1. ------IND- 2010 0804 NL- EN- ------ 20110105 --- --- PROJET 
I, BEATRIX , BY THE GRACE OF GOD, 
QUEEN OF THE NETHERLANDS , PRINCESS 
OF ORANGE -NASSAU , ETC. ETC. ETC. 
 
 
  
  
 
    Upon the proposal of the Minister for Public Health, Welfare and Sports dated 8 December 2010, reference: DWJZ/SWW-3039313, thereby consulting with the Minister for Economic Affairs, Agricult ure and Innovation and the Minister for 
Safety and Justice; 
  
Having regard to Article 5, first paragraph, part a, under 1°, Article 9, under b, and Article 32b of the Commodities Act; 
 
Having heard the Advisory Division of the Council of State (advice       
number       ); 
 
Having reviewed the additional report by the Minister of Public Health, Welfare and 
Sports of       , reference:      , issued after consulting with the Minister for 
Economic Affairs, Agriculture and Innovation, and the Minister for Safety and Justice;  
 Hereby approve and decree as follows:   
Article 1  1. The following definitions shall apply when used in the present Decree: a. Lucky Bamboo: an ornamental plant, with the scientific name Dracaena 
sanderiana, including the material into which the plant is put; 
b. Asian tiger mosquito: an insect, with the scientific name Aedes albopictus , 
including its eggs, larvae and pupas; c. Partitioned-off room: a room separated from its surroundings by closed partitions. 
2. In the context of the present Decree, a shipment of Lucky Bamboo plants lot shall have the same meaning as the plant. 
 Article 2  Violation of the requirements set forth under Articles 3 and 4 is forbidden.    Article 3  
Lucky Bamboo plants:
 
a. shall be sold free of Asian tiger mosquitoes;  Decree of 
 laying down the rules for the product requirements for Lucky Bamboo plants (Lucky Bamboo (Commodities Act) Decree)  b. shall enter the territory of the Nether lands from third countries and be further 
transported in sealed containers, and shall only be opened in the Netherlands for the first time in a partitioned-off room as  described in Article 1, under c, of the 
present Decree;  
c. shall not leave the room described under b unless they have been adequately treated with a biocide agent fit to make the plants free of adult Asian tiger mosquitoes;  
d. shall not leave the room described under b unless they have been adequately 
treated with a biocide agent fit to make the plants free of Asian tiger mosquito larvae; e. shall be treated with the biocide described under d. each time the Lucky 
Bamboo plant is watered by adding the agent to the water, as long as the plant is 
in the partitioned-off room. 
 Article 4  1. The seller shall have an insect control strategy for the treatment described in Article 3. 2. In addition, the seller shall have documentation in which the data relating to the implementation of the insect control strategy are systematically recorded.   Article 5  The annex to the Administrative Penalty (Commodities Act) Decree is hereby 
amended as follows:  1. In the section with the title, Table of Contents,  the following heading is inserted 
after the C-44 heading:  
 
C-45 Lucky Bamboo (Commodities Act) Decree 
 
2. In the section with the title, Description of the violation,  the following heading 
with related entries is inserted after the C-43.1.4 heading:  
C-45 Lucky Bamboo (Commodities Act) Decree € 1590 € 2100 
C-45.1.1 Article 2 in conjunction with Article 3  € 1590 € 2100 
C-45.2.1 Article 2 in conjunction with Article 4, paragraph 
1 € 1590 € 2100 
C-45.20.2 Article 2 in conjunction with Article 4, paragraph 
2 € 1590 € 2100 
 
 Article 6  1. The present Decree shall enter into force as of the day following the date of issue of the Official Gazette in which it is published. 2. Departing from what is set forth in the first paragraph, Article 5 shall enter into 
effective force 8 weeks following the date of issue of the Official Gazette in which it is published.        
  
Article 7 
 The present Decree will be quoted as: Lucky Bamboo (Commodities Act) Decree.   I order this Decree to be published in the Official Gazette together with the associated explanatory memorandum.  The Minister for Public Health,  Welfare and Sports,     Mrs Drs. E.I. Schippers   Explanatory memorandum Explanatory memorandum 
 General remarks  This Decree replaces the Temporary Lucky Bamboo Product Requirements under the Commodities Act issued as an urgent measure. The Temporary (Commodities Act) Regulation is terminated by operation of law on the date the present Decree comes into force.  The import of Lucky Bamboo plants from third countries (non-member states of the European Union or the European Econom ic Area) comes with the import of the 
Asian tiger mosquito (hereinafter referred to as the “tiger mosquito”). A shipment of plants (including growth media) often contains eggs, larvae and pupas of these 
mosquitoes. When transported or in glasshouses, such eggs, larvae and pupas may develop to become mosquitoes. The plants originate from regions where the dengue fever virus is an endemic virus spre ad by tiger mosquitoes. In addition, it 
has been proven that the mosquito is a carrier of various other diseases that are hazardous to humans. Tiger mosquitoes must be prevented from being imported and settling in the Netherlands, because they may spread hazardous diseases and therefore are a threat to public health. Any reference in this explanatory memorandum to tiger mosquitoes shall be read as including their eggs, larvae and pupas as well.  Hazardous to public health  Tiger mosquitoes have an aggressive biting behaviour, thereby causing a significant burden on the population. Although the spread of tiger mosquitoes from Southern Europe towards the Neth erlands in the long term must be 
accounted for, implementing the required precautions to prevent Lucky Bamboo plants from spreading the tiger mosquitoes will address the threat that is beyond the inevitable. It will also prevent large-scale insecticide campaigns, such as those currently in place in Spain, Italy and France, from being required earlier than absolutely necessary.   The benefits for public health significantly outweigh the inconvenience of potential hindrance to free trade, because the present Regulation is aimed at minimising the risk of humans being bitten by tiger mosquitoes and becoming severely ill. In 
addition, another factor to consider is that restrictions to the Lucky Bamboo trade are only slightly more burdensome than the restrictions currently imposed on importers and sellers on the basis of the Temporary Regulation.  History  In October of 2007, an agreement was entered into with all registered importers of Lucky Bamboo plants with the covenant that they would import the plants free of tiger mosquitoes (2007 Official Gazette 224). Monitoring of glasshouses by the Phytopathological Division (PD) commissioned by the National Institute for Public Health and the Environment (Rijksinstituut voor Volksgezondheid en Milieu, RIVM) showed that tiger mosquitoes were still being caught at various importing companies in the period starting in June of 2008. The importers were promptly sent a letter in which they were questioned about the situation. However, tiger mosquitoes were still being caught. Beca use the covenant to put forth adequate 
efforts as described in the agreement failed  to lead to the desired result, more far-
reaching measures were necessary.  In September of 2008, the RIVM advised to make a law of the requirements set 
forth in the agreement to ensure that the arrangements to prevent tiger mosquitoes from being imported could be enforced.
1 The result was the 
aforementioned Temporary (Commodities Act) Regulation pursuant to Article 15, first paragraph, of the Commodities Act. Fewer tiger mosquitoes have been caught 
since this regulation has been in force, showing that this policy is effective.  Requirements  The enactment of the present Decree comes with the replacement of the Temporary (Commodities Act) Regulation, and imposes on all importers and sellers the requirement that any Lucky Bamboo plants traded by them are free of tiger mosquitoes. It is obvious that the importers involved have already made arrangements with their suppliers in the country of origin on the basis of the covenant in the agreement and the later Temporary (Commodities Act) Regulation. 
This is reasonable since it is the responsibility of anyone having a Lucky Bamboo plant business to ensure that the regulations leading to mosquito-free Lucky Bamboo plants are actually complied with. Because the requirements apply to both sellers and suppliers, the sellers are unable to escape their responsibility by hiding behind their suppliers.  In addition, all importers shall continue their practice, initially pursuant to the covenant in the agreement and later pursuant to the Temporary (Commodities Act) Regulation, to have Lucky Bamboo plants from third countries entering the Netherlands in sealed containers, and not to open such containers until they have arrived in partitioned-off rooms.   This general administrative measure further requires the importer to treat the plants upon their arrival at the site with a biocide to make the plants free of adult tiger mosquitoes and a biocide to kill tiger mosquito larvae.  It may be more difficult to detect and fight the eggs and larvae than the adult 
mosquitoes. Tiger mosquito eggs primaril y develop to become larvae within 48 
hours of coming into contact with moisture. Therefore, any eggs present will develop within the period of time the plants are being cultivated. For this reason, the biocide to kill larvae must be added each time a plant is watered. It is deemed impossible for tiger mosquitoes to survive in any phase of their life cycle in the 
glasshouse if a proper insect control strategy is carried out.   Lucky Bamboo plant sellers are free to decide which biocide agent they want to use, provided it is effective and authorised for use in this application. If needed, sellers may support applying for the required authorisations or extensions for agents that are already authorised. As of 1 June 2011, the Minister for Infrastructure and the Environment will not grant any exemptions for biocides, unless an official application for an authorization is being processed by the Board for the Authorisation of Plant Protection Products and Biocides (College voor de toelating van gewasbeschermingsmiddelen en biociden, Ctgb). The trade in Lucky Bamboo plants is forbidden, unless the plants have been treated with such a biocide.  
                                              
 
1 Advice by the National Institute for Pubic Health and the Environment to the 
Minister of Public Health, Welfare and Sports dated 9 September 2008. Monitoring and enforcing 
 By incorporating the prohibitive rules into the Administrative Penalty (Commodities Act) Decree, the Minister  will be authorised to impose an 
administrative penalty if a violation has been found. Aside from the control officers of the Food and Consumer Product Safety Authority (Voedsel en Warenautoriteit, VWA), the PD control officers will also be responsible for monitoring compliance with this Decree (2009 Official Gazette 855). These inspectors are authorised to create penalty reports, whereafter imposing and processing the administrative penalty will be taken care of by the VWA on the basis of the rules relating to the Minister for Public Health, Welfare and Sports’ Mandate.   Administrative burden and effects for companies  The present Decree does not have any consequences for the citizens’ administrative burden. The effects for companies are minimal.   The requirement to develop an insect control strategy will increase the administrative burden by (8 hours x € 37.00 x 8 companies =) € 2048.00. The requirement to keep records of the insect control strategy will increase the administrative burden by ((5 minutes x 26 times = 2.2 hours) x € 24.00 x 8 companies =) € 416.00.  The financial impact will also be limited, since the advised biocides are cheap insecticides.   Transitional right  
 The present Decree will replace the Temporary (Commodities Act) Regulation by a Decree with an identical objective. Because practices have already been adapted to the requirements of the Temporary (Commodities Act) Regulation, and the present regulation only adds a few procedural modifications to existing product requirements, it is possible to immediat ely implement these modifications within 
the processes already in place with the sellers. For this reason, there is no need for a transitional arrangement.  Regular Consultation Meeting on the Commodities Act   The draft version of the present Decree has been submitted to the participants in the Regular Consultation Meeting on the Commodities Act (Regulier Overleg Warenwet, ROW)
2. The resulting comments have been taken into consideration if 
and when needed.   Notification to the European Commission (Directive 98/34/EC)  A draft version of the present Regulation was notified on [date of notification, TBD]  to the Commission of the European Communities [notification No., TBD] in compliance with Article 8, first paragraph, of Directive 98/34/EC of the European Parliament and of the Council of the European Union of 22 June 1998, laying down a procedure for the provision of informatio n in the field of technical standards and 
regulations and of rules on the services of the Information Society (OJEC L 204), as amended by Directive 98/48/EC of 20 July 1998 (OJEC L 217).  
                                              
 
2 Participants in the ROW are representatives of businesses (industry and 
commerce), consumers, ministries (namely of Public Health, Welfare and Sports, Economic Affairs, and Agriculture and Innovation), the Food and Consumer Product Safety Authority and marketing boards and commodity boards.  The notification to the European Commission is required because the draft 
regulation contains technical requirements  as described in Directive 98/34/EC. To 
the extent the present Decree contains import restrictions of a quantitative nature or measures with a similar effect, such me asures will be justified as protecting 
public health.    Opinion by the European Commission TBD  Overview of Articles  Article 1 
 A partitioned-off room if used in the present Decree shall mean that the room is permanently or semi-permanently separated from other rooms. There are no 
requirements relating to the way in which the partitioned-off room is or can be 
separated from its surroundings, as long as it is suitable to keep any mosquitoes released from Lucky Bamboo plants isol ated in the room. For example, the 
partition may be a moveable enclosure. A plastic canvas hanging down is inadequate, 
a roller wall or roller blinds may be adequate.  
 The inspector is responsible for deciding whether or not the seller’s room is fit for use as a partitioned-off room. 
 
Article 3  For definitions of the terms ‘seller’ and ‘s elling’, please refer to the Commodities 
Act.  Article 3, under a  The business in Lucky Bamboo plants if th ey are not free of tiger mosquitoes is 
forbidden. The ban applies to the entire supply chain, from the moment of import 
up to the sale to consumers. Each party involved is responsible for ensuring that plants under the party’s control are free and remain free of mosquitoes. The regulation requires the seller, who is the first one to open the imported container with Lucky Bamboo plants, to take additional precautions.  One or more contaminated Lucky Bamboo plants in a shipment will make the entire shipment contaminated.  Article 3, under c, d and e  To fight tiger mosquitoes, Lucky Bamboo plants must be adequately treated with biocides upon receipt of the containers, before they are resold. The treatment must be carried out in a partitioned-off room with a biocide fit to make the plants free of adult mosquitoes and a biocide to kill the larvae. In addition, a biocide to kill larvae must be added to the water each time the plants are watered in that room. All this must be recorded within the insect control strategy (see Article 4).  Whether or not the treatment is adequate depends on various factors. The inspector will decide whether or not the treatment is “adequate” by considering factors, such as the biocide and its use (o n the basis of the legal requirements and 
directions for use), the number of plants, the number of mosquitoes caught, and the insect control strategy.   The requirement for adequate treatment in a partitioned-off room must 
adequately ensure that the Lucky Bamboo plants are free from mosquitoes when they move forward in the supply chain. However, the seller may still be considered as not having complied with the requirements set forth in Article 3 thereby violating Article 2, if tiger mosquitoes are found further down in the supply chain.  Article 4  The insect control strategy must lead to an adequate treatment, and must at least describe which biocides will be used, how th ey will be used and at what intervals 
the Lucky Bamboo plants must be made free of adult mosquitoes and larvae. 
 The seller is responsible for developing and implementing an insect control strategy and for its proper documentation. An inadequate insect control strategy is a violation of the first paragraph.    Article 5  This Article describes selected modifications to the Administrative Penalty (Commodities Act) Decree. They set forth that each violation of the requirements 
laid down in the present Decree can be penalised with an administrative penalty of € 1590.00 for small companies (50 employees or less) or an administrative penalty of € 2100.00 for the larger companies (more than 50 employees).   The business of Lucky Bamboo plants without preventative measures is a threat to public health. The Decree is aimed at killing mosquitoes spreading various diseases harmful to humans, which have the potential to become very serious and may lead to death. Furthermore, the entrance of tiger mosquitoes through the import of Lucky Bamboo plants may have  irreversible effe cts. Fighting the 
mosquitoes will become much more difficul t, if not impossible, once they actually 
settle in the Netherlands. Measures aimed at minimising the risks for public health must come with tangible 
penalties. Because the trade in Lucky Bamboo plants has an annual value of millions, the penalty to be imposed for non-compliance must be so high that non-compliance cannot be factored in as a business risk, for the prevention to be effective. Furthermore, the value of the penalty also reflects the seriousness of the threat to public health.   Article 6  The present Decree’s effective date departs from the rules of fixed dates for amendments. This decision was made because the legal predecessor of the present Decree would legally lapse on 22 January 2011, which means that the present Decree was to come into force before that date to avoid a situation where no rules are in force for a certain period of time.  Following the rules for amendments on fixed dates would have delayed the implementation by months, which is unacceptable in view of the objective of the present Decree.  The effective date described in Article 5 was decided pursuant to Article 32b, second paragraph, of the Commodities Act.       
The Minister for Public Health,  Welfare and Sports,    Mrs Drs. E.I. Schippers