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The War on Seeds

Nagoya Protocol Article 15.1:

“Each Party shall take appropriate, effective and proportionate legislative, administrative or policy measures to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with…”

The world hasn’t faced something like this since the War on Drugs.

In other words, if you live in one of the more than 100 countries that have implemented the Nagoya Protocol as part of the Convention on Biological Diversity (CBD), you are subject to potentially unlimited penalties for misuse of genetic resources.  Use of genetic resources can include seed saving or amateur plant breeding.  Misuse can include improper administration of the ownership of the seeds, if you are following the appropriate terms and conditions of use, and if you have paid the appropriate royalties.

It’s also widely accepted that the administration that goes along with maintaining or transferring seeds and other genetic resources between two parties is so legally complex, it’s often beyond the capabilities of an average person.  I don’t usually pay a lot of attention to Wikipedia, but in their explanation of the Nagoya Protocol (text subject to change), as a criticism, they mention:

Criticism

Many scientists have voiced concern over the protocol, fearing the increased red tape will hamper disease prevention and conservation efforts, and that the threat of possible imprisonment of scientists will have a chilling effect on research. Non-commercial biodiversity researchers and institutions such as natural history museums fear maintaining biological reference collections and exchanging material between institutions will become difficult.

In other words, even natural history museums aren’t completely sure how to exchange material with one another anymore, and this uncertainty is backed up with possible imprisonment for getting it wrong.  This is likely to impact a large number of scientific disciplines.

In addition, every time genetic resources change hands a new set of administration is generated, and in the case of breeding work involving crosses the administration of the parent lines is passed on to the progeny.  Restrictions, terms and conditions get passed on in their entirety, and royalties are divided proportionally according to the percentage of genes in the resulting crosses and their respective ownership.

In order to continue to work with biodiversity, seed saving, plant breeding and so on, for most people, it will be necessary to do it as part of a larger organization or cooperative that can manage the administration and commercial negotiations surrounding it.

If anyone does continue working on their own, the most likely scenario is that they will not want to trade seeds with others.  This means they will not be able to use material like OSSI seeds, because legally these must be shared with others on request.

Winners and Losers

The profit potential is clear.  If you own genetic material, you own the building blocks for agriculture.  It’s like owning real estate, everyone needs a place to live, and there’s lots of profit to be had in speculating and being a landlord.  Those who are successful stand to make a lot of money.

The devastation is also clear.  We saw what happened to the US Seed Savers Exchange.  Some scientists are also stopping or changing their areas of work.  With respect to this blog, I can also see a sharp decrease in interest in biodiversity and seed saving over that last several years, especially in Europe.  A lot of people are simply moving on to doing other things.

Scenario One:  The implementation of the CBD and Nagoya Protocol is successful.

In this case, if seed saving is going to survive in the countries covered by these treaties, it’s going to have to evolve and become more business oriented.  Everything is going to surround private collections of genetic resources and coalitions of collections.  It’s likely a group or groups of seed savers will come together and try to organize an alternative to what’s been collected in Svalbard and genebanks worldwide.

There are countries who are members or non-members of the different treaties.  For example the US is a member of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), but not CBD.  Mexico is a member of CBD but not ITPGRFA.  The link above shows what countries are a member of the Nagoya protocol.  Over time it will be possible to work out the different combinations of membership, the consequences and possibly some loopholes.  There will also be court cases, and the treaties themselves may change.

There is a lot of work here for those who are inclined to do this.  Be sure to read what I wrote a few days ago over this.

Scenario Two:  These treaties fail or partly fail.

Many things are not going well for those trying to implement CBD and Nagoya.  There is a shortage of funding and a lot of opposition.  The CBD was conceived about 30 years ago, and the world has changed a lot in the meantime.  I think there is a real possibility of everything falling apart.

There are some pretty serious consequences that go along with this scenario too.  Svalbard and the global network of genebanks is already having funding issues, and has not been generating as much income as expected.  If these treaties actually fail, there’s no obvious alternative funding.  The worldwide seed movement is really going to have to pick up the pieces and start from the beginning.  Not just seed saving, but all disciplines impacted by the CBD.

This could be made a lot worse, if there was a long period of uncertainty or a prolonged failure.

What You Can do to Help

It’s bad timing that we seem to be having a lull in interest in biodiversity and seed saving.  Regardless of which of these two scenarios we have to deal with, we all need to mobilize in the right way as quickly as possible.  It’s important we stay motivated, and keep doing whatever it is we are doing.

Whatever you can do to stimulate interest in biodiversity would be a good thing.  If you have a blog, write about it on the Internet.  If you have a garden, then grow, save and share heirloom seeds.  If you want to learn something, then teach yourself or find someone who can help you.

Even if you’re just a consumer or another unrelated professional, just talking about biodiversity and spreading the word can really help a lot.

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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.

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Why I’m Against the Open Source Seed Initiative (OSSI)

The OSSI is a mechanism to facilitate the privatization of the world’s agricultural biodiversity.  It’s no different from what the US Seed Savers Exchange and similar organizations have become.  It’s a tool of the wealthy and powerful families who use it as a way to promote division in those who work with biodiversity, and then to spread fake news to replace reality.  It’s an extension of the vision some social studies academics have, and it’s purpose is a place for us to occupy in the future they’ve designed for us.

In the US OSSI takes the form of a fairly innocent pledge, but elsewhere in the world it’s a legally binding contract with wide ranging consequences.

Nothing to do with Open Source

As someone who has a number of years experience working with Open Source software, let me be clear that OSSI is something completely different.

First of all there is no source with open source seeds.  This is a really important difference.  Seeds are not software.

Open source software can be modified and sold, and the programmer can retain the rights over their own enhancements.  The legally binding version of OSSI in Europe is all encompassing, and also applies to all enhancements or future developments.  Any plant breeder who works with OSSI material looses rights of control over their own material.

Open source software is available to anyone, even those to don’t agree with or accept the licensing terms.  OSSI seeds cannot be legally transfered without a binding contract, and those who do not accept the contract may not legally use the seeds.

Open source software exists in an environment where downloads are always free over the Internet.  This is not the case with seeds, which require physical ownership, and are not always free.  This means not everyone necessarily has access to the material for a reasonable price.

The philosophy of Open Source software concerns what you are allowed to do.  Pretty much the only thing you aren’t allowed to do is claim ownership over it.  The philosophy behind the legally binding OSSI is that you must share it, and don’t have the right to keep it privately in your own garden if you choose.  This is perverted and wrong.

The Real Purpose of OSSI

The worlds genetic resources are being privatized, with some falling into private hands.  This can create a situation where some of it is not usable, or possibly not usable by everyone.  For example, maybe a plant breeder has discovered a gene that no one else has, and decides to only let a small number of farmers grow it.  Suddenly this could be a major marketing advantage compared to a company like Monsanto-Bayer.  The purpose of OSSI is to legally require all genetic material be available to the larger agricultural companies.

Under the terms of the CBD and the Nagoya Protocol, genetic material generally has to be transfered from one party to another by means of a legally binding contract.  Unless you have access to fairly extensive legal advice, developing these contracts is beyond the means of most people.  In addition, maintaining the administration and business aspects is generally beyond the means of a single farmer or plant breeder, and mostly has to be done within organizations and cooperatives.

For many people, legally speaking, the best option is to simply collect biodiversity and not share it with anyone, barring a few exceptions.  OSSI undermines this option.

The Social Studies Angle

It seems strange this issue would come down to social studies academics.  Most of us have no contact with this discipline.  Most of us were unaware while they were busy writing and implementing the CBD, and it’s now been adopted by almost every country on the planet.

Jack Kloppenburg, the founder of OSSI, has a sociology background which is part of social studies.

I don’t think the world or the seed movement needs our future planned and laid out by any one or any group.  I don’t think many people would willingly participate.

What Can We Do?

This isn’t an easy question to answer.  Certainly some of us are employed by OSSI or other social studies initiatives.  Everyone needs an income to survive.

Starting an independent initiative is increasingly difficult.  It’s not possible to start something like the Seed Savers Exchange Kent Whealy and his wife Diane did in their living room in 1975.  You are immediately up against a great deal of money and people who want to maintain control over the situation.  The reality is we need to get used to doing our own thing, under the radar of these organizations.

Certainly an important part of working with biodiversity is being very careful about accepting (shrink-wrapped) contracts and terms and conditions with seeds.  These are becoming increasingly important.

I think this is going to be a topic of discussion for a long time.  I welcome any comments anyone has, either as a public comment here or privately via the contact link on this blog.

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Convention on Biodiversity (CBD)

In short, the CBD is the privatization of biodiversity.

According to this treaty, all biodiversity is owned by someone; sometimes nations and sometimes privately.  One thing for sure, the CBD is coming, and for the moment it’s not likely anyone can stop it.

The CBD caught a lot of us in the seed movement by surprise.  It’s been underway for probably 30 or more years, and no secret, but most of us doubted it had anything to do with what we were working on.  International treaties are always hard to just read and understand, and most of them have underlying intentions that aren’t always made clear.  This treaty is no exception.

I’m no lawyer, and I’m not even writing this post with a copy of the treaty for reference, so it’s possible there are technical errors or omissions here.  The purpose of this post is just to give an over all idea of what’s going on.

Parties

All UN member nations are a party to this treaty except the United States and the Vatican.  The US is always reluctant to be legally bound by international treaties, and says it believes domestic law offers them the same protection.

This makes it one of the most universally accepted treaties in the world.  It also creates an interesting situation in the US.

A great deal of this treaty is based on written agreements between parties, and since these are generally enforcible everywhere, even people in the US are going to feel the impact of this treaty.

Global Seed Vault at Svalbard

For decades now, using the CBD sister treaty, The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the genetic resources for agriculture have been stolen from around the world and stored at Svalbard.  Now they are to be sold back to us using the CBD.

The costs of running a seed vault like Svalbard should not be underestimated.  Stocks need to be maintained for distribution, and periodically all genetic resources need to be regrown or they will die in storage.  As they are regrown, they need to be well isolated and kept genetically pure.  History is full of projects like Svalbard, that once started could not raise sufficient funds to keep the genetic resources alive.  In fact, there are not really many examples of successful long term genetic resource storage.

There is every reason to believe that Svalbard will eventually fail, and in fact they have recently been involved in large scale fund raising efforts.  The global system for storing our genetic resources is apparently currently in the process of failing, slowly, not catastrophically.

The global system for storing genetic resources was supposed to be funded by it’s users.  In practice that’s not happening.  Industrial users of genetic resources are supposed to return a percentage of their profits, but the rate of this happening is very low.

Users of genetic resources that employ intellectual property rights are supposed to pay back a percentage of these profits, but the system of patenting seeds is in disarray now, and it’s unlikely to be benefiting Svalbard or genetic conservation to any great extent.

The Nagoya Protocol

One of the most unworkable parts of the CBD is the Nagoya Protocol.  About half the nations who are a party to the main CBD treaty, are also a party to this protocol.

This protocol basically says for all species related to food, someone owns all the genes in all species.

Under this protocol, a seed company can continue to operate as they do now, but only if the customer buying the seeds doesn’t use them for ‘purposes of biodiversity’.  In other words, seeds cannot be saved from the resulting plants and they can’t be used in breeding projects.

Otherwise, when not just seeds are at issue, but also biodiversity, transfer of the seeds generally has to take place on the basis of a contract.  This contract can say almost anything, and writing these contracts is a big and expensive legal undertaking.  Among other things, these contracts can specify restrictions and mandate royalties.

Over time as the seeds get sold, resold, and used for breeding projects, these contracts accumulate.  Restrictions always remain and accumulate, and royalties get divided into smaller and smaller slices, and distributed to more and more people.

In fact, the administration of these contracts is so complex, it’s not really realistic for a single person to manage it themselves.  In general you have to think in terms of cooperatives or other organizations managing the business and administrative aspects.

In case you might be dismissive about the Nagoya Protocol, and just ignore all the administration, the treaty has a surprise waiting for you.  The treaty specifies the member states shall assess ‘sufficient penalties to ensure compliance’.  In other words, if you don’t do the paperwork correctly, your national government must apply increasing penalties — even incarceration, limited only by the constitutionality of those penalties — until you get it right.

The Backers

Who’s behind the CBD and ITPGRFA?

The visible parties are mostly social studies related academics.  This might sound a little strange, as many of us even with university degrees may have never have even taken a social studies class.  I’m going to go a little deeper into this in other posts, but basically these are people who’s job it is to both study past societies and design future societies.  A lot of the activity for these treaties comes out of The International Institute for Social Studies in The Hague (https://www.iss.nl/), and related people in Rome.

Behind the academics however are the wealthy and powerful families of the US and Europe, with unlimited funds — the 1%.  For example Amy Goldman of the Goldman-Sax family is a prominent figure associated with the American Seed Savers Exchange and Svalbard, the Bill and Melinda Gates foundation helped fund Svalbard, the Rockefeller foundation is deeply involved in many direct and indirect ways.  There are many other wealthy families involved, also many European families.

What Can We Do?

This is a complicated question, and it depends a bit on how connected you are to biodiversity and where you live.  This is probably going to be a topic of discussion for a long time.

There are a number of holes and weaknesses in these treaties, and different countries are parties to different parts of it.  For example, people in the US may be in a position to undermine some parts of the treaty by supplying genetic material to people in other places.  Many countries are not a party to the Nagoya Protocol and might find themselves in a similar position.

If you are the holder of a major collection of biodiversity, you may be able to do something creative by licensing it’s use.  European seed saving organizations Arche Noah and Kokopelli have taken very different but clever approaches.

If you’re just a consumer, keep in mind the whole premise of these treaties is that biodiversity is precious, which it is, and something people will pay a lot of money for, which I find doubtful.  As a consumer, keep your wits about you and think about what you’re paying for.  In Europe, certified organic isn’t what it used to be, and maybe isn’t so interesting anymore.  Don’t pay unnecessarily for your food, and try to buy as directly as possible from the source.

Everyone could benefit by educating themselves on fake news, and how the wealthy classes control people.

I don’t pretend all social studies people are bad, but many are at least a little suspect.  Don’t be so quick to believe the things they say, and consider they are often the source of fake news of the wealthy classes.