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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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EU Inception Impact Assessment

Introduction

This post is directed towards at least two very different audiences. The first is the EU Commission as a formal response to a possible revision of plant and forest reproductive material legislation (also known as the EU Seed Law). The second audience are the readers in general of this blog, and since I haven’t posted on this in a while, this means I also have to provide a lot of background information. Since my readers fall into a number of categories, you may even consider there are many more than two different audiences.

Everyone reading this has their own expectations about what I should say and how I should say it, and probably many will be disappointed. All I can say, like usual, is the comments section below is open.

Response to the Commission Proposal

For the members of The Commission reading this, let me first say I choose the baseline policy choice: Do Nothing. The remainder of this post is my justification.

Background

In 2013 there was a legislative attempt to change the EU seed laws. Recollections vary, but this attempt failed. Few people were happy with what was proposed. On a technical level, this was an attempt to replace 12 EU directives with a regulation, which would have meant little or no space for local/national interpretation, something that nearly all stakeholders found problematic.

Shortly after this food industry representatives came to an agreement with the Danish Seed Savers to reinterpret the 12 EU directives into local Danish law. Many including myself consider this to be a ‘Gold Standard’ in legislation. Because of how the EU works, this means in principle any European can open a seed company in Denmark and operate under local Danish laws.

Shortly after this was the Organic Regulation. I was politely asked not to participate in these discussions, which was fine because I don’t have a lot of interest in certified organic food. What was clear was that civil society was all but excluded from these discussions. In reality these discussions were on adapting EU Seed Laws to standards established by the Convention on Biological Diversity. In simple terms, they were largely between the seed industry and the world’s wealthy families and individuals, who are in the process of privatizing biodiversity. Since not many people care about certified organic food, there was not a lot of attention paid to this. An interesting ‘third party’ in these discussions was Copa-cogeca, Europe’s largest farmers union, whose position is probably closer to that of civil society than any of the other players. There was quite a fight between the various parties over the Organic Regulation, that is partly still ongoing, but the Organic Regulation has passed and will come into force.

It would be one thing if the wealthy families of the world formed their own political party, or otherwise their own identity. At least then we would all know who we are talking to and negotiating with. In the case of EU seed laws, the wealthy families have simply taken over civil society’s seed movements, and now use them as a mouthpiece for their own political goals. The entire seed movement in many parts of the world has been all but decimated. In Europe the main mailing list the seed movement uses to communicate has been taken over by the ultra-wealthy and all discussions are managed. I think this is short-sighted, because I think an intact seed movement could be a benefit to a lot of people in a lot of ways. I also think it’s dishonest for the ultra-wealthy to pretend to be in agreement with civil society. It’s just a big lie.

It’s interesting how the battle over our food has become something of a microcosm of society as a whole, and how there won’t be any solutions until world governments figure out how to tax wealthy people and corporations. It’s also interesting EU seed law has become a battle between the world’s ultra-wealthy and corporations, when the ultra-wealthy own the corporations. It’s only the legal definition of a corporation that keeps them from teaming up together.

Convention on Biological Diversity (CBD)

Everything depends on the next meeting of the CBD in Kunmig, China in October. Hopefully they will decide the very problematic privatizing of the world’s biodiversity should be scraped. This would be in the interests of civil society, and strangely enough also the seed industry in Europe. I’m pretty sure this would also be what the farming union Copa-cogeca would prefer as well. This is really the most important issue, more important than any relaxation of seed laws in Europe or elsewhere. This privatizing of biodiversity is much worse than any patents, IPR, seed laws or anything similar we currently face. Literally we are facing the ultra-wealthy owning all the worlds biodiversity, dolling it out gene by gene, and turning our food and nature into something that’s marketed by startups like energy saving light bulbs, electric cars or new mobile phone features.

Being able to implement the privatizing of biodiversity depends on being able to achieve many of the things civil society have been working on for a long time. For example patents, PVP, other IPR and limitations on what farmers can grow all stand in the way of implementing privatization. The ultra-wealthy are working very hard on these issues, fraudulently, in the name of civil society.

Civil society therefore needs to do an about face, and take positions counter-intuitive when compared to the past. We need to join forces with anyone who opposes the privatization biodiversity, and this means standing by the seed industry and Copa-cogeca for the time being. The seed industry did work with us on changing the Danish seed laws, and has indicated this could be a model for the future. The ultra-wealthy are currently standing in the way of this, and any future change in EU seed laws puts the current Danish seed laws at risk. If the CBD decides to abandon privatization, we will certainly want to reconsider.

It’s also to the advantage of civil society to (carefully) let the battle between corporations and ultra-wealthy rage on and wear out both sides.

Current Legislative Proposal

While Seed Law reform in Europe is desperately needed, this is not the time or way for it to be done. This is something the ultra-wealthy has to do, and win. There is no place for the opinions of civil society, and these have been successfully silenced.

Reform of the EU seed law is something that should be cause for celebration. Current EU seed laws date back to WWII and the eugenics program. The current EU seed law has genetic tests called DUS and VCU. DUS or Distinct, Uniform and Stable is the test that gives our food blond hair and blue eyes. VCU or Value for Cultivation and Use gives our food superior intellect. These tests don’t serve any purpose, and should be scraped. We are still undergoing a Holocaust in our food systems. Freeing ourselves from this has parallels with every other form of racism in society today.

Instead of celebrating, we have to oppose the changes in order to prevent privatization under the Convention on Biological Diversity. This isn’t a cause for celebration, it’s not a news story, it’s nothing. We have no choice but sit back and wait to be screwed one way or another.

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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.

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OSSI Follow-up, Seed Movement in General

In the past few weeks I’ve had some more thoughts about OSSI.  What I wrote about OSSI before was pretty stark, and I want to offer some ideas for the way forward for everyone.  No one has to read this blog, and no one has to do what it says.  I’m just trying to lay out the situation as I see it, so please do what you want with the information.

CBD and ITPGRFA

These two treaties, the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) are causing a lot of problems now, especially as provisions of the CBD and associated Nagoya Protocol are coming into force.  The inherent greed of these treaties are causing problems for almost everyone.  If you’re in the US you’re in a special situation because the US is not a party of the CBD and Nagoya Protocol, meaning your seeds are very sought after.

The problems with the US Seed Savers Exchange were in part because the US was not a party to the ITPGRFA (the US is now a party to this treaty).  The ITPGRFA basically allows seeds to be stolen without the owners permission.  Because the US wasn’t a party to this treaty, it wasn’t as simple as just becoming an SSE member and requesting all the seeds, they either needed the permission of all the individual members or they needed permission of the management.  Kent Whealy refused to give this permission, so he was pushed out of the way.  He didn’t fully understand what was happening at the time, but was trying to explain it the best he could.

The CBD establishes rights of ownership over seeds.  It is the privatization of biodiversity.  If you live outside the US and buy a package of seeds you only have the right to plant and grow those seeds, not the right to save seeds or use the plants in breeding projects.  The situation is very different if someone who owns the seeds ‘gives’ them to you.  For this reason it’s now almost a requirement to transfer seeds with a contract, either attached to the package of seeds or buried in the terms and conditions of sale.

Exclusive ‘ownership’ of seeds is a valuable commodity, also in the US.

I’m not a lawyer, and the contents of these treaties are very complicated.  The largest private collections of seeds are owned by Kokopelli and Arche Noah in Europe, and they have lawyers busy working out all the consequences of the treaties on their collections.  I would guess over time these organizations and others will come up with some solutions.  In addition, I’m sure there will be court cases and other reinterpretations of the treaties, and the situation will change.  There is certainly a big fight ahead of us.

What Can you Do?

I hope very much these treaties will fail, and I believe they will eventually.  The issue is more how to manage the fallout and damage and, in the meantime, continue to work on saving biodiversity.

The cohesion of organizations supporting seed saving efforts is critical, and in many ways it’s hard to imagine the absence of this, but I think these days are gone.  Every organization of more than a few people will just be target for infiltration.  Every collection of seeds will be impossible to protect without the efforts of a dedicated lawyer.  I think it’s important to go back to the days of seed lists informally traded between friends, and in the US possibly seed companies offering their seeds over the Internet.  We probably have to explore the need for seed companies to have terms and conditions for their seeds, I don’t have a good answer for this now.

Written contracts, terms of use, SMTAs and pledges are all extremely important.  It’s very important you not sign anything, or otherwise accept any restrictions on any seeds you receive or give.  The OSSI seed pledge seemed innocent enough at the beginning, but turned out to be a problem.  It’s very important you don’t offer your seeds in any sort of exclusive manner.  If seeds do have restrictions or contracts, it’s important to keep track of these.  If there are future court cases, it’s important to know exactly how seeds have changed hands and what terms and conditions apply.  DNA analysis can easily establish pedigree, and can be compared to other seeds.  You aren’t doing anyone any favors for example by just ignoring the fact that seeds are OSSI or if you signed an SMTA, because this can be established with a DNA test.

Outside of the US, not keeping track of these contracts or the ownership of seeds is punishable on the level of the War on Drugs.  The CBD simply says the level of punishment should be sufficient to ensure compliance, limited only by your national constitution.  You have to wonder if their intention was to promote biodiversity or make profits.

Don’t willingly submit your seeds for DNA testing.  The fact is they will do this anyway, and there’s not much you can do.  I know of several examples in Europe where seeds are stolen for DNA analysis.  This usually results in the people or organizations involved paying the same price the Seed Savers Exchange did.

Avoid the resources of genebanks, and don’t pay more for biodiversity.  Already problems are occurring because people are not accepting SMTAs, and royalties are not being paid for the use of seeds.  Even requesting genebank resources as an individual contributes to this, because they are counting on you to use their seeds and pass them on to others without the knowledge that an SMTA was signed.  If not enough royalties are paid, the CBD and Svalbard will collapse.

Keep any seeds you have, and keep doing what you’re doing.  Being able to fight what’s going on depends on the information about seeds, and what sort of contracts have been signed, not the seeds themselves.  There are no bad seeds!  Hopefully we can fight these changes, and fully legalize all seeds again.  The best tactic for now is non-cooperation with authorities.

Be wary of Sociologists and Social Scientists.  Of course there are all kinds of people and not all of them are bad, but be particularly concerned if they ask you to give them all of your seeds.  There has been a lot of research in the last few decades concerning farmers and seed savers, and they know exactly how you think and what you expect.

Some Conclusions

If you gave your seeds to OSSI and they have been registered and DNA sequenced, they have been stolen.  You can possibly rectify the situation a bit by doing another final selection if you have some earlier generations.  If there is not an exact DNA match, you can release a new version of your variety to replace the old one.  In any case we should accept the situation and move on.

Certified Organic is not going to be a solution to global warming, and it’s not going to be the small, community or family farmer regenerative agriculture we need.  If your income or livelihood depends on certification, great go ahead, but you aren’t doing anyone any favors by otherwise promoting or participating with it.  Organizations like the Organic Seed Alliance and LIVESEED have some great people, but many of the fundamental principles behind them are flawed.  Work with the people, not the organizations.

At it’s peak Europe had about 50 seed saving organizations.  There are a couple of bad apples, but in general these all have great and dedicated people.  Kokopelli and Arche Noah are the largest, and both deserve your support.  If you live in the US, you can really help out by sharing your seeds with them on a non-exclusive basis, both the organizations and members.  Be sure to communicate with them any SMTAs, contracts or terms and conditions you are aware of.

I would be happy to facilitate a European organization that allowed seed savers in the US to try to market their seeds in Europe on an exclusive basis.  Along the lines of what OSSI was planning to do, but instead of being owned and controlled by the seed industry, and based on lies and fake news, one that was controlled and worked for the seed savers themselves, based on honesty and voluntary contributions.  If anyone is interested, get in touch.  In the meantime, you could look at Kokopelli and Arche Noah, and consider anything they might organize.  Anything like this is going to be problematic to say the least, but I would be happy to give advice and my opinions on it.

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EU Organic Regulation a Ridiculous Farce

Due to come into force Jan 2021, and replace the existing organic legislation, if anything the new EU Organic Regulation is a step backwards.  Together with the CBD, the red tape will be too much except for large or established businesses.

A meeting took place in the EU Parliament on 16 October 2018 that confirms this.  Other than watching this meeting over the Internet, I haven’t been following this legislation, so I may be missing some details.

The EU already has seed legislation that dates back to WWII.  Many other countries, like the US, Australia and New Zealand don’t have any comparable legislation.   In these places, seeds are only regulated according to rules on packaging and phytosanitary issues.  The EU has a well established seed industry, that seeks to keep it’s dominance and destroy competition.  It’s become well known for the loss of biodiversity that’s taken place since WWII, as agriculture has been transitioned to large monocultures.

The rules for organic food, for legal reasons, needed to be updated and some seed people were invited to join the discussion.  A so-called ‘trialogue’ took place between the EU Commission, Parliament and Council.  In order to provide good publicity and entice some people working with biodiversity to join, some proposals were made along the lines of ‘agroecology’, farmers saving their own seeds, no more registration for organic varieties, ‘heterogeneous material’ and so on.  In the end very few meaningful positive developments remained, and most of these are subject to ‘delegated acts’, meaning they can be administratively abolished later.

While I don’t want to discourage anyone who wants to make use of these changes in the legislation to start a business or otherwise make money, I doubt many small farmers or other operators will be able to make good use of the new legislation.

I talked about this earlier, but my advice is if you are a consumer to refuse to pay more for organic varieties and give preference to non organic varieties.  I’m going to spell out a few specific drawbacks below.

This outcome is really a disaster for efforts to use agriculture as a tool to combat climate change.

Seed Saving without Seed Saving

One of the promises was farmers’ would be able to save their own on farm seeds for replanting.  Yes, seed replication will be allowed under the new legislation, but in almost all cases this will involve registered varieties in which royalties will have to be paid or contractual restrictions.  If a farmer does their own breeding or makes crosses, these have to be registered variety by variety, and non-varieties like combinations of varieties or anything without identifiable phenotypes will not be allowed.  This isn’t likely to be of a lot of benefit, because this sort of seed replication can mostly be done cheaper in other ways.

Permaculture without Permaculture

Also called non-permaculture or agroecology.  This is where we need high genetic variability for specific geographic locations or variable weather conditions possibly caused by global warming.

In this new regulation, this will have to be implemented with specific varieties.  While some varieties will have some variability, this won’t be enough variety to make full use of biodiversity.

An industry spokesperson at this meeting emphasized the legislation needed to facilitate large, high performance monocultures, so mostly we seem to be talking about non-permaculture in monocultures.

Protect Old Varieties

There was a tired old mantra repeated several times at the meeting, on how this legislation was going to protect old varieties.  It’s true, in many cases this legislation will allow old varieties to be sold straight out of a genebank or private collection, but this isn’t nearly as interesting as being able to easily bring these varieties up to date with breeding efforts, and create more biodiversity by combining them with other varieties into a mix.

Organic will have Priority over Conventional

It’s the intention that, because seeds in the new organic regulation will be cheaper and easier to register, this will provide a conduit for more varieties in conventional agriculture.  That is, once a new organic variety exists, seeds can legally be sold to a conventional farmer who could grow them at a later date.  There are still discussions taking place over if all organic seeds can legally be sold for conventional farming, and in any case there will be a delay before new varieties become available to conventional farmers.

More Varieties is not Biodiversity

There was a lot of discussion about the shortcomings of the current system with national seed lists.  Even though these lists have thousands of varieties, somehow biodiversity is going to be increased by creating lists of even more varieties.  Biodiversity involves making use of genes, and this is promoted by eliminating the administrative burden of variety registration and by increasing the variability of the seeds used.  This has nothing to do with how many seeds are on a list.

Conclusion

This is just another EU political train wreck.  After 18 trialogue sessions, and lots of work by lots of people, very little was accomplished.

Like I said above, I don’t mean to discourage anyone who wants to try anyway, but I don’t think many people are going to be motivated to work supporting biodiversity in this context.

It’s almost time for elections.  It’s time to let EU politicians know what we think.