Deconstructing European seed legislation

André Heitz takes on Robert. At length.

Robert has raised a series of questions on the “A different view of European seed regulations” post.

1. Why does the EU system not allow non-certified seed to co-exist with certified seed?

One would have to check the legislative history. Basically, the national systems all derive from a desire to increase agricultural productivity and food security. They have been consolidated into a Community system on the basis of an upward harmonisation.

From the recitals of Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed:

Whereas satisfactory results in cereal cultivation depend to a large extent on the use of appropriate seed ; whereas to this end certain Member States have for some time restricted the marketing of cereal seed to high-quality seed ; whereas they have been able to take advantage of the systematic plant selection work carried out over several decades which has resulted in the development of sufficiently stable and uniform cereal varieties which, by reason of their characters, promise to be of great value for the purposes in view;

Whereas greater productivity will be obtained in Community cereal cultivation if for the choice of the varieties permitted to be marketed the Member States apply uniform rules which are as strict as possible;

Note that the Directive is a bit tongue-in-cheek, when you consider that farm-saved wheat seed represents some 50 per cent of the total volume of seed:

Whereas cereal seed which is not placed on the market should not, in view of its minor economic importance, be subject to Community rules; whereas Member States must retain the right to make such seed subject to special provisions;

2. Is there is a real and significant risk that allowing non-certified seed exchange would undermine the certification system?

What matters in the first place is not the integrity of the certification system, but the security of agricultural production.

Any risk assessment of a “liberalisation” of seed production and trade can only be speculative. The past experience in other countries suggests, however, that the seed production and trade network and the vitality of the breeding industry might suffer considerably. Particular examples are Argentina and the United States of America. In the first, farmers would come with their grain to the elevator and go back with cleaned “seed” in white bags (“bolsas blancas”), without any real guarantee as to genetic identity and physiological and phytosanitary condition. In the United States, the 1970 version of the Plant Variety Protection Act allowed farmers to produce seed, sold in “brown bags”, provided their primary occupation remained the growing of a crop for consumption. The famous Winterboer vs. Asgrow case, which led to a Supreme Court decision in 1995, was about one farmer planting and harvesting 265 acres of land with two Asgrow soybean varieties and selling enough to plant 10,000 acres to other farmers. This deficiency has been considered as an important limiting factor for plant breeding in self-pollinating agricultural crops.

3. Could this imperil agricultural production (and hence our society)?

In Europe, a region which generally boasts comfortable surpluses, one cannot paint such a big and ugly devil on the wall.

But crop failures from spurious seeds can have nasty consequences for individual farmers, for processors, for the environment (for instance if fertilisation is well above the crop’s uptake), and for entire populations in many countries and regions afflicted by scarcity.

The fragmentation of the variety assortment is creating new risks. It appears for instance that there is a particular problem in India where conventional cotton seed is sold by unscrupulous individuals as bollworm-resistant GMO.

4. Is there a risk grave enough to infringe on the free exchange of seeds (an overlooked, but fundamental, (post-Neolithic) human right)?

First of all, is the possibility of saving and using, and exchanging or selling one’s own seed a right? And, moreover, a (fundamental) human right? I will leave this for another occasion, but must mention, first, that the “right” is qualified by “subject to national law and as appropriate” in Article 9 of the ITPGRFA and, second, that in our modern world, the “right” is unfortunately an obligation when the option of drawing upon high-quality seed through other channels is not available.

The overarching right is definitely to food and a decent living.

The policy decision — to the extent that there is elbowroom — should thus relate to the latter. The Common Agricultural Policy which was born in times of fairly important shortages (something many people fail to recognise today, starting with all those politicians and opinion leaders who consider that the Common Agricultural Policy is too expensive) chose to secure agricultural production.

5. What is the origin of the risk?

Agreed, the grass root farmer selling part of his crop as seed to his neighbour is the lesser risk; one may indeed assume that the neighbour knows what he is buying. This also applies to established companies which are firmly rooted in the agricultural world. But, from there on, one can imagine all sorts of scenarios, some supported by anecdotal evidence.

It is estimated that some 5 to 7 percent of global trade is in counterfeit and pirated goods. All categories of goods are affected, sometimes with devastating consequences. The trade in seeds under the auspices of the OECD system is fairly safe, and this is primarily due to the control system in place.

Nowadays, the control system is a cornerstone of traceability. I doubt that it will be relaxed as regards principles (as regards the practical operations, official operations may be replaced by privately conducted ones in some cases, including by self-certification).

One may lament the fact that the control system is not friendly enough to heirloom agro-biodiversity. For my part, I can readily imagine the disaster if, through a relaxation of the control effort, organised crime were offered a better opportunity to operate; selling ordinary tomato seed as F1 hybrid is no doubt more lucrative than selling fake medicines.

6. How do genebanks and (academic) researchers operate in this legal environment? Can they legally distribute seeds that are not listed? And what about old/new/private/public breeding lines? Is there a ‘research’ exception?

The control system applies to commercial seed. Genebanks, researchers and breeders are thus not concerned.

Quite stunningly, Council Directive 98/95/EC of 14 December 1998 provides that “Member States may authorise producers in their own territory to place on the market: (a) small quantities of seed for scientific purposes or selection work; (b) appropriate quantities of seed for other test or trial purposes” (the latter with some limitations). What is puzzling here is the reference to ‘producers ‘ and to ‘placing on the market’.

Seed distribution is a more delicate question. If it is large scale (more than anecdotal) and commercial, it would presumably fall under the – take your breath – Commission Directive 2008/62/EC of 20 June 2008 providing for certain derogations for acceptance of agricultural landraces and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion and for marketing of seed and seed potatoes of those landraces and varieties. If it is de minimis and outside the scope of the various Directive provisions, it would certainly fall under the tolerance that usually presides over an intelligent implementation of legal provisions.

For sleepless nights.