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EU Seed Law Discussion October 2021

The EU seed industry has just published a new issue of it’s trade magazine, including the main arguments under discussion for an update of the EU seed law. Ostensibly there are two sides to the discussion, one for updating the EU seed law, and the other against.

The against side is presented by a representative of the EU seed industry.

The for side is presented by Austrian seed saving organization Arche Noah. In fact Arche Noah has suffered a similar fate as sister organization Seed Savers Exchange of the US. They accepted money from the wrong people, which resulted in the management being largely expelled. They exist now in name only, as a brand, and are completely unresponsive to their membership. They claim to represent seed savers, farmers and so on, but I am unable to see any evidence of this. The reality is they now represent the people who have taken over the organization, which ultimately comes down to the wealthy families who control the international Convention on Biological Diversity (CBD).

The EU seed industry says the seed laws have served them well for decades now. They say a number of things have changed recently, climate change, biodiversity strategy, EU Green Deal, and so on. In addition there are new technologies and ways of testing seeds. All of these could justify minor adjustments to the EU seed laws, but not opening the whole can of worms of legislation.

Arche Noah pretty much only says they want to bring EU laws in line with the CBD. The CBD is actually a very large legal instrument now, and what Arche Noah means specifically is the ABS (Access and Benefit Sharing) provisions of the CBD. There are actually a number of parts of the CBD that deal with farmers and seed savers rights, but these are less interesting to them. They are also only pursuing a small relaxation of the EU seed laws, for the purpose of aggressively marketing and monetizing a few specialized crops, probably by way of organic certification, something not very useful to true seed savers and farmers. For seed savers the consequence of these changes would probably be significantly more administrative burden and violation of privacy, by way of registration requirements and plant health red tape.

I say there are two sides to this discussion, but in fact, the wealthy families who now control Arche Noah are also the ones who own and control the seed industry. It’s a bit like the left hand arguing with the right, and it seems almost certain the seed law will change for the worse. There’s a reason both sides of the argument appear in a seed industry trade magazine.

The Reality for Seed Savers

The EU seed laws are a major problem for seed savers, and have been for decades now. At the same time, seed savers have found their way around some of the barriers, and negotiations have taken place with the seed industry. For a long time genetic resources were considered to be in the public domain, and in most places there were full breeders’ rights. This meant industry plant breeders could frequently trade materials with independent plant breeders and seed savers, and these trades often took place.

On the other hand, completely the opposite is true with the CBD. Representatives of the CBD have taken over and gutted organizations that once represented seed savers, stole their seeds and treated them like brand names that they could use to represent their members. The CBD has been promising for decades to support the worlds biodiversity, but every year they fail to reach their own targets. There is virtually no chance of success here.

Seed savers cannot accept anything but very minor administrative burden for what they do. They also cannot accept registration requirements that require them to state in detail the varieties they work with, or to submit to DNA testing of their plant materials, because this is a serious violation of their privacy. Of course almost all seed savers would like to cooperate with controlling plant diseases and pests, but this has to be based on risk, and can’t have an unreasonable or intrusive administrative burden or DNA testing. They cannot accept any registration fees. Seed savers cannot accept patents on life.

Much has been said about the difference between commercial and non-commercial food and seed production. Most seed savers, independent plant breeders and small farmers don’t have the expectation of making large amounts of money from what they do, but at the same time need to cover their expenses and survive financially. Of course everyone needs to have a light at the end of the tunnel, and sometimes these people hope for a time they can make real profits with what they do. It’s not always possible to accept a partner in this kind of activity, and so there needs to be a reasonable possibility to grow independently. This whole financial picture needs to be renegotiated from time to time. With climate change and and the collapsing of biodiversity worldwide, there should be good financial potential for seed savers, and they should be free to pursue this legally and independently.

Realistically, seed savers cannot cope with these revisions of EU seed law. If we try to organize efforts to lobby for a good outcome, this will be undermined and taken over by the same people who have taken over seed saving organizations. We don’t have the money. Too many points of view make coming to a common statement too difficult.

Proposal for EU Seed Law Change

The best seed law outcome for seed savers would be a withdrawal of the EU seed law directives.

The seed industry should be happy with this. The seed laws could be replaced with industry certification. Industry could set their own rules and procedures. What is now done by civil servants could be done in-house by the seed companies, who could manage the costs themselves. Marketing could be managed with relationships with supplies. Best of all there would be no more of these legislative revisions of the EU seed law.

Arche Noah won’t be happy with this, but if what they say about implementing the CBD and supporting the rights of seed savers is true, they will support the idea.

Implicit in this would have to be no patents on life, and full breeders’ rights. Full breeders’ rights is the idea that plant varieties can be protected, but the genes within the varieties cannot. This means if a plant breeder crosses a protected variety with a different but related plant, the cross and resulting generations are unprotected until a new stable variety is created and protected.

Also implied in this is biodiversity exists in the commons. Industry uses and profits from biodiversity, and must pay for it’s maintenance, but also has a responsibility to share it. If a public domain variety is genetically engineered, the result is a public domain variety. If a protected variety is genetically engineered, as long as the variety is protected so is the genetic engineering.

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Why Our View and Approach Towards Invasive Species is Wrong

Every gardener is annoyed by weeds in their garden, and different gardeners often have very different approaches for controlling them. It’s not unusual for gardeners to have strong disagreements over weeds.

The Reasons for Having Weeds

Weeds are actually an important part of your garden’s ecosystem, and it’s impossible to get rid of them completely without damaging your garden. Many people mistakenly look at weeds in their neighbors garden, and think if their neighbor would just take care of them their own weed problem would go away.

The truth is most weeds come from seeds that are already in the ground, and have been there a very long time. Studies have shown weed seeds can survive in the ground hundreds of years or longer. As gardeners disturb the ground in their garden, they bring seeds up to the surface, which in turn grow.

All gardeners know that weeds don’t grow randomly, and it’s generally possible to identify 4-5 different weeds that account for the majority in their garden, and also that weeds favor different areas of the garden. There’s a very important reason for this. Weeds actually repair your garden.

For example, if you have too much nitrogen or potassium in your garden, stinging nettles may grow. As they grow, they will consume the nitrogen and potassium, and try to bring your garden into a healthier balance. You will get particular weeds if your soil is compacted, too wet, lacking nutrients, and so on. In each case the weeds will work to correct the imbalance or problems. Gardeners who use weed killer like Round Up in their gardens will notice they get Mare’s Tail, and this is for the same reason, to repair the damage caused by the chemical.

Repairing your garden with weeds alone is usually impractically slow. They are however very good as indicators. Letting some weeds grow, together with other organic methods, can be a very effective way of keeping your garden in balance, and over time weed problems tend to go away on their own.

On the other hand, if you keep fighting the weeds, you end up damaging your garden and you end up being unaware of fundamental problems that could possibly be easily corrected.

The View With Chemicals

People who use chemicals to control weeds in their garden sometimes have a completely distorted view of the world. The often blame the seeds blowing into their garden from nearby weeds as the source of their problem. They believe the best state of affairs is for all weeds to be destroyed, and only their desired plants to be growing. They often look further and further away from their garden.

Some gardeners even think some weeds are worse than others. For example nettles because they sting, or thistles because they prick you. I even knew a gardener that thought all yellow flowered weeds were bad. I guess because there was Round Up ready rape(canola) growing wild, and he had to pull this out by hand.

Some farmers have a similar view. For example, on one hand using chemicals to destroy a disease on their own crop, then looking for the same disease on neighboring (organic) crops and blaming those gardeners or farmers for causing the problem.

Invasive Species

The arguments are often mixed with racism. In fact the Dutch language has a term ‘alloctone’, that can refer to either an invasive species or a person of foreign origin. Some people even think it’s possible or desirable to completely eliminate invasive species, maybe with gene drives.

Of course reasonable steps should be taken to prevent invasive species from spreading.

The reality is invasive species are an indicator of very serious environmental problems that need to be addressed. There are natural methods for control, like introducing natural predators or commercial harvesting. Attempting to remove them completely in an unnatural way can’t be done without further damage to the ecosystem, and shouldn’t be attempted.

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Why Access and Benefits Sharing is Neither

Access and Benefits Sharing

This is currently at the heart of The Convention on Biological Diversity (CBD). In principle, what it means is that the world’s genetic resources are available for everyone to use, and everyone is guaranteed access. In addition, there is a predefined mechanism that ensures people who work with biodiversity are paid fairly for what they do. While this sounds very laudable, it couldn’t be any further from reality.

The Collection

The first step was defining what exactly were the world’s genetic resources, and putting them in a central place. The place was the global seed vault in Svalbard, Norway. The plant materials were supposed to be donated by their owners, but this too was far from reality. Most countries just declared their genetic resources as owned by the treaty, so all that had to be done was find and seize them.

In other cases the person in possession was deemed the ‘owner’, and consent was all that was necessary was to obtain a sample. In almost all cases there insufficient information for informed consent. It was simply common practice to share samples of seeds with others. In addition, these often involved seeds bred hundreds of years before, and it was impossible to get the consent from the original owner(s).

In the US the head of the largest Seed Saving organization the Seed Savers Exchange refused to give his consent, so he was thrown out of the organization. In an equally unfriendly way, the largest European organization Arche Noah lost their collection. Organizations were infiltrated, seeds were seized or samples of everything obtained. Public and private seed collections were absorbed, and often every effort made to ensure unofficial seeds were put beyond use. In the first Golf war, Iraq’s seed collection was bombed, to put it out of use. It was really impossible for anyone to say no to having their seeds seized, and original contributors of seed samples to collections were not consulted.

Access

In principle, anyone who wishes to work with biodiversity can request a seed sample from a local genebank. It’s the assumption that the use of seeds will be monetized, so for example people suspected of just being simple gardeners may not have access. It is however a very firm principle that the seeds belong to the CBD, and those requesting a seed sample are only borrowing the genes inside the seeds. This is often established on the national level by treaty, and sometimes it’s necessary to also sign a written agreement so complicated that many lawyers could not say what the consequences of it might be. The use of the seeds come with administrative requirements beyond the ability of most seed savers, independent plant breeders or small businesses.

Many seeds currently in genebanks are degrading. All seeds need to be regenerated periodically, or they will die. In addition the methods used are the most cost effective and sometimes flawed, resulting in the loss of genetic information. In order to truly preserve seeds, regeneration needs to be done ‘in-situ’, that is on real farms or gardens. Seeds regenerated in geenbanks do not adapt to changes in climate or the emergence of new pests and diseases.

The principle behind obtaining seed samples from a genebank is that the genes inside the seeds will eventually be used commercially, and royalties will need to be paid for this. If the genetic material is eventually sold, for example to a home gardener, this person will only have a legal right to plant the seeds and use the products of this. The end user does not have the right to save seeds, replant them, share with others or otherwise use the biodiversity.

The proper use of biodiversity is enforced with DNA tests. Just like it’s possible to determine who your ancestors were with a DNA test, in the same way it’s possible to determine where your seeds came from. Since people plant seeds and use biodiversity, there are major privacy implications with these DNA tests.

In principle, ordinary seed savers and individuals do not have to follow these rules, but again the reality is something very different. Exactly who is a simple seed saver and who is an entrepreneur, or an actor, or a user of biodiversity is under intense discussion at the moment. It’s not clear who has to follow what rules. In addition, everyone is bound by the legality of obtaining seed samples from a genebank, and everyone is subject to a lawsuit or criminal prosecution.

In addition, since Access and Benefit Sharing amounts to privatization, someone owns the genes in the seeds you are using. That means, even if you are a seed saver or individual and not subject to the rules and administration of using those seeds, you still need to think about who is ultimately going to get the royalties, what conditions are going to be imposed on the end user, what the royalties are going to cost and so on. Plant breeding is difficult enough, and plant breeders often struggle to find the single gene they need for a particular trait. Combining all of these aspects makes things almost impossible.

There is the argument that yes, plant breeding and seed saving will become too complicated for an individual to manage, so what’s necessary is to joining an association or organization. The reality is everyone working with seeds needs to involve themselves with hard core capitalism.

Benefit Sharing

The benefit sharing part are the royalties someone pays. In theory you, or the organization you belong to, can negotiate a cut of the profits. This is assuming you produce a commercially product. Since the seeds are ultimately owned by the worlds wealthiest families and individuals, they will certainly benefit the most.

In theory, all the world’s biodiversity has been collected and cataloged as part of the CBD. The reality is the US is not a formal part of this treaty, but in fact offers a great deal of cooperation. This means under some circumstances, some biodiversity in the US is still ‘free’. This offers some possibilities to work around the CBD, but as a result countries all over the world cracking down on importing ‘illegal’ seeds, creating a cat and mouse game that’s adding another layer of complexity on everything else.

Unworkable

This entire approach is unworkable. The world has changed since the idea of Access and Benefit Sharing first came about, and it’s not necessary to fund biodiversity in this way anymore. There is a huge amount of damage caused by the collection of biodiversity and storing in genebanks. There are many flawed assumptions about the level of cooperation people will offer, and what technology is capable of achieving.

Our house is on fire, and it’s time to move on from all of this.

Simply maintaining all seeds as public domain was a viable solution for hundreds of years, and people are able to find their own motivation for working with biodiversity on these terms.