Getting Started

This factsheet aims to help botanical producers make well-informed decisions about how to market and manufacture their products. Familiarity with dietary supplement regulations will allow botanical businesses to continue to thrive. Botanical products can exist in a gray area between food and dietary supplement regulations. Botanical producers unaware of dietary supplement regulations risk violating labeling, cGMP, or marketing rules. Consequences could include:

●     the FDA sending a letter challenging the botanical product’s marketing and requiring immediate changes,

●     a market or online sales platform refusing to sell the product, or

●     the state forcing a producer to change their business name.

Determining whether a particular botanical product will be regulated as a ‘food’ versus a ‘dietary supplement’ can be challenging. The key factors in making this determination are the product’s intended use and marketing. This means that what is said about the product can be more important than what the product is made of in determining what regulations apply.

For the purposes of this factsheet, we define botanical producers as those who grow some or all of their own inputs and create value-added goods for their customers’ health, wellness, or beautification. These producers may grow fruits, spices, medicinal herbs, mushrooms, beeswax, honey, or maple syrup. The value-added products include but are not limited to dry teas (blends or single herbs), tinctures, syrups, oxymels, salves, and hydrosols.

Tobacco, cannabis, and hemp are all regulated separately and are not covered in this factsheet.

What type of botanical product am I making and selling?

Botanical products can be legally classified as foods, dietary supplements, cosmetics, or even (potentially) drugs.

For example, a producer could sell a dried herbal tea blend as a food, and many producers do just that! However, if the producer changes the tea’s marketing to include a statement that the tea “supports a healthy immune system,” then the tea would be regulated as a dietary supplement rather than a conventional food. If the marketing claim were even bolder, saying the tea would “cure the common cold,” then the product would be regulated as a drug. Finally, if the producer incorporates the same dried herbs into a salve and markets it as a topical moisturizer, it would be regulated as a cosmetic.

Another common example is elderberry. The fruit is often made into syrups, dried teas, or jelly. Depending on how they are marketed, most of these could be classified as conventional foods or dietary supplements. Elderberry syrup, for example, could be sold as a food with the suggested use of pouring it over pancakes. More often, we see elderberry syrup marketed as a dietary supplement, with the suggested use of ingesting it by the tablespoon for immune-supportive benefits.

This factsheet assumes botanical producers want to avoid drug classification because drugs require FDA pre-approval. But the other categories—cosmetics, conventional foods, or dietary supplements—are all valid options for botanical producers. Each classification has different rules on labeling, production and manufacturing, allowable health-related claims, and even state taxes.

Botanical producers must ask themselves a series of questions about their products to determine whether they will be classified as foods or dietary supplements. The flow chart on the next page will help clarify if a product is a dietary supplement, conventional food, or cosmetic and explains basic regulatory information about each category.

Once we know how a product is classified, we can figure out how it’s regulated.

As you consider whether your botanical product is a food, dietary supplement, or cosmetic, do a gut check against the legal definitions provided below. If the flowchart and legal definitions align, we have a pretty good idea of the classification of the botanical product.

Dietary Supplement: a subcategory of food that is subject to both food regulations and specific dietary supplement regulations. Dietary supplements are defined as a product:

1. Intended to supplement the diet that contains one or more of the following: a vitamin, a mineral, an herb or other botanical, an amino acid, a dietary substance, a concentrate, metabolite, constituent, extract, or a combination of any of these ingredients.
2. That is intended for ingestion in pill, capsule, tablet, soft gel, gelcap, powder, or liquid form or, if not taken that way, is not represented as a conventional food and is not represented for use as a sole item of a meal or diet.

Cosmetic: articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance.

The flowchart and definitions above should get producers closer to understanding how their product is classified. Once we understand how a product is classified, we can explore how each category is regulated.

What can I say about the health benefits of my product?

Botanical producers may want to tout the health-related claims of their tinctures, salves, and other products. Using this kind of marketing requires producers to follow federal marketing regulations. This is true whether the health-related claim is on the product’s label, in advertisements, or on a website blog.

Producers can make two main types of marketing claims for their botanical products: structure/function claims or disease claims.

Only drugs (or certain medical devices) can use disease claims. Any botanical product (conventional food, dietary supplement, or cosmetic) that claims to treat, mitigate, or cure a disease would be regulated as a drug. Therefore, a cosmetic that claims to “treat eczema” could be considered a misbranded drug and be subject to FDA enforcement action.

Cosmetics are very limited in what claims can be made about them; even structure/function claims are not allowed. Advertising that a cosmetic can “increase collagen production” would be prohibited marketing because it implies it can change the skin’s structure. No cosmetic can claim to impact the structure or function of the body because it is only used outside or on the body. The law doesn’t recognize the ability of any topically applied product to absorb into the body and impact any bodily structures or functions. The few allowable descriptions for cosmetics include (but are not limited to) words like “cleansing,” “beautifying,” or “moisturizing.”

Any cosmetic claiming to impact the structure/function of the body or claiming to treat, mitigate, or cure a disease will be regulated as a drug. Producers should also be aware the U.S. is unique in regulating all sunscreens as drugs. This means no cosmetic can claim to have sun-protective qualities. Lastly, the regulation on the term “antimicrobial” might be surprising. Claims that a botanical kills or prevents microbial growth are considered drug claims.

Conventional foods can use structure/function claims in one limited way. For example, a claim based on nutrients, like “calcium builds strong bones,” can be used to market foods, but only if the food has calcium meeting or exceeding the established Daily Value (DV). DVs are established by the FDA as the recommended amounts of nutrients to consume or not to exceed each day. Conventional foods that use a structure/function claim that isn’t a nutrient claim, like “supports wellness,” would be considered a dietary supplement and would no longer be regulated as a conventional food.

Dietary supplements have the most flexibility in using structure/function claims in their marketing strategy. This is one benefit of producing dietary supplements—the producer can market the product by sharing how the supplement benefits the customer’s health and general well-being. If applicable, dietary supplements can also make nutrient content claims, like in the case of vitamins with established DVs.

This flexibility comes at a cost. Crafting an allowable dietary supplement structure/function claim can take time and effort. Still, once farmers understand the general guidelines, they can assert that a botanical positively impacts the body’s structure (e.g., bones) or function (e.g., immune system).

Producers can start learning to craft allowable structure/function claims by eliminating what they cannot say.

Health-related claims for dietary supplements cannot:

●     Say or imply that the product can diagnose, treat, cure, or prevent any disease,

●     Mention any disease (even the common cold!) in the claim, nor

●     Suggest the product relieves the symptoms characteristic of a specific disease.

A botanical producer cannot make a St. John’s Wort tincture and market it with the phrase “treats mild to moderate depression.” There are two problems with this claim. First, the claim says that the product can treat a disease. Secondly, it blatantly mentions a disease—depression. This claim is a disease claim, not a structure/function claim, and would cause the botanical to be regulated as a drug.

Even implying that a product relieves a disease by describing symptoms can be prohibited. For example, a botanical product cannot claim to “reduce cholesterol.” From a legal standpoint, this claim implies that the reduction is from high cholesterol, and the FDA considers that a symptom inextricably tied to cardiovascular disease.

What can a farmer say about their botanical products marketed as dietary supplements? Legally, all that can be said in marketing is that botanical products support the normal or healthy functioning of the body. In practice, what does this mean?

Let’s look at some allowable structure/function claims:

●     “Improves absentmindedness.”

●     “Helps to maintain cholesterol levels that are already within the normal range.”

●     “Regulates mild mood changes and cramps associated with the menstrual cycle.”

●     “Helps support cartilage and joint function.”

●     “Supports immunity.”

●     “Supports urinary tract health.”

●     “Promotes joint health.”

A claim must, of course, be true. In fact, producers need reliable scientific evidence to back up their marketing claims. Since the FDA doesn’t pre-approve structure/function claims, producers are not required to present this evidence to start selling. However, producers are expected to have this evidence and be able to provide it if the FDA asks for it.

These dietary supplement structure/function claims must be accompanied by the FDA disclaimer: “This [or these] statement[s] has [have] not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.” This disclaimer does not remove the producer’s responsibility to ensure the health-related claim complies with the regulations.

Cosmetics do not require the FDA disclaimer because it qualifies a structure/function claim. Structure/function claims aren’t allowed for cosmetics anyway, so the qualifier isn’t relevant!

Finally, a producer making a dietary supplement structure/function claim must notify the FDA within 30 days of putting the product up for sale. Botanical producers do not need FDA approval before making structure/function claims on their products. However, the FDA requires businesses to notify them about any such claims. No later than 30 days after first marketing the dietary supplement, companies must send a notification letter to the FDA, which includes the text of the structure/function claim you’ve made. Here is an FDA guide to submitting these notifications. Submitted notification letters are publicly available on the database described above.

What happens if my product is regulated as a drug?

If a producer makes a disease-related claim about a botanical, the law will classify that botanical as a drug. Drugs must follow strict pre-approval processes and health and safety regulations designed for pharmaceuticals. If a product is marketed as a drug without complying with these processes and regulations, it will be subject to FDA enforcement, which could include product seizures and fines.

The initial enforcement mechanism for disease claims on products that aren’t approved drugs is a “courtesy letter” from the FDA. This letter states which marketing claims were prohibited and why. Businesses are expected to immediately alter the product’s label and all advertisements, websites, and other materials to remove the prohibited claims.

What happens if my product is regulated as a dietary supplement?

Botanical producers using structure/function claims must automatically follow other dietary supplement-specific rules. These include federal marketing regulations, dietary supplement labeling, and cGMP regulations.

Should I worry about whether I’m practicing medicine by selling botanical products?

Additional state laws constrain what botanical producers can say about their product or even what their business name can be. For example, botanical producers can inadvertently violate state laws by telling clients that an herb could treat an illness or by using the word “apothecary” in their business name. Lack of awareness about health-related laws could trigger enforcement actions or even, in rare cases, criminal prosecution.

Like all states, Minnesota has a law making it a crime to practice medicine without a license. Generally, these statutes define practicing medicine rather broadly, including practices that are obviously in a doctor’s wheelhouse, like surgery, but also adding to the definition of relatively more common acts like diagnosing, treating, and curing health conditions. Minnesota’s statute goes so far as prohibiting anyone but a licensed doctor from diagnosing or treating “in any manner or by any means.” Due to the broad language of these statutes, many other types of healing arts—traditional healers, herbalists, and those touting the health benefits of foods—are limited in what they can do and how they can describe their services.

However, Minnesota is one of the few states that has passed a law protecting certain healing arts. The statute specifically protects culturally traditional healing practices, healing practices utilizing food or food supplements, and herbalism, among others. With this law in place, unlicensed alternative health practitioners can practice without fear of prosecution as long as they abide by specific rules. Even with this “safe harbor” law, however, it continues to be true that only licensed medical doctors can recommend discontinuance of medically prescribed treatments, diagnose, conduct x-rays, perform surgery, and a few other specific medical therapies. The Office of Unlicensed Complementary and Alternative Health Care Practice oversees Minnesota’s Complementary and Alternative Health Care community.

Are there rules around the production and manufacturing of botanical products?

A variety of state and federal laws control how a botanical product must be produced or manufactured. Similar to marketing regulations, production and manufacturing regulations also differ depending on whether the product is a conventional food, a cosmetic, or a dietary supplement.

Cosmetics

The Modernization of Cosmetics Regulation Act (MoCRA) regulates cosmetics. Small businesses with gross annual sales of less than $1 million are exempt from the legally defined cosmetic good manufacturing practices, as well as facility registration and product listing requirements. Producers developing cosmetics that exceed the annual sales threshold should use a web browser to search for the FDA’s website with more information on MoCRA.

Dietary Supplements

Dietary supplements are subject to rules around their manufacture. These rules are called current Good Manufacturing Practices, or “cGMPs” for short. cGMPs are a set of rules that describe (among many things) the equipment that must be used, quality controls implemented, tests made, and other standards around the production of these products. However, the FDA does not enforce cGMPs for herbalists who prepare products for individual clients. All other producers—including those selling tinctures at the local farmers’ market and wholesale value—added products to retailers–must follow the cGMPs.

Many farmers are already familiar with production regulations through the Food Safety Modernization Act’s Preventative Controls Rule. Dietary supplement cGMPs are similar. For example, they have many of the same sanitation, material choice, and worker health and safety rules. However, cGMPs for dietary supplements have additional requirements focused on product purity and consistency that are more stringent than conventional food cGMPs.

Dietary supplement cGMPs are stricter because of the unique characteristics of botanicals. Too much cheese in a cheese cracker will only impact the product’s taste, not its safety. However, many ingredients in a dietary supplement could be dangerous if too concentrated. Misidentified herbs could be harmful, and the concentration of the end product can vary based on the part of the plant used. These botanical qualities necessitate a different cGMP approach.

A foundational aspect of the dietary supplement cGMPs is product specification. The botanical producer determines the specifications (ingredients, concentrations, etc.) for each of their own products. Once those specifications are set, each batch must be tested against the producer-established specifications. Therefore, botanical producers have the freedom to set their parameters but are, after that, constrained and held to the specifications they set. Each product batch must be tested, and one sample from each batch must be retained for 2 years.

The most burdensome part of a cGMP program is often the paperwork. Producers must log the sanitation, maintenance, and training steps they take. Any facility producing dietary supplements must also register with the FDA. For more information on the full dietary supplement cGMP program, see the FDA’s Guidance Documents.

Botanical producers who do not want to comply with dietary supplement cGMPs can pursue alternative ways to market their products. Some options include selling unprocessed botanicals wholesale to other companies who produce dietary supplements, reevaluating product lines and marketing strategies so that you are only producing botanical products that can be marketed as conventional foods or cosmetics, or outsourcing processing of your farm-grown botanicals to a facility that provides cGMP compliance.

Conventional Foods

Federal food safety regulations have authority over food sold in interstate commerce. Traditionally, states have regulatory control over food safety regulations for foods sold within their state borders. Despite this state and federal division, all states rely on the FDA Food Code as a starting point for their own state-level food codes. Therefore, food safety regulation is similar across states, but states do add their own requirements and exemptions.

State rules typically require licenses/permits, food safety training, and inspection. Food safety is regulated on the federal level by FSMA’s Produce Safety Rule (PSR) and Preventive Controls Rule (PCR). FSMA’s PSR applies to farm-grown botanicals that are merely dehydrated and sold whole. However, these botanicals cannot be cut or mixed with other botanicals. Any processing beyond dehydration (other than packing and labeling) makes the product subject to PCR cGMP regulation.

For example, cutting, mixing, cooking, fermenting, or baking means the producer will have to follow the PCR cGMPs. The PCR has exemptions for certain low-risk manufacturing and processing conducted by small businesses on farms for specific low-risk foods, retail food establishments, and qualified facilities. Many producers will still need to register with the FDA, however. cGMPs under the PCR address worker health and safety, sanitation, equipment requirements, traceability programs, recall readiness, and more.

Here are some examples of botanical products and the health and safety or cGMP regulations that might apply to them.

Application of Botanical Regulations cGMPs = current Good Manufacturing Practices, PSR = FSMA Produce Safety Rule, PCR = FSMA Preventive Controls Rules, MoCRA = Modernization of Cosmetics Regulation Act
Example	Do cGMPs apply?	Notes
An herbalist works 1:1 with clients and prepares tinctures for them based on an individualized assessment.	No	FDA exercises its enforcement discretion to allow these botanical producers to prepare botanical products for 1:1 clients without adhering to DS cGMPs.
A farmer grows herbs and makes tinctures to sell at the farmers’ markets. The products are marketed with phrases such as “supports a healthy immune system,” “promotes restful sleep,” and “maintains healthy breathing.”	Yes	These are marketed as dietary supplements and are subject to the federal dietary supplement cGMPs. This botanical producer must follow the dietary supplement cGMPs.
A farmer grows herbs and then dehydrates them on-farm to sell at the local farmers’ market.	No	If covered by the PSR, this farmer will only be subject to the food safety rules found in the PSR. These activities fall within the definition of ‘farm.’
A farmer grows multiple herbs, dehydrates them, cuts them, sifts them, and mixes them for tea blends that are sold at retail.	Depends on claims made	Are structure/function claims made? The tea will be subject to the federal dietary supplement cGMPs.   If there are no structure/function claims made, then the farmer will be subject to the cGMPs of the PCR… if not eligible for a PCR exemption.
A botanical producer grows herbs and processes them into hand creams, salves, and hair rinses they sell at their farm stand.	Depends on size of business	These products would be cosmetics and subject to MoCRA. However, if the producer grosses less than $1 million/year, they are exempt from the cosmetic cGMPs and registration requirements.

Can I make botanical products in my home kitchen under a cottage food law?

States can decide that some foods can be made in home kitchens without the need to obtain a license or be subject to state food safety inspection. States pass ‘cottage food laws’ to make these exemptions explicit.

Botanical producers who want to process their products at home or on-farm may assume Minnesota’s cottage food law will allow them to do so without regulation. However, if the product is a dietary supplement, then you must follow the federal dietary supplement cGMPs. This means that any product marketed with a structure/function claim like “supports wellness” will need to be produced according to cGMPs, regardless of whether the product would otherwise be considered cottage food. A home or on-farm kitchen will likely not comply with federal dietary supplement cGMPs.

What about products classified as foods?

Minnesota’s cottage food law allows non-time/temperature-controlled and high-acid foods to be produced under the cottage food law. Registration is required, as is a food safety course. Sales are capped at $78,000, and only direct-to-consumer sales are allowed. Minnesota cottage food producers can never make dairy, egg, or meat products. Minnesota Cottage food laws must be labeled with the producer’s name and address and the statement “these products are homemade and not subject to state inspection.”

Botanical products that could be produced under Minnesota’s cottage food law include dried herbal tea blends, infused vinegars (if their pH is less than or equal to 4.6), flavored honeys, simple syrups, jams, ferments, and spice blends. Non-alcohol-based herbal extracts will also be allowed if they meet the not-potentially hazardous guidelines. Minnesota law prohibits any tinctures with more than 0.5% alcohol by volume from being considered a cottage food.

Elderberries are common in botanical production, but often, elderberry pH is too high to be allowed under Minnesota’s cottage food law. Any final elderberry product (syrup, jam, or jelly) that is not acidified must be heat treated and tested for pH or water activity to determine if it could fall under the cottage food licensing exemption.

To summarize, botanical producers have a couple of options to take advantage of the Minnesota Cottage Food Law.

●     If a botanical product is marketed as a conventional food, makes no structure/function claim, and otherwise meets the not-potentially hazardous standards of the cottage food law, then you will not have to procure a state license and can make the product in your home kitchen (assuming you go through registration and the food safety course).

●     Botanical producers that make dietary supplements may be able to take advantage of the licensing exemption at the state level but will still have to process their product at a facility that is compliant with the dietary supplement cGMPs, notify the FDA of your structure/function claims, and comply with dietary supplement labeling requirements.

Product of the Farm

In Minnesota, growers selling what are called “Products of the Farm” are also exempt from state licensing and some food safety requirements. Products of the Farm are those grown or raised by the seller on a farm occupied and cultivated by the seller. All ingredients from a food or processed product must be from the farm—if any other ingredients are added, the product will lose its Product of the Farm status.

Wild-foraged foods harvested on land the seller doesn’t own will not qualify as a product of the farm. Therefore, someone making a product for sale with wild-foraged items from someone else’s property cannot use the Product of the Farm exemption to avoid regulation. In this case, a producer could explore the cottage food exemption. But in both cases, note that Product of the Farm is a state exemption. It has no effect on federal law—federal law applies to everyone in every state, regardless of their state laws.

Botanical producers that incorporate honey can consider the hive—and wherever it might travel—as the farm. A honey producer’s hives can travel to land the producer doesn’t own, including out-of-state. The honey produced by the bees of that hive is still a Product of the Farm for the hive owner.

How does Product of the Farm status affect botanical products? Botanical products made entirely of ingredients grown or raised on the farm may be able to avoid state-level regulations. However, no additional ingredients like oils, waxes, or salt may be included. And, if any structure/function claims are made, federal law will kick in to regulate the claims made and the production practices through cGMPs.

Do Sales Taxes Apply to My Product?

Most food and food ingredients are exempt from Minnesota general use and sales tax. Dietary supplements made by botanical producers (e.g., tinctures) will be subject to the Minnesota general use and sales tax. Jam and other common cottage food items can be complicated. We think of these items as food or food ingredients, so we may assume they are exempt from sales tax. And, if these items are bought at a grocery store, they are not taxed. But, if the farmer produces the jam or cottage food item (assuming the product has at least two ingredients) and sells it at the farmers’ market or directly to consumers, then it is taxable.

Whether or not your product falls under the state tax, it could still be subject to local taxes. The Minnesota Department of Revenue has information about local sales tax available.

The Minnesota Department of Revenue has a flowchart and a factsheet on its website to help farmers determine if their foods are subject to taxes.

 

Moving Forward with Botanical Products

Now that we’ve covered key details about how the different types of botanical products are regulated, what action steps do you need to take to boost the legal resilience of your botanical products?

• Adjust and finetune the health claims used to market your botanical product(s).
• Connect with a peer to brainstorm new ways to market your botanical products and/or review some of your marketing claims.
• Research FDA Courtesy Letters to better understand allowable health-related claims.
• Read Farm Commons’ Farmers’ Legal Guide to Botanical Products to understand what details your botanical product labels should include.
• Seek clarity on how your product would be classified in the eyes of the law by calling the appropriate state agency.
• Research the cottage food laws in your state to figure out if any of your products can be made in a home kitchen.

Foraging Rights on Tribal, Federal & State Lands in Minnesota

Many botanicals are foraged or harvested from the wild or areas that weren’t cultivated or tended during the plant’s growth. For most of human history, people survived by foraging. The rise of agriculture, colonialization, urbanization, and commercial food production caused foraging to become discouraged or outright prohibited by law. Now, botanical producers interested in foraging need to be aware of the relevant federal, state, local, and Tribal regulations.

Most foraging rules allow some foraging for personal use without a permit. The quantities allowed are often limited to what a household could consume in a week. Producers who intend to sell what they forage will have to get further permits to do so, if available.

To determine what foraging is allowed on a particular parcel, the forager must first determine who owns the land they want to forage. Is it private land, federally owned, state-owned, or owned by a municipality? You will often need to know even more about the land’s management. For example, if it is federally owned, which agency manages it? If state-owned, how is the land classified?

Private land can only be foraged with the express permission of the owner. A producer seeking to forage private land should get written permission from the landowner. Any foraging agreement should spell out specific terms, such as:

●     How long will the agreement last (one season, one year, or multiple years)?

●     What plants are you allowed to harvest?

●     Are there quantity limitations?

●     When will you be able to access the land?

●     Are there any particular concerns about your use of the land? For example, are there gates that need to be closed after use?

A written agreement outlining the terms of a producer’s permission to forage on the private land will help protect the producer’s botanical sourcing.

Reserved Tribal Foraging Rights

Native Americans have exclusive foraging rights on Tribal lands held as reservations, in trust, or with restricted fees. Non-Indians and Indian non-Tribal members do not have the right to forage on reservation land without the consent of the Tribe. Non-Tribal members granted access must comply with Tribal rules, regulations, and ordinances governing foraging.

Native Americans also have treaty-protected reserved foraging rights on land ceded to the state of Minnesota off-reservation. These treaties are “not a grant of rights” but a recognition of the rights Native Americans retained when ceding territories to the U.S.  as part of a series of treaties created in the mid-1800s. The U.S. and state governments have questioned and imposed restrictions on these reserved rights since they were first federally recognized. However, the reserved rights have continually been upheld. The agreements in these treaties grant Tribal members co-management authority over the natural resources in the ceded territories.

For example, the Fond du Lac, Bois Forte, and Grand Portage bands have reserved foraging rights in what is today called Minnesota’s Arrowhead Region, covering approximately 5.5 million acres over six counties. Furthermore, as of 2016, Minnesota’s Department of Natural Resources does not require state licensing or permitting to harvest wild rice of Tribal band members who possess a valid Tribal identification card from a federally recognized Tribe located in Minnesota.

Some bands of Tribal signers of treaties reserving foraging rights have formed agencies to oversee off-reservation harvesting and support Tribes’ treaty rights. For example, the Great Lakes Indian Fish and Wildlife Commission was formed in 1984 and was followed shortly by the 1854 Treaty Authority, both of which support the development and enforcement of reserved rights to hunting and gathering.

Federal Lands

Seven federal agencies manage non-Tribal nationally owned forests, parks, and wildernesses. Each agency handles permitting and foraging rules differently. Furthermore, National Parks managed by NPS allow each park’s Superintendent to establish their own rules. So, no matter the geographic distance, NPS parks will likely have different rules on foraging. See below for an overview of foraging allowed on federal land in Minnesota managed by the National Park Service, U.S. Forest Service, U.S. Fish & Wildlife Service, and the Bureau of Land Management.

National Parks

6.8% of Minnesota’s land is federally owned, and 272,000 acres are National Parks. Voyageurs National Park is the largest, on the state’s northern edge. Mississippi National River and Recreation Area is 54,000 acres, running through Minneapolis and St. Paul. Smaller national parks include Grant Portage National Monument, North Country National Scenic Trail, Pipestone National Monument, and Saint Croix National Scenic Riverway. Each of these parks may have different foraging rules and requirements.

Voyageurs National Park allows foraging for specific products for limited uses and quantities: strawberries, chokecherries, rose hips, blackberries, raspberries, blueberries, cranberries, mushrooms, acorns, and wild rice. These products can only be collected by hand for personal use and consumption. The amount allowed is limited to a gallon per person per day.

Mississippi National River and Recreation Area allow limited foraging. Visitors can hand-gather small quantities of the fruit, berries, or mushrooms of native vegetation in the park for personal consumption. No trees (maple or otherwise) may be tapped for sap, nor may wildflowers be collected.

More extensive gathering is only allowed in the Mississippi National River and Recreation Area for enrolled members of federally recognized Indian Tribes who gather and remove plants or plant parts for traditional purposes. The Tribe must be traditionally associated with this specific park. This authorized plant gathering must be sustainable and may not significantly adversely impact park resources or values.

NPS regulations prohibit the sale and commercial use of plants or plant parts within any part of the National Park System.

U.S. Forest Service National Forest System Lands

Minnesota has two national forests managed by the USDA U.S. Forest Service—the Chippewa and the Superior. The Chippewa National Forest encompasses 1.6 million acres in north central Minnesota and shares a boundary and co-management with the Leech Lake Band of Ojibwe.

The U.S. Forest Service allows visitors to forage whatever they can eat during their visit without a permit and to take a small amount home. However, any edible material used for commercial purposes requires a permit. Christmas trees, birch bark, balsam boughs, and maple tapping always require a permit.

Forest products used for traditional and cultural purposes will be provided to Indigenous Tribes free of charge, but these products may not be used for commercial purposes.

U.S. Fish & Wildlife Service

The U.S. Fish & Wildlife Service manages more than 10,000 acres of grassland and wetland habitat in Minnesota, known as the Minnesota Valley Wetland Management District. Foraging for nuts, berries, and mushrooms is allowed, but only for personal use. Nothing foraged from the district may be sold.

Limitations on the ability to forage include:

●     Motorized vehicles cannot be used to access plants,

●     Digging plants for their roots or removing them is prohibited,

●     Trees cannot be cut or damaged,

●     Watercress harvesting is prohibited,

●     No threatened, endangered, or species of special concern may be harvested, and

●     Any plant considered a noxious weed cannot be cut to prevent its spread.

Additionally, visitors must apply for a permit to hand harvest native prairie plant seed.

Bureau of Land Management

On BLM lands in Minnesota, foragers can collect reasonable amounts of flowers, berries, nuts, seeds, cones, and other plant parts, but only for non-commercial purposes. Nothing that is threatened or endangered can be disturbed.

State-Owned Land

State Parks & State Forest Recreation Areas

Minnesota law protects wildflowers and vegetation on state-owned land from removal, damage, or destruction. This includes plants, whether they are alive, dead, or decaying. However, a person in a state park or forest recreation area may collect edible fruit or mushrooms for personal consumption.

Most other (i.e., commercial) foraging in state parks is allowed only with special permission. The following foraging activities are prohibited in state parks, except with the written consent of the commissioner:

●     Commercial foraging of any kind,

●     Harvesting wild rice on bodies of water enclosed within a state park boundary or

●     Collecting or possessing naturally occurring plants in a fresh state.

However, as part of the treaty-protected reserved Tribal foraging rights, Tribal band members who possess a valid Tribal identification card from a federally recognized Tribe located in Minnesota do NOT have to acquire a state license or permit to harvest wild rice.

State Forest Lands

Minnesota has 4.2 million acres of state forest lands. Visitors can collect small amounts of berries, mushrooms, or cones from a state forest, Wildlife Management Area, or Aquatic Management Area for personal use. Quantities are limited to the amount you or your household could consume weekly.

Permits are required to cut or remove trees, such as birch bark, fiddlehead ferns, or flowers. Any amount of berries or mushrooms over what your household could consume in a week needs a permit, as do any forest products you intend to sell. No trees can be tapped for maple syrup for personal or commercial use. Christmas trees, boughs, and other decorative forest products all require a permit.

Permit fees begin at $25 and require a detailed plan outlining where and what you intend to harvest. Visit the Department of Natural Resources website for more information on obtaining a permit.

State Recreation Areas, State Waysides, State Trails

We have yet to discuss other state lands, including state recreation areas, state waysides, and state trails. In the first two, edible fruits and mushrooms can only be foraged for personal consumption. State trail foraging is limited to edible fruits found along the trail.

Commercial harvesting isn’t allowed on any of these types of land, and picking wildflowers or any other plants—edible or not—even in small amounts for personal use is not allowed.

Moving Forward with Foraging

Now that you have an idea of how foraging is regulated across Tribal, Federal, State-owned, and private lands, it’s time to assess what you need to do to build your resilience moving forward.

Reflect on the questions below to help you identify your next steps:

●     Do you forage on land that is privately owned? If so, make a plan to get written permission to forage on that land if you haven’t already done so. Any foraging agreement should spell out specific terms, such as:

○     How long will the agreement last (one season, one year, or multiple years)?

○     What plants are you allowed to harvest?

○     Are there quantity limitations?

○     When will you be able to access the land?

○     Are there any particular concerns about your use of the land? For example, are there gates that need to be closed after use?

●     Do you forage for commercial production on public lands? If so, identify the government agency that owns or manages the public lands you forage on. Spend some time looking into the policies associated with commercial foraging on that land and ensure you understand the rules and limitations. If you find that you are in need of a permit, make a plan to call the relevant authorities to inquire about the permitting process for commercial foraging.

Funder Acknowledgement

This factsheet was developed by Farm Commons in partnership with Kathy Zeman of the Minnesota Farmers’ Market Association, Jane Jewett, Associate Director of the Minnesota Institute for Sustainable Agriculture, and Cindy Hale of Clover Valley Farms in Duluth, Minnesota. The work was supported by USDA/NIFA under Award Number 2023-70027-40444.