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New Genomic Techniques (NGTs)

The EU Commission is proposing legalizing and regulating NGTs. I’m cautiously optimistic, and think this will be a useful tool for seed savers and others working in biodiversity.

NGTs are mutagenesis (where the natural mutation of plant materials is sped up with for example X-rays or one of a number of chemicals, including some common household substances) and cisgenesis (one of a number of techniques where genes are manipulated within the same species). In the case of mutagenesys, I’m aware of seed savers already doing this for years. In both cases it’s unlikely anyone could make plant material that couldn’t already exist in nature, and because you are always working within the same species, there’s no meaningful risk of contamination of other plants or setting something free in the wild.

NGTs are really a new generation of GMOs, that shouldn’t be confused with what was used decades ago. NGTs should only be thought of as a tool that speeds up traditional plant breeding.

The intention is that only seeds will be labeled when made from these new techniques, and not food. Some people will find this disturbing, because it will no longer be possible to choose an alternative in the supermarket. I think everyone should understand that once these techniques are legalized, it’s very likely nearly all food will be made from NGTs.

Nagoya Protocol and OSSI

On a more technical side, those working with biodiversity will be interested to know NGTs can be used to get around the Nagoya protocol and OSSI. Both of these are dependent on the pedigree of genetic material. This can be compared to for example a DNA test in humans, which can determine who your ancestors were, as well as your relationship to living relatives. NGTs can be used to scramble this information in genetic materials and in any case you are technically creating new life, which is not covered by these rules.

In general, these techniques will provide a lot of privacy to seed savers. Currently a lot can be revealed by the DNA in their seeds, and NGTs can be used to scramble this information.

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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 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.

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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.