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 Post subject: Selling plants online, some legality/ethical questions.
PostPosted: Fri Jan 25, 2019 2:22 am 
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Hello all, As I'm now crossing the line from mere collector to breeder/propagator, I am yet again faced with a question. This question has stopped me from proceeding further in the past, and it's giving me pause now. I have a number of stem props that are looking good, and I will likely be sowing the seeds from my first hybrid crosses within the next month or two, So I'm left with one big question. What to do with the seedling/cuttings? I really don't need 10 P. Tying Shin Baby Smile plants and well, if I'm lucky 20 or so seedlings of the same cross...

The obvious answer is sell/trade them. However, years ago I started to sell plants online, mainly a native grass that grows locally, Sweetgrass (Hierochloe odorata), which is highly prized by Native American basket makers, and as an incense due to it's very strong scent of vanilla. I set up a couple growing beds, and was selling plugs of the grass on Ebay. I wasn't doing this very long when I got a message that I might be violating the law, as New Hampshire, as are all of the states east of the Mississippi, is under a quarantine for Japanese Beetles. Grasses shipped west needed to be bare root, and certified free of Japanese Beetle larvae, eggs, and etc. I looked into things, and it looked more and more like I was going to need Phytosanitary paperwork, site inspections, Japanese Beetle management program, as well as just a lot of work... Simply not worth the effort for the $20 a month in sales I was getting. So I simply stopped. I don't know how much of this I was actually required to perform as a non-commercial entity, but I didn't feel I should continue, even if it wasn't required.

So before I start listing plants on Ebay again, I want to make sure to ask questions before getting caught by surprise.

Before I get started, I want to make it clear, I am a hobby grower. I do not have the space, desire, time or climate to become a commercial grower. I've ruined too many hobbies trying to turn them into a business. My only hope/goal is to make a few trades/sales so I don't feel as guilty spending the $250 on a single plant, or to make a cross or two just because I can. I also have no intention of shipping internationally, ever.

So first questions: Legals, as these are going to be more straight forward.

Are there any restrictions/requirements for domestic sales of orchids that require Phytosanitary, site certifications or other Agriculture inspections, as applicable for non-commercial sales? (i.e. Do I need to get a phytosanitary certificate to ship a plant to California as a private citizen?)

CITES: As I have no intent to ship internationally, this should never be an issue, but since I encourage people to ask about CITES paperwork if they feel a vendor is being shady, is simply saying I grew them myself enough for most people when asked about CITES? or is there some better way of documenting that the plants are indeed conforming with CITES?

Over the last 20 years or so, I've seen a number of "Do Not Propagate" tags on a increasing number of plants. I haven't encountered any on orchids yet. Are there some orchids that are "Do Not Propagate"? and is there a list someplace? Also, I've heard someplace that Plant Patents are only good for a few years, does anyone know exactly how long?

Now for some questions that have far less of a straight forward answers. I doubt I need to explain to anyone that reputation is everything when it comes to orchids. As a customer, I expect that a vendor is going to do everything within reason to provide me a healthy, disease and pest free plant. The keywords are "within reason". Now with mealy bugs and spider mites, the damage/infestation is usually visible, but even if it's missed, these things sometimes happen, and I know I keep an eye out for them after every new purchase. But if I got a plant riddled with damage and pests, I probably wouldn't buy from the vendor again. However, my question/concern is about something most often not seen. Viruses. Nothing strikes fear into a new grower more than the Dreaded V word. I was no different for a long time, until one of the gentlemen at my local OS told me this. He said, "Most people act as though Orchid viruses are like Ebola, fast certain death, When in fact most common viruses are more like Herpes. You don't want Herpes, You want to avoid Herpes if you can, but if you get it, it's not the end of the world, and in most cases, most people will never know they have it as they never have symptoms at all. Most orchid viruses are very much like this, and most plants that are infected never show any signs as long as they aren't stressed out." Further reading, even on this site, seems to largely confirm this opinion, and after learning that there are some old cultivars of Cattleya that have no known non-virused examples, I largely ignored the possibility of viruses in my plants.

This is fine for myself, but if I'm selling/trading, what are my obligations here? Do I need to test every plant I send out for every known virus? Do I need to remove every plant from my growroom, and only return them once I've tested it for every known virus? Or do I only need to worry about testing if the plant shows signs of an issue? I've read many of the home test kits for viruses are shaky at best, producing many false positives, and Lab testing isn't cheap. What is considered "Within Reason" to you when it comes to viruses?


When someone creates a new hybrid, is there a generally accepted time frame before cloning/propagation is done/sold by a third party? If so, about how long?

Anything else you can think of that I should/should not do?


Thanks for reading this wall of text, I hope I was clear and concise with my questions, and appreciate any advice.


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 Post subject: Selling plants online, some legality/ethical questions.
PostPosted: Fri Jan 25, 2019 7:12 am 
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First the easy one: CITES simply does not apply to domestic sales.

California, Arizona and Hawaii have restrictions on inbound plant shipments, so you have three options: 1) don't ship to customers in those states, 2) do so, but do not label the packages as containing plants, so they won't get routed to Ag inspectors, or 3) do what is necessary to legally ship there. I cannot speak for today, but formerly, I had to put a double door "air lock" on the greenhouse and fine screens over every opening to prevent Japanese Beetle entry, plus a certification to that fact by the PA Dept. of Agriculture.

In my case, I registered as a nursery with the PA D of A, while a sole proprietorship, and later formed an LLC. Only you can decide how you want to go...

As far as I'm aware, there are no plant patents on orchids, and even if so, it is the producer's responsibility to label the plants as such. You have a legal obligation to not replicate those with such label.

As far a viruses are concerned, apply your own standards, and publicize them. You can keep Agdia in business by testing every plant, or just the "mother" plants, but even with that there are false negatives and false positives, so you cannot 100% guarantee any plant to be virus-free. My approach was to state that I purchase my stock from reputable growers, but do not test for viruses, so cannot guarantee them in that respect.

In the decades that I resold plants, only once did I discover that I had purchased virused plants (from a reputable nursery in Hawaii), and that was courtesy of a customer who did do testing. My reaction was to refund all purchases, tell my customers what had been discovered, and suggest they destroy the plants. I got my money back from the originator and destroyed the balance, but they continued selling their plants, even after confirming my customer's findings.

Generally, my plant-selling policy was that I wouldn't ship something I wouldn't be happy receiving, but in cases where I just plain screwed up, or there was simply a difference of opinion over acceptability, I always refunded the money immediately, apologized, and in the case of a plant not doing well, offered suggestions to help it do better. If I accidentally shipped the wrong plant, I corrected that by shipping the correct one and advising them that the incorrect one was an "early Christmas present". Losing money on a sale is far less damaging that losing a good reputation, and such a response often enhanced it!

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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Fri Jan 25, 2019 8:25 am 
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Agree with Ray, with these notes:

When I was the head hybridizer at Carter and Holmes, we had two plants that needed to be patented (there are patented cultivars in countless "Family" of plants). The cost, at the time, was around $400 per patent. Here is the problem:

Even if the plant is labeled as patented, this does not prevent unscrupulous individuals *outside* the US from cloning the crap out of the patented plant. There are more expensive "international" plant patents, but I am not aware of any orchids that have such a title.

In the end, our lawyer advised against wasting the money on US patents since...litigation to enforce your patent would cost much, much more than the patent itself, and you would have to litigate in the most expensive way: charge them in their home State first, then go through relentless proof projects. The plants I wanted to patent were Blc. Owen Holmes 'Mendenhall' and Blc. Campobello 'Mendenhall', both of which were legitimate break-through cultivars bred by Bill Carter. Long story short, we chose to not patent either plant. On the good side, we saved thousands of dollars in litigation. On the bad side, there are uncountable thousands of plants carrying these grex/cultivar names that bear zero resemblance to the original plant since they were tissue-cultured by the thousands upon thousands outside the US. Customers' note: buy from the source! The conscientious originator will probably make a few hundred mericlones, but they will be true; entire tents of vendors at Redland, for example, are packed cheek-to-jowl of mericlones produced by the many thousands and their true-to-original cultivar ratio is basically zero, given the level of mutation.

My worst nightmare in this over-all situation involved what was then called Oncidium Mendenhall 'Mem. Leora Hewlett', AM/AOS. Wandering Redland tents one year, I saw trays of mericlones of this plant offered by a hugely famous vendor. I addressed him on the plants in question. See, here's the thing, as I told the vendor: 'Leora Hewlett' was never sold by Carter and Holmes after its award: in fact, the entire plant died shortly after the award was given. The plant was never divided, never sold and never tissued by Carter and Holmes. It flowered once, then died. Therefore, I knew that the label on the "mericlones" was bogus. The vendor blamed it on his "supplier" and promised to change the label. When I went to Redland the following year, … the same mericlone was in the same tent labeled the same way. This put a permanent end to my opinion of the vendor, who I again approached about the situation, reminding them that we had discussed this the prior year. At least he did remove the plants from the tables and put another incorrect label in the pots. Point being: I would suggest that you promote the notion of purchasing from "reputable originators and their trustworthy wholesale colleagues" rather than even bother with patents.

Ray could not be more SPOT-ON regarding virus testing. The following is just my opinion (I do not care to be on the receiving end of a lawsuit!, but my experience in this matter is neither brief nor scant): Short of more expensive lab work, I cannot tell you how many cultivars I have seen discarded because of a strip test that was (probably falsely) positive. There are so many "operator-error" variables in the accuracy of these tests that I, personally, have profound concerns as to their accuracy when used incorrectly, whether the result is positive or negative. Even during shipment, if these strips are exposed to a temperature outside their appropriate limit, the likelihood of false readings is increased; likewise, if the size of the plant tissue used in the test is not correct, readings can easily be incorrect; likewise, if the time spent in the pouch is either under or over the labeled instruction, readings WILL be incorrect. If you wish to use this approach to virus testing, be abjectly meticulous in following the manufacturer's instructions *to the letter,* including storage of tests that you have not yet used.

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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Fri Jan 25, 2019 10:01 am 
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I pretty much agree with what was said above.

Since selling is meant to be part time for you, only you can decide how much effort you are willing to put into this. Few plants are easy to handle, but once you accumulate many then you are likely to face tough decisions.

In my experience of selling orchids full time since 2003 - I agree that being commercial does take away some fun of this hobby. However because I'm selling, I am acquiring new plants that keep me interested.

It's great that you are planning ahead and think this through.

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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Sat Jan 26, 2019 4:58 pm 
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Thank you for the insight. It will be very helpful as I move forward.

WaltonInlet wrote:
... The plants I wanted to patent were Blc. Owen Holmes 'Mendenhall' and Blc. Campobello 'Mendenhall', both of which were legitimate break-through cultivars bred by Bill Carter. Long story short, we chose to not patent either plant. On the good side, we saved thousands of dollars in litigation. On the bad side, there are uncountable thousands of plants ...

My worst nightmare in this over-all situation involved what was then called Oncidium Mendenhall 'Mem. Leora Hewlett', AM/AOS. Wandering Redland tents one year, I saw trays of mericlones of this plant offered by a hugely famous vendor. I addressed him on the plants in question. See, here's the thing, as I told the vendor: 'Leora Hewlett' was never sold by Carter and Holmes after its award: in fact, the entire plant died shortly after the award was given. The plant was never divided, never sold and never tissued by Carter and Holmes. It flowered once, then died. Therefore, I knew that the label on the "mericlones" was bogus. The vendor blamed it on his "supplier" and promised to change the label. When I went to Redland the following year, … the same mericlone was in the same tent labeled the same way. This put a permanent end to my opinion of the vendor, who I again approached about the situation, reminding them that we had discussed this the prior year. At least he did remove the plants from the tables and put another incorrect label in the pots. Point being: I would suggest that you promote the notion of purchasing from "reputable originators and their trustworthy wholesale colleagues" rather than even bother with patents.



Yikes. I can only image what this sort of thing feels like. I've worked various tech fields of the years, and it is difficult when a foreign company tries to steal your customers with your own product. Most recently, a company I worked for was approached by a company in India, with our own internal prints, wanting to make our product for us. I can only imaging how much worse this is when it comes to orchids, given the time involved in a single cross.

raybark wrote:
California, Arizona and Hawaii have restrictions on inbound plant shipments, so you have three options: 1) don't ship to customers in those states, 2) do so, but do not label the packages as containing plants, so they won't get routed to Ag inspectors, or 3) do what is necessary to legally ship there. I cannot speak for today, but formerly, I had to put a double door "air lock" on the greenhouse and fine screens over every opening to prevent Japanese Beetle entry, plus a certification to that fact by the PA Dept. of Agriculture.

In my case, I registered as a nursery with the PA D of A, while a sole proprietorship, and later formed an LLC. Only you can decide how you want to go...


Ok, good to know. I might have problems getting a NH D of A Cert., as I do not intend to set up a business, and well, I don't even have a greenhouse. I'm growing out of my front room. I've been debating building a greenhouse (as I really want one), but the cost to heat it with -20'f winters and frequent power failures make me wonder if I could even afford it. But if it is indeed just those three States, I'll probably just add a Cannot ship to note.

raybark wrote:
First the easy one: CITES simply does not apply to domestic sales.


I think I might have mis phrased this question... I guess a better one would be "have you ever had a customer ask you for CITES paperwork, and not accept your word that it did not apply to domestic sales or hybrids? and how did you handle it."

raybark wrote:
Generally, my plant-selling policy was that I wouldn't ship something I wouldn't be happy receiving, but in cases where I just plain screwed up, or there was simply a difference of opinion over acceptability, I always refunded the money immediately, apologized, and in the case of a plant not doing well, offered suggestions to help it do better. If I accidentally shipped the wrong plant, I corrected that by shipping the correct one and advising them that the incorrect one was an "early Christmas present". Losing money on a sale is far less damaging that losing a good reputation, and such a response often enhanced it!


Absolutely 100% agree with this, and this is how I do intend to conduct myself. My first online orchid purchase was here at Big Leaf Orchids. Before that, due to some bad experiences, I hated to buy anything online or not have the item in my hands when I spent the money. Amazon.com has largely helped change that, at least in regards to dry goods and hardware. However with living things, there are simply too many things that can vary. I want to pick it up, look at the root, examine the plant for pest, color, shape, etc. etc., all things you can't do online, and have to trust the person putting it into the box to do it for you. But I was convinced to give it a shot, and when asked, everyone I talked to gave Peter and Big Leaf Orchids a 5 star review. And Peter has never sent me a plant that disappointed, and customer service has always been top notch. If he didn't have that reputation, I likely would not have made that first purchase. By contrast, "another" large online seller has a pretty bad rep. I gave them a shot anyways, and while I've gotten a couple nice plants, I've also gotten some very underwhelming plants, and some serious disappointing ones as well... A P. stuartiana var nobilis, that was sold as "Near Blooming Size" that looked like it was just out of the flask, some plants that weren't as advertised, and even one that I love, but people have questioned if the tag is actually correct. With their Customer Service Reputation, I wasn't even worth complaining, and I simply will not buy from them again.

WaltonInlet wrote:
Ray could not be more SPOT-ON regarding virus testing. The following is just my opinion (I do not care to be on the receiving end of a lawsuit!, but my experience in this matter is neither brief nor scant): Short of more expensive lab work, I cannot tell you how many cultivars I have seen discarded because of a strip test that was (probably falsely) positive. There are so many "operator-error" variables in the accuracy of these tests that I, personally, have profound concerns as to their accuracy when used incorrectly, whether the result is positive or negative. Even during shipment, if these strips are exposed to a temperature outside their appropriate limit, the likelihood of false readings is increased; likewise, if the size of the plant tissue used in the test is not correct, readings can easily be incorrect; likewise, if the time spent in the pouch is either under or over the labeled instruction, readings WILL be incorrect. If you wish to use this approach to virus testing, be abjectly meticulous in following the manufacturer's instructions *to the letter,* including storage of tests that you have not yet used.


I've read that about home virus testing in the past, and well, it sound like Home testing is next to useless. If a product produces false Neg and false Pos, and from all accounts, at more than 30% of the time (if not higher due to operator error), then it's still basically a guess. This is a large reason I mostly ignore the virus concerns. If a plant is growing well and not showing signs of issues, why bother testing it... If it's in decline and showing symptoms, discard it, why waste time/money on a test that isn't reliable anyways. This area however had me the most concerned on how to proceed. but if saying I don't test, but do my best to ensure they are virus free is enough for most collectors, then I think I can move forward.

peterlin wrote:
I agree that being commercial does take away some fun of this hobby. However because I'm selling, I am acquiring new plants that keep me interested.


I was talking with a vendor I deal with often at the last show, and made a offhand comment that there never seems to be enough money for all the plants I want... She nodded in agreement, and said "and that is why I'm on this side of the table". Incidentally, this is the same vendor I bought my P. Tying Shin Baby Smile plant from in the first place, and she had mentioned that she wished she could get more of them (at least at that moment, they were no longer available from her supplier), she also had a P. Mini Mark I really wanted but the price tag on it would have taken my entire budget for the day. That is when it hit me that if my Stem Props were big enough, I might have been able to trade a couple of them for the Mini Mark... and started to consider what I would need to do to even suggest the trade.


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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Sat Jan 26, 2019 10:06 pm 
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NHguy03276 wrote:
She nodded in agreement, and said "and that is why I'm on this side of the table".

I got a chuckle out of this as many orchid vendors use the joke, " Do you know how to make a million in orchids? Start out with 2 million."

Just some thought from someone that was/am pretty much in the same boat as you. I got into doing my own lab work in order to be able to have back up plants of some of my more expensive stuff, to have plants to share/trade with friends, and maybe a couple extra to sell. I never plan on making money, but a little cash to put towards some expenses of the hobby is great. I find that my real job, and the demands of life get in the way of my lab work, and by the time I have something reproduced no one wants it anymore.

Getting a stem prop grown to the size to defask is no problem. Growing it to selling size without nicks in the leaves and with good roots is difficult sometimes. Also it can take years and that is years it is taking up precious bench space for something you are going to get $25 for.

After doing a few stem props I decided to figure out how to sow seed. This was great. Flasks for all my friends. Before long, I had more baby plants than I could possibly grow out. My friend's benches were full of their own plants, and they didn't want many of mine. That vision went down the crapper fast. Then they started hybridizing and we all have a zillion seedlings we don't have room for and our friends don't want them, or they only want a few, because they don't have room either. I don't know your situation, but at first it is temping to make crosses and flask out a bunch of seedlings and grow up stems, but might want to start out slow. It only take a few flasks to fill up a grow area.

As far as virus, I think Ray's advice is spot on. I tested several plants years ago. Some were positive. I kept them. If you want any of the old good things, it will be tough to find them without virus. My John Ewing 'Gosh' tested positive. (This was with a lab and not a test kit) I'm not tossing it. On the rare occasion I have sold something, I make the disclaimer that it might be virused.

This along with the legality and ethics could be discussed for hours, and it's past my bed time.

One last thing to remind you of is that you can't sell your stuff on the Big Leaf forum. That's someone else's store. :D

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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Sun Jan 27, 2019 6:30 am 
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In 25 years, I've never had anyone ask me about CITES documentation, even folks wanting to order internationally.

If they had, I think that I'd simply respond "No. CITES pertains to international trade only." Plus, your stem props are, in all likelihood, hybrids, making it a "double N/A".

If they wanted to dig deeper and are looking for provenance, again, that would only apply to species.

You might run into folks that simply think they know what they're asking, but don't, so you're best to treat that like the virus testing question, and politely respond in the negative, letting them make up their own minds about whether to purchase or not.

It's good that you're thinking all of this out in advance, but PLEASE don't worry about such minutiae. Simply be honest and straightforward with folks, and have fun.

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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Sun Jan 27, 2019 3:08 pm 
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raybark wrote:
In 25 years, I've never had anyone ask me about CITES documentation, even folks wanting to order internationally.

If they had, I think that I'd simply respond "No. CITES pertains to international trade only." Plus, your stem props are, in all likelihood, hybrids, making it a "double N/A".

It's good that you're thinking all of this out in advance, but PLEASE don't worry about such minutiae. Simply be honest and straightforward with folks, and have fun.


You are most likely correct in that I'm overthinking it. I've been part of my employers emergency response team for years (including HAZWOPER training to Class C equipment, but got to play with Class A during training ) and part of that has always been to think about the "What Ifs", no matter how unlikely, and find ways to mitigate the worse case scenarios. Once you get yourself into that mindset, you sometimes find yourself thinking like this even when it isn't that applicable.

Also, I wasn't super specific, but I, for some of the reasons Ben mentioned, do intend on dealing with species as much as any hybrids. I've already had people asking for stems from my P.lowii, P.cornu-cervi, and P.schilleriana 'silver leaf'. But it is good to know it isn't going to be a common question, even dealing with species.

Ben Belton wrote:
Just some thought from someone that was/am pretty much in the same boat as you. I got into doing my own lab work in order to be able to have back up plants of some of my more expensive stuff, to have plants to share/trade with friends, and maybe a couple extra to sell. I never plan on making money, but a little cash to put towards some expenses of the hobby is great. I find that my real job, and the demands of life get in the way of my lab work, and by the time I have something reproduced no one wants it anymore.

Getting a stem prop grown to the size to defask is no problem. Growing it to selling size without nicks in the leaves and with good roots is difficult sometimes. Also it can take years and that is years it is taking up precious bench space for something you are going to get $25 for.

After doing a few stem props I decided to figure out how to sow seed. This was great. Flasks for all my friends. Before long, I had more baby plants than I could possibly grow out. My friend's benches were full of their own plants, and they didn't want many of mine. That vision went down the crapper fast. Then they started hybridizing and we all have a zillion seedlings we don't have room for and our friends don't want them, or they only want a few, because they don't have room either. I don't know your situation, but at first it is temping to make crosses and flask out a bunch of seedlings and grow up stems, but might want to start out slow. It only take a few flasks to fill up a grow area.


Oh, yeah, I am trying to go slow. I've been at this point before (well, I'm a little further this time), but usually backed away for all the reasons you mentioned. My main focus in my collection has shifted from complex hybrids to species and primaries. I still enjoy a good complex hybrid, but find the simplicity of many species/primaries refreshing. I was showing off the blooms of P. Summer Candy Girl I picked up from Peter a while back, and was asked if I had plans on breeding it. I said no, as I couldn't think of any way I could improve it, and there are a lot of people working with this section of Phals. I personally have more interest in working with the Cornu-cervi complex and a few of the Ambilis. I actually want to focus more on trying to get interesting foliage on smaller Phals (under 6"). I'm trying to be careful in what crosses I make, as space really is a premium, and I know it's going to be a long haul project. One of the planned crosses I want to make is a recreation of Phal. Little Dragon using P.stuartiana f. nobilis 'Canary' and P celebensis (even if Peter beat me to it), and a cross of P. stuartiana 'Sogo' with P. Sogo Relex 'F1661' (I've tried 3 times now to get seeds, the flowers all aborted within 5 days of pollination... This might not happen). Right now, I have a number of miscellaneous crosses going, but these are more for seeds to practice with than any expectations of great plants. In all honesty, I suspect any cash/trades made will be more incidental than deliberate.

and yeah, I had no intent to try to sell in this forum, I've read the rules, and even if it wasn't directly in the rules, it still would be a bit rude.


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 Post subject: Re: Selling plants online, some legality/ethical questions.
PostPosted: Mon Jan 28, 2019 6:46 am 
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Sorry. I missed the species part of the discussion.

I also see an error in my discussion about provenance (I usually visit the forums while having my morning coffee, so will blame both "blanks" on a caffeine deficiency).

While I've only heard it come up when applied to paphiopedilum and phragmipedium, some folks may want to know the origin of the plant or its parent, mostly because of the legal aspects of importation. The USFWS interprets CITES, and applies other rules a bit strictly.

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