when it appears that the total quantity of the pesticide chemical in or on all raw agricultural commodities for which it is useful under conditions of use currently prevailing or proposed will involve no hazard to the public health.”
6)	There are certain pesticide products whose use on marijuana would not constitute a violation of the label due to the very general statements about use on the label and because the active ingredient of the product is exempt from a tolerance requirement. These Rules set forth the specific criteria, which if met, permit the use of a pesticide for the cultivation of marijuana for the reasons outlined above.
7)	Applying these criteria to more than 12,000 pesticides currently registered with the State of Colorado, the Department has determined there are only a few hundred pesticides that can be legally used in the cultivation of marijuana. Therefore, in the interest of efficiency and ease of use, the Department has created a list of pesticides that can be legally used rather than listing the thousands that cannot. This list will be published on the Department’s website so it can be updated as needed.