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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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Kunming CBD Wish List

In October Convention of Biological Diversity delegates will travel to Kunming for the delayed Conference of the Parties. In the hope my opinion matters, here’s a wish list of what I think needs to be accomplished in order to stimulate biodiversity.

End Nagoya Protocol: This is so complex and theoretical that no one understands what it means. This has effectively stopped the legal transfer of genetic material between people, across many scientific disciplines, and has brought the work of many people to a complete standstill. Not only should this be ended, but there should be no replacement protocol considered.

End or Adjust Worldwide Plant Health Restrictions: I have not been able to identify any working document justifying these restrictions. There doesn’t seem to be any peer-reviewed research suggesting such overly broad restrictions will have an impact on plant health, nor do there seem to be any strategy documents detailing what is attempting to be accomplished. If there are true plant health risks, and some measured restrictions might be of help mitigating these risks, then restrictions might be justified. Where there are no risks, there should be no restrictions. Where there are risks, these should be clearly explained and restrictions justified. Above all else, these restrictions should be open for democratic discussion and debate.

DNA testing and seed sample collection cannot be justified for reasons of plant health, and these should be stopped. Above all else, stop lying. If it’s not for reasons of plant health, be honest about what it’s for.

Stop DNA testing of seeds without permission of grower: DNA testing of seeds has enormous privacy implications for people using those seeds, just like DNA testing of people does. There should be no databases or analysis of those seeds unless requested by the user.

Stop the Open Source Seed Initiative: Seeds and documentation have been collected for this under misleading circumstances, and the people providing this are not aware of the true consequences of their participation. Return these seeds to the public domain.

Return all genetic materials to the public domain: Genetic materials that have been collected under the auspices of the CBD have been done so under misleading circumstances. It’s unlikely very many people have given their materials up with fully informed consent. These materials have always existed in the public domain, and the CBD has no right to them. The rules the CBD have placed on these materials makes them unusable for a great many people who could otherwise be working seriously on the greatest existential crisis the world has ever faced, global warming and biodiversity loss. The CBD should either be helping people with their work, or get out of the way. In the current direction, the CBD is a substantial hindrance.

Before the CBD these materials were always considered in the public domain. Collections were maintained and paid for by the companies making profits from their exploitation, and everyone had the right to receive free samples. We need to return to a similar situation, combined with collections funded with taxes imposed on the wealthy.

Stop all administrative burden: There should be no administrative burden for using biodiversity. No sMTA’s, no registrations or declarations. Biodiversity belongs to everyone, and no one has the right to demand paperwork just in order to use it.

Stop all patents on life: Genes exist in nature. Collecting and editing these genes do not constitute invention or innovation. Genes are naturally occurring and should not be subject to patents. Patents give too much power to the patent holders. It’s a ridiculous situation that governments must fund the research leading to COVID vaccinations, then companies are allowed to patent them and restrict their manufacture and use. It gives too much power to pharmaceutical companies to overcharge patients and ignore unprofitable treatments, especially in places without universal health care. It’s unreasonable to expect people who work to promote biodiversity to contend with patent restrictions. We need to pay for this sort of R&D with taxes on the world’s wealthy, or simply find another way.

It’s very possible millions of people in the world may die because patents on COVID vaccinations might prevent their efficient manufacture and distribution in poor countries. This must not be allowed to happen, and in any case must never happen again.

No payments for biodiversity services: The expectation of such payments was probably a factor in Bolsonaro’s encouraging the destruction of the Amazon, and there should be no payments to him for stopping what he’s doing or reversing the damage. Such payments should be discussed and debated in a democratic way, and paid for from taxes on the wealthy. There should be no automatic mechanisms that might stimulate biodiversity loss.

Existential crisis: Above all else remember the world and it’s biodiversity are in a real crisis. We all know we need to do a lot more than just stopping the release of greenhouse gases, we need to start removing CO2 from the atmosphere. If we aren’t going to wait for Elon Musk to develop the technology to suck all the CO2 out of the atmosphere, our only choice is to develop biodiversity in such a way that CO2 is sequestered in healthy farming soils, old growth forests and other living areas of biodiversity. Please get serious and act now.

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EU Plant Health Reg. 2016/2031

This new regulation came into force 14 December 2019. As of this date all plant reproductive materials that aren’t accompanied by a phytosanitary certificate will not be allowed into any EU country. The major exception to this is, maybe, in some countries, it will be allowed in passenger hand baggage, in ‘small quantities’.

This is a major problem for biodiversity conservation efforts in the EU. Since mostly it’s illegal to sell biodiversity related materials within the EU, importing it is one of the only options. Even if someone were to make the argument that plant materials are available in the EU, it’s often the case that specialist materials must be sourced abroad.

Understanding Science

Like with any measure along these lines, there’s lots of talk about science. As is also often the case, there’s precious little that is clear about what the underlying science really is. This video is a good example of what I found. Basically, plant diseases are bad, and trust me I’m a scientist. I’m not able to find any rigorous or clearly understandable arguments on why this regulation is necessary or what it hopes to achieve.

The targeted plant diseases seem to mostly already be established in Europe, and so would also spread from seeds distributed within Europe. I haven’t seen any clear or credible explanation as to why blocking foreign sources of these diseases would help tackle the problem. While still doubtful, a total quarantine might be a credible solution in some cases, but we live in a democracy and don’t have measures draconian enough at our borders. The EU also prides itself on it’s open internal borders. Besides, if you’re letting travelers carry plant materials in their luggage, how can you argue that keeping out plant reproductive samples sent by post could be effective?

The traditions of carrying plant materials when you travel, or farmers and plant breeders trading with others in different countries, has been around almost as long as civilization itself. How can you argue that now it’s suddenly a special problem?

My Own Experiences

I’ve certainly seen some signs of imported plant diseases in my garden. For example, I used to grow a lot of garlic, and like other plants that are cloned rather than propagated by seeds, viruses are common.

I used to grow rye grass, and had some ergot fungus that was probably introduced by the seeds. This is not so much a problem for the plants, but is poisonous for people who eat the grain. It’s easy to identify and remove by hand. Other than this, I’m not aware of any seed borne pathogens introduced into my garden.

All of these are fairly common and not serious pathogens, and not likely to leave my garden except for people I may share my plant materials with. It’s hard to understand why it would be a concern for anyone else. Anyone who wanted to avoid the pathogens would easily be able to.

Comparing it with Human Diseases

As I’m writing this a corona virus is spreading from China. It’s obvious why this should be a special concern, and why we would want to try to stop the spread. Likewise, there may be some plant pests we would want to try to control in a similar way.

Just like it’s not possible to lock down the entire world over the corona virus, or restrict people’s movements in general to prevent the spread of diseases, it doesn’t make sense to stop all movement of plant materials over fear of spreading diseases.

A much better solution is to raise awareness of plant diseases, and measures that can be taken to control their spread. If there are specific concerns over specific types of plants, these can be inspected, treated or rejected at international borders. If a true emergency exists, appropriate measures can be taken. If regional concerns exist, for example concerning a regionally important crop, these can often be locally addressed.