Does the new EU seed law have anything to offer?

Today is the International Day for Biological Diversity. The theme this year is Water and Biodiversity, which may be why I am in Bonn, at a conference on Water in the Anthropocene. Bravely ignoring the vast swathes of biodiversity that call fresh water home, I’d rather focus on agricultural biodiversity, and the recent proposals for revising the dreaded EU seed laws. Tl;dr? They’re pretty good.1

A couple of weeks ago the European Commission adopted new proposals for the marketing of plant reproductive material. People with an interest in agricultural biodiversity have been waiting a long time, and have put a lot of effort into telling the European Commissioners what they would like to see. They didn’t get everything they wanted – more of that later – but they did get quite a lot. So what was the response?2

  • BREAKING: European Commission to criminalize nearly all seeds and plants not registered with government.
  • We don’t accept this. Let us keep our seeds EU!
  • EU Targets Seeds and Gardeners; Critics Lash Out
  • New European Law To Illegalize Unregistered Government Vegetation

Etc. etc.

All of which is just plain wrong. The new proposals actually decriminalize some activities that were outlawed by previous versions of the seed laws. They also set gardeners free to exchange and grow any varieties they like. And there are other provisions that give micro-enterprises and seed banks licence to do things that larger concerns cannot. In my view (and I hate to pull the I’ve-been-at-this-a-while card, but I have) the new proposals permit officially throughout the EU things that previously were ignored to a greater or lesser extent in different member states.

Of course the devil is in the details – he always is – and we will have to see how the various gaps and derogations in the proposal pan out in the different countries of the EU. And the fundamental premise of the proposal remains all wrong.

Everything not permitted is still forbidden, and things that may soon be permitted could be forbidden (again) in future. Like many others, I’d like a system that the rest of the world enjoys, where breeders and growers can choose to avail themselves of the qualities that seed certification and registration offers. I’d also like world peace and harmony and for everyone to just get along.

But let’s be realistic. The EU was never going to admit that the original 1966 seed laws were a complete mistake. They have listened to some of what they were told in their efforts to find out what people wanted, and the final regime contains elements from the two most popular options. If I were still in the business of selling seeds or produce, I’d be wondering how to make the most of my new-found freedoms, while perhaps at the same time continuing to plot final escape and redemption.

BTW, theres some very interesting reading – for and against – in the Impact Assessment on the Proposal undertaken by Commission staff. I hope to find the time (and the raw data) to analyse some of the very interesting differences among member states.

  1. In fact my greatest disappointment is that in the long list of people and organizations that did take the time to share their views on this important matter with the EU, some that say they’re concerned about the diversity available to and used by farmers in their fields are prominent by their absence. []
  2. No links; I don’t want to feed the trolls. []

19 Replies to “Does the new EU seed law have anything to offer?”

  1. I must say I think the EC (and Jeremy’s interpretation of it) are about right. I did wade through much of the magnum opus and it does appear to offer seed maintainer and conservators good opportunities to enhance their activities. However, I fear given the previous situation this is something we need as community to follow closely to ensure we do not get a repeat of the 1960’s diversity loses!

  2. First of all I’d like to point out that there’s a difference between illegal and criminalized. Most of us understand that while parking our car in the wrong place might be illegal, you aren’t likely to be called a criminal. As far as I know, activities concerning the use of seeds in Europe have never been a crimal activity, only something that might get you fined or your seeds confiscated.

    The other thing is that there might be some good aspects of the new regulation, nearly all of it is dependent on ‘delegated acts’, and the whole law can potentially be turned upside down in this way. Delegate acts are details to be decided later by a presumably seed industry dominated committee, outside of democratic process.

    It’s important to point out too, that before EU seed law was based on a number of directives interpreted in each member state. This is a regulation, and will come into force directly as law, without local interpretation. It is still possible however for member states to add additional local regulations.

    I might say that these good aspects of the law came after quite some work on a lot of people’s parts. They weren’t any free gift from the EU Commission, although there are clearly some friendly elements working from within the Commission. As the law goes through the Parliament and EU Council, there’s always the possibility of losing some or all of these good things. There’s still room for improvement, and there’s still work to be done. The regulation could look very different when it’s finally passed.

  3. I have been puzzled by the reaction to this proposal in Portugal, but I see that the reaction elsewhere in Europe is similar. A bunch of non-profit organizations have associated with the protests against the earlier versions of the legislation, but when the the final proposal came out they kept voicing the same protests and frankly appeared to not have read the document. I’ve read and heard to dozens of opinions on TV, newspapers and the social media where people invariably condemn the prohibition of seed swapping between farmers and the mandatory registration of all seeds.

    I do agree that the spirit of the law is wrong and that people need to stay vigilant throughout the following legislative steps (not least at the national level). Nevertheless, if people keep focusing on the wrong issues, the pressure on politicians will be very ineffective.

    Frustrating…

    1. I think I’m part of the bunch of non-profit organiations you’re talking about.

      I distance myself completely from the suggestion there was ever a serious issue of banning seeds for home gardeners. The problem was one person put a misrepresentation of the situation on his website and Facebook page, and it just went completely viral around the Internet. Right-wing American media is very quick to pick up on this kind of thing, to show that all governments are oppressive. It went from Europe to the US and back to Europe again, and was just all wrong. By the time this happened there was nothing the NGOs could do but just sit back and let it happen. None of us agreed with it, and we all find it just as frustrating as you. This got translated into local languages, and there was just nothing anybody could do about it.

      One of the problems we had was, like you said, we were preparing to stay vigilant and keep up the pressure. At the very last moment there were some dramatic changes to the draft that caught us off guard. All of a sudden we were faced with a totally different draft, and the bulk of our complaints were addressed in one way or another. We were struggling to regroup on our positions. We knew we had to keep restating our complaints, but at that moment we weren’t sure what they were anymore…

      1. Not at all. I was not talking about you particularly, nor was I including you in that group. I was talking about the Portuguese people. I have read your comments in your blog and I am very much in line with what you’ve been saying and doing.

        The big frustration is that no matter how much effort you put into explaining the issue to people, the more negative (misleading) views are what gets propagated. There is the notion in most people’s minds that something not-so-bad coming out of the EC is not as believable as something terrible. And so people spread the misinformation. Including journalists, by the way.

        If people can’t regroup I’m afraid they won’t be as effective in lobbying between now and implementation as they were so far.

  4. There seem to be sufficient exclusions for `niche’ seed producers to be excluded from major part of the rules:
    “… in order to introduce flexibility for future technical and scientific developments, heterogeneous material, which does not fulfil the definition of a variety, could be exempted under certain conditions from the requirement that that material belongs to a registered variety. Furthermore, a specific derogation for niche market plant re productive material is laid down. ”
    As to non-profits – I’ve listened to deliberate confusion between patented varieties, varieties covered by UPOV Plant Varietal Rights, and `Green Revolution’ varieties on one hand and the rules about seed certification and marketing certified seed on the other hand. If NGOs get caught out at this game, they have only themselves to blame if nobody then takes any notice.

  5. If you all are confused as to what the bills mean, then it’s written to be purposefully confusing. If you are all confused, and not in agreement, then chances are – you don’t know what it means. I am an American and here in the midwest where our corn is grown, I have had friends, neighbors and family be bullied and CRIMINALIZED to grow Monsanto corn rather than any other supplying seed company. This shouldn’t happen. There’s nothing wrong with growing whatever you want. You few Europeans that squabble saying, “I don’t think it means this… it means THIS instead”, are in denial as to who your EC is working for and to exactly what end.

  6. Also, WHY would you NEED regulation for seeds? The only regulation you need is this: “No company, individual or corporation should be the sole supplier of any agricultural product; and no company or individual can force anyone else to grow, hold or sell any product or seed of any kind.” There, done. World fixed.

  7. You’re completely right Holly. I suspect not many people here think we NEED any sort of marketing regulation for seeds. The only purpose for such a regulation is to give an advantage to the larger seed companies.

    Many places in the world don’t have such a regulation, and do just fine without it. The US of course is a different story…

    It’s very obvious the confusion is intentionally being caused, and if you look at the sources of the confusion, it’s kind of interesting where it’s coming from.

  8. ” I suspect not many people here think we NEED any sort of marketing regulation for seeds” I disagree with Patrick’s point. Seed regulations are to protect consumers, not to profit multinationals (they get their rewards through intellectual property protection of various kinds). I want to know that what I buy is the variety it claims it is, is not contaminated by off-types and weeds, will germinate, and does not carry diseases.
    The problem started around 35 years ago with `seed activism’ – a North American product quickly exported to Europe. This could have restricted itself to a reasonable attack on monopolies and patents but expanded to seed production, the evils of the Green Revolution and the benefits (often illusory) of farm-saved seed, local adaptation (often spurious) and the value of diversity and indigenous varieties.
    As to Holly point: “There’s nothing wrong with growing whatever you want.” I agree – but tell that to the people who are blocking Mexican farmers growing GM maize. The activist-imposed `regulation’ tries to stop farmers in ill-defined Centres of Crop Origins growing GM crops (brinjal in India, maize in Mexico).

  9. In Europe there is different legislation covering GMOs and IPR. These are not very actively being discussed with the current legislations.

    There is certainly an issue of consumer protection and fraud, but these too are dealt with to some degree in other legislation. Mostly consumers themselves have to take the responsibility for ensuring they purchase something suited for purpose.

    Everything else can more effectively be dealt with through the free market. If farm-saved seed, local adaptation and the value of diversity don’t translate into farm profits and productivity, then they will cease to exist. If people want to buy DUS and VCU, and these are more productive, so be it. If one seed company produces seeds deamed in some way to be better than their competitors, then farmers can choose those seeds.

    There is hardly any other economic sector that has pre-marketing conditions on things like uniformity and appearence. Imagine if we bought houses or cars that way?

    The purpose of seed marketing regulation is soley to create advantages for the larger agricultural companies, and then to export these advantages through international trade agreements.

  10. Pingback: Featured: Seed Law
  11. Patrick – I disagree more strongly with some of what you say. Cars have model numbers and specifications. If I bought that model car with that specification I’d be very annoyed indeed if it did not meet that specification and it would be returned. You cannot tell seed specifications by looking at a sample – that is done in a seed testing lab and by field inspection. Seed potato inspection here in Scotland (a major business) also has seed production fields virus checked. You cannot know the all the qualities you expect until seed is grown out – and then it is too late. This is one area where traditional farmers score: they can look over the fence at a neighbour’s crop, see its value, and beg, borrow, of buy seed for themselves (as probably most farmers do). We save horticultural seed – in particular seed potatoes of heritage varieties. There is also a sale of ware potatoes in Britain that bypass restrictions on the marketing of seed potatoes – this is `caveat emptor’ sale, as the type/quality/virus free etc. is not guaranteed (and possibly the use as seed is illegal) and do not starve if the lot goes down with late blight. But if I buy a named variety I and the Government want to ensure I get what I pay for: hence seed legislation. My neighbour, a cereal farmer, went down to England, bought a ton of barley grain (not sold as seed) and filled his fields with Bromus sterilis – a weed almost impossible to get rid of. That is the free market in action – next time he will buy certified seed.
    Your last paragraph is wrong as to `purpose’ and `solely’. Rather: present seed regulation favours larger seed companies etc… But I thinks your point is more true for intellectual property protection and patents, where the cost of implementation can exclude small businesses. But IPP expires.
    There is another problem with recommended varieties (or lists): they may not be the best varieties available and farmers may know this. In India there a fairly tight division into state varieties and associated seed production. Farmers get no open choice. But a farmer may get on a bus in Andhra Pradesh state and buy state-certified seed of, say, groundnut, in Tamil Nadu, take a sackful home, and become a local seed producer for his neighbours. I have seen such a farm. This ability of farmers to get what they want was the driving force behind the spread of Bt cotton in India – a market-driven system behind the backs of the authorities.

    1. Cars may have models and specifications, but there’s no law that says these have to be uniform or correct. Regardless of the reason, returning a car might be more difficult than returning seeds.

      Of course you don’t know the quality of seeds by looking at them, but you do know where you buy them from. The story of your neighbor just proves that point. If my field is already full of Bromus sterilis, why should it be illegal to purchase cheaper and possibly contaminated barley grain to use as seed? Bromus sterilis is a native plant of the UK, and a wise farming strategy might include some natural controls if they exist, rather than expecting to always be able to purchase uncontaminated seeds. It seems like a weed you’ll probably get no matter what.

      The same is true with potatoes. If I want disease free potatoes of guaranteed quality, I can buy them from a source that tests them or like you suggest from a known good field. If I want to take a chance, I can buy them some place else cheaper. Maybe my field is already full of viruses and blight, and I don’t care if what I buy is also diseased. Why should one be legal, and not the other? It all depends on the business model of the farmer.

      The expression ‘pig in a poke’ seems to have originated from just this sort of discussion:

      http://en.wikipedia.org/wiki/Pig_in_a_poke

      “The advice being given is ‘don’t buy a pig until you have seen it’. This is enshrined in British commercial law as ‘caveat emptor’ – Latin for ‘let the buyer beware’. This remains the guiding principle of commerce in many countries and, in essence, supports the view that if you buy something you take responsibility to make sure it is what you intended to buy.”

      I don’t know a lot about India, but what I’ve heard about Bt cotton was alternative varieties suddenly became unavailable. Since you mentioned specifications, my understanding was the promotional material also promised far higher than realistic yields for Bt cotton, one of the factors behind the high levels of bankruptcy and suicide at the time. This was in part because farmers took out loans based on these promises in order to pay for the more expensive seeds. If farmers were seeking out the Bt seeds, it was probably because of misleading promotion, not true value of the seeds.

      For everything we talk about here there are alternatives by way of voluntary laboratory inspection regimes, purchasing from a trusted source, visual inspection, insurance, certification schemes and so on. As a buyer you simply have to take primary responsibility for what you buy. There’s nothing about the upcoming seed law that offers unique protection that cannot be obtained another way. In fact, less seed regulation could offer more choices, and more competition, and in the end more protection for farmers rather than simply depending on a few very large seed companies that may themselves have underlying quality problems.

      I used to be somewhat neutral on the latest seed law draft, but the more I understand it the more I realize there’s almost nothing good in it. I really think we would all be better off without any marketing regulation.

      Other than the spelling error, I don’t see the problem with `purpose’ and `solely’.

  12. Patrick: I can’t spell either.
    You say “As a buyer you simply have to take primary responsibility for what you buy.” No. This then becomes the land on snake oil salesmen. Where there is a fair chance of cheating the consumer the government steps in – registered medicines, seed certification, food standards, professional registration bodies for lawyers, nurses, and most professionals selling services the public do no know enough about the easily judge. Your system of value judgements for seed works with traditional farming communities and reciprocal trust (and such farmers usually adopt varieties after their own trials and then do their own seed production)s. It does not work for vegetable seed produced in East Africa, shipped to the Netherlands for cleaning and packing, exported back to East Africa and divided into small lots for sale in rural markets. This is what branding is all about – buying something you trust – and thias is needed for many vegetables because of the problems of own-seed production. When I worked in Yemen a popular soft drink was Vimto. There was one (apparent) genuine brand and a dozen look alike cans, same typography, same colours, same impact and no regulations to stop this. You will get this with seeds with no regulation.
    Bt cotton in India was bootleg – you don’t get promotional material with illegal liquor: you taste it and swallow or spit it out. Farmers saw Bt cotton and wanted it. The true value of the seed was that it worked: yields up and national cotton production up dramatically.
    You call it marketing regulation (bad): I call it consumer protection (good).
    The point about acceptance of weeds and plant disease in seed is that shoddy farming impacts neighbours. They suffer from your lack of standards (or desire to buy cheap seed). To match your `pig in a poke’ there is a farm saying for crop weeds like Bromus sterilis:`Seeding one year means weeding seven years’ – the result of junk seed contaminated with weed seed.

    1. Dave, I’m not at all saying there shouldn’t be quality control or certification of seeds, but this should be driven by the farmers buying the seeds, and not what’s happening now, the larger seed companies imposing their own rules that don’t make sense.

      I am completely certain that seeding a crop weed like Bromus sterilis can be an absolute disaster for many farmers. I’m not trying to deny the importance of this. But there are different ways of looking at the problem. The way you present it is very much a larger farmer imposing their will on a smaller one.

      I don’t know a lot about B. sterilis, so consider blight instead. Here in NL, we have a law that says if you have plants that are more than about 13% (I’ve forgotten the exact number) infected in the foliage, you must remove or destroy the infection. If you don’t, the government can step in and do it at your expense, possibly with chemicals. This applies to home gardeners, small and big farmers, organic and conventional.

      I agree, infected plants should be dealt with, no question. This law however is flawed in a number of ways, and intended to protect large scale farmers who are growing susceptible varieties on a large scale and controlling the blight with fungicide. It’s starting with the premise that blight is caused by spores, spores are killed by chemicals, and using enough chemicals in the right places can eradicate blight. It’s a bit like saying overuse of antibiotics is going to make us all healthier, because if we use enough all disease will be destroyed everywhere.

      Blight in NL is not going to go away. Trying to quickly destroy small infections is not going to make a huge difference. Organic potato farmers in NL mostly use mechanical methods to remove the foliage of infected potatoes, and having an unrealistically low threshold of 13% puts them under time pressure that conventional farmers who destroy the foliage with chemicals don’t have. I agree that home gardeners should remove their infected plants, but 5m2 in a home garden that’s 100% infected is a lot less infection than a commercial farmer with 5ha that’s 5% infected. This law basically creates a crisis for everyone except the large scale monoculture farmer, and a different way of thinking is really needed.

      It has to be the same with B. sterilis. For example, if potatoes in a well planned rotation scheme compete well with the B. sterilis, and a smaller farmer is not worried about the B. sterilis because this is what he’s growing, a larger farmer who grows mono-cultures in limited rotation might have to accept some of these ‘shoddy farming’ impacts.

      If farmers want to use seed from east Africa, they just need to arrange for their own inspection and certification schemes, or demand the selling party do this for them. Maybe this will make locally produced seed from traditional farming communities cheaper! Wouldn’t that be nice?

      In any case, I don’t think this new seed legislation is really going to satisfy you. One aspect of it is the ‘outsourcing’ of the inspections to operators (seed vendors), who will do this themselves. The main issue is who sets the standards, a marketing regulation or commercial forces? The former is fundamentally larger farmers and seed companies imposing their will on smaller farmers.

  13. Hello @All
    There’s an online petition from Openpetition.de with just over 74000 signings to stop this law.
    The petition needs 100000 signings to be acknowledged be Brussels. But we only have 2-3 days left zu get the remaining 26000 signings.
    PLEASE HELP!
    Sign this petition and spread the word.

    1. I’ve edited your comment; people will be able to find the petition if they want to. What surprises me is that, having read the post, you think we’d rather maintain the status quo. Or maybe you didn’t actually read the post …

  14. Hello, thanks for the opportunity to comment. You asked in your Twitter feed if I/we are right to be concerned about this law. Naturally, I think we are!

    The main problems we have are that this law is not just about seed, but about all Plant Reproductive Material. The EC has made clear to me in person that they intend this to mean all plant material up to the point at which it is planted in the soil. This goes far beyond anything we have seen previously and brings regulation to areas of horticulture that have not previously been regulated.

    With regard to ornamentals (my field), there is a considerable increase in the scope of regulation regarding varieties. Whilst some of the media coverage has referred to “registration” (and which journalist ever let the facts get in the way of a good story?), the onerous requirement for an “officially recognised description” falls only slightly short of registration. Furthermore, here in the UK, DEFRA have suggested they simply don’t have the resources to implement this aspect of the regulation and would like to see it removed. With between 50,000 and 150,000 varieties requiring ORD, the administrative and financial burden on the industry is disproportionate. Furthermore, it doesn’t solve any problem that is not already covered by Trade Descriptions legislation – consumer protection is no reason for duplication.

    We also don’t believe the current niche market exemptions are workable. They are based on geographic area, whereas, particularly in the case of ornamentals, niche markets can be widely distributed across the Union.

    So, we have lots of concerns. On the whole, we think that there is a good piece of regulation hidden in there, it’s “simply” a case of helping our friends in Brussels to get it refined to a point that is workable. And that is the approach of the stakeholder group that has been working on it with DEFRA behind the scenes in the UK.

    Finally, please note that there is a considerable disparity between the EC’s impact assessment, their press releases and their introduction to the Regulation and the actual content of the Regulation text. If people only read the IA, PR or recitals, they will not get a true picture of the regulation’s scope or implications.

    My full article is here, for those that don’t follow your tweets: http://www.plantsforeurope.com/2013/11/new-european-commission-regulation-on-plant-reproductive-material/

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