In a way it’s almost funny – all this time a lot of the food policy community’s attention is drawn to seed laws in the US, dissecting Supreme Court cases and hidden Congressional amendments, while at the same time the European Commission is drafting what seems to be at least equally harsh legislation with a much smaller public outcry. Or maybe I have just been oblivious?
Either way, come May 6th, the European Commission is going to vote on a draft directive that bodes poorly for seed diversity, and there seems little the public can do other than petition their EU Commissioners vote against it. The Arche Noah petition has 170,000 signatures so far.
So what is this all about? Basically, the EU has different Directorates that are responsible for different issues. The Directorate General for Sanitary and Consumer Affairs has been revising legislation on plant reproductive material (aka seeds – this is often abbreviated to PRM) for some years now, and has come out with a legislative draft that is opposed both by the Directorate for Agriculture and the Directorate for Environmental Affairs due to its possible detrimental effects on biodiversity and agricultural and ecosystem sustainability.
The law is ostensibly aimed at protecting consumers’ health in mandating that only “genetically pure, quality-assured” seeds can enter the market and be sold (and therefore be grown into food which is sold thereafter to consumers). Thus, there is the requirement for seeds that are marketed to meet the DUS requirements (to be a variety that is distinct, uniform, and stable) as well as to prove their VCU (value for cultivation and use). To meet these requirements, it is mandatory (Art. 25 (1)) that all seed varieties that enter the market be registered (at considerable expense), and a registration fee has to be paid for every year. If the registration fee is not paid, the variety is automatically deleted from the register (Art. 87e).
This poses two fundamental problems, as many NGOs have pointed out:
- A lot of heirloom varieties are per definition not distinct, uniform and stable. That is what makes them so valuable for the resilience of our agricultural systems – they have genetic variability that can adapt to small environmental changes.
- The registration procedure is way too cumbersome and expensive for small farms or seed growers, and would de facto force them out of the market, making way for big seed companies to get a monopoly in the market similar to the developments in North America.
Once you get into the nitty-gritty of the legislation, it gets very complex, with some news agencies claiming that the EU would regulate what fruit and vegetables you can grow in your own garden, and the EU vigorously denying these “allegations” (although, if you cannot purchase different seeds and some of the seed-swapping becomes punishable by law, that practically limits your choices to the EU’s allowed seed varieties anyhow, no?)
Many consequences of the proposed law are also unclear, and some final decisions might become “delegated acts” that are decided in committee without any democratic influence. Here are some of the concerns of NGOs:
- Which seeds does this regulation apply to? While previously, derogations had been in place that protected biodiversity and made registration of ‘amateur’ (non-commercially viable) varieties easier, these have been removed in the current draft. For example, previously these amateur varieties were able to be ‘registered by description’; this now only applies to already previously known varieties and not for new emerging ones. Thus, all agronomic plant varieties that are grown in the EU would have to be registered with tests etc. under the current proposal, which could have huge dampening effects on the active support of biodiversity through the discovery of new varieties.
- Who does this regulation apply to? Previously, operators ‘handling’ small packets of seeds were exempted (Art. 5); this now only applies to shops ‘selling’ these packages, but not those who actually produce them. This means small home garden seed producers would suddenly be burdened with a ton of EU red tape which they might be unable to afford. For example, there is also a requirement that all seed packets be sealed to prevent tampering (Art. 27); while this might be a concern for big bulk bag of seeds for farm use, there is no evidence that tampering is a concern for home gardening seed packets. Yet, those machines cost upward of 40,000 Euro and thus pose a considerable barrier to entry in the industry.
- What is this legislation’s aim? Opponents argue that mandatory registration is completely disproportionate to the stated goal – of protecting consumer health and (possibly) the intellectual property rights of big seed growers. These goals could be reached by focusing on the large farm-destined seed sales and/or by making registration voluntary, so that holders of intellectual property for who it is commercially viable could protect this right, but smaller producers aren’t forced into bankruptcy and heirloom seeds aren’t outlawed.
- What will happen to seed swaps and the exchange and sale among individuals of traditional seed? The draft appears to make farmers’ exchange of seeds from their own harvest, a century-old tradition, punishable by law. According to this group of NGOs, this approach is flawed in a number of ways – first, such activities are not commercial in the first place, but are complementary to farmers’ commercial activities by providing a highly functional division of labor in rural communities; second, this will drastically reduce local food security and resilience in the case of extreme weather events; and third, this will reduce the very low-cost protection of seed biodiversity in situ (where they are used) and further increase expensive ex situ efforts to maintain biodiversity (for example in the Svalbard Global Seed Vault).
Thus, the demands of civil society are as follows:
- The scope of the legislation should be limited in general to the marketing of PRMs with a view to commercial exploitation above certain quantities;
- Registration and certification with costs and sampling should not be mandatory for varieties without intellectual property rights and those that are open pollinating;
- Voluntary registration based on officially recognized descriptions should be possible for all species, without time restrictions and without specification of “region of origin”;
- The voluntary exchange of PRMs between farmers (and individuals) should be excluded from the scope of the legislation;
- Micro and small enterprises should only have to comply with basic rules concerning the operators as long as they
are not dealing with any technique of genetic modification or with PRM protected by intellectual property
- DUS criteria and testing methods should be adapted for varieties that are bred to support the needs of
agro-ecological systems, ensuring that open pollinating varieties and seeds bred for organic farming or specific local conditions are not discriminated by (even voluntary) registration, certification and plant
- Breeders should provide information to the public on breeding methods and Intellectual Property Rights
associated with a variety and its parent lines when applying for registration.
For even more information (and a somewhat more political analysis than this one) of the issue, this blog post gives a great overview. If you are thinking that you would like to make your voice heard before May 6, head here for some ideas who to contact.
Personally, I am appalled that this seems to be going forward, especially after so much attention to the importance of biodiversity (also and especially in our food sources!) in the recent past. I sincerely hope that the sweeping inclusion of traditional varieties, micro-enterprises etc. was just a huge bureaucratic faux-pas and will be corrected before the legislation passes, because honestly, I just don’t see any benefit to it, to anybody, whatsoever (without diving into huge conspiracy theories). Hopefully this will stay a “guess what happens if we didn’t have civil society looking on bureaucrats’ fingers” and not a David vs. Goliath fight over our seed sovereignty…