“Hundreds of vegetable varieties have been lost from UK soils and are now illegal to grow. But the conservation battle goes on’, says Paul Evans of the Guardian UK (1).
I should more correctly say, ‘said’, as the article was written July 18, 2007. However, it caught my attention sufficiently to lead me on a fascinating journey of discovery. A good story requires a visit to the past, and so that’s where my cyber footprints went.
Seed breeders’ rights, as they are understood in the UK today, means that breeders have intellectual property rights over any new varieties of plants they have developed and current legislation (Plant Varieties Act,1997) allows them to charge royalties for others’ use of these legally protected varieties (2).
The origin of plant breeders’ rights dates back to 17th and 18th century colonialism (3). Plant species were hauled across continents, creating aggressive competition for plant genetic resources. Measures were undertaken to create greater control of this movement. It wasn’t until 1906, however, that anyone sought a legal means for controlling the marketing of plants. This first occurred in the US as a proposed bill for the ‘protection’ of horticultural plants. The proposal became the ‘Plant Patent Act, 1930’, which initially allowed property rights over asexually reproduced varieties of plants (3). Asexual reproduction is cloning. This means that if you decide to propagate apple trees by taking a stem cutting, you have created a genetic clone of your tree, for which you can apply for a patent. This act has since been extended and now exists as the Plant Variety Protection Act. An important point in this act is that farmers are entitled to save and use the seed from patented plants for their own use, but they can’t sell this seed.
This seemed puzzling to me. How is it possible for a company like Monsanto to have so much success against small farmers for exercising this right? One product that Monsanto has developed is a genetically modified variety of soya bean. It is bred for resistance against herbicides, which means you can kill the competition, i.e. your weeds, but your beans survive. Farmers who purchase patented Monsanto products enter into a contract which requires that seed is not saved. Those who do have paid the price of costly court defences, without success (e.g. Monsanto vs Bowman). According to the Plant Variety Protection Act, farmers should have an exemption. So, why is it that such a contract would hold?
The answer appears to lie in something called utility patents. A legal decision, known as the Ex Parte Hibberd (1985), determined that patents which applied to inventors could also apply to plants. Genetically engineered plants are often successful candidates for a utility patent (4;5) . The farmers’ exemption given in the Plant Variety Protection Act (1970) is not a feature of utility patents. Companies and research facilities which genetically alter the make up of a plant variety have an intellectual property right to that variety and they do have the right to insist that their seeds are not saved and used by farmers. As Monsanto explains:
“Monsanto files suit against farmers who breach their contracts and infringe our patents” (6)
They claim to invest $2.6 dollars daily in research. In order to continue research, they need to protect their property rights. Their reasoning is that it has benefits to consumers who want hardy crops with high yields. However, what about the rights of others? Imagine yourself as a small farmer. You are an organic farmer committed to non GM varieties. You sow your soya bean crop, clean and save its seeds. Now imagine that your farm is situated next to another which makes use of genetically modified Monsanto seed. It would be highly likely that cross pollination occurs, but you would be unaware of this. You save your seed and replant. Later you find yourself in a lawsuit against Monsanto, who claims intellectual property theft. An unlikely scenario? According to Monsanto, yes. This is a scenario that would never occur.
“It has never been, nor will it be, Monsanto policy to exercise its patent rights where trace amounts of our patented traits are present in farmers’ fields as a result of inadvertent means. We have no motivation to conduct business in this manner, nor have we ever attempted to conduct business in this manner — and we surely would not prevail in the courts if we did.” (7)
There is one part of this statement which appears to be true. They did not prevail in the court when they attempted to conduct business in this manner. David Schmeiser of Canada was a farmer of 50 years who grew canola (rapeseed), in addition to wheat and peas. Five farmers in his locality switched to Roundup Ready Canola. Schmeiser never purchased this seed. However, Monsanto testing revealed that more than 95% of his rape plant crop was Roundup Ready canola. It was never determined how this occurred. Monsanto claimed that it was patent infringement, Schmeiser claimed natural contamination from Monsanto’s seed that he didn’t desire.
“I never put those plants on my land. The question is, where do Monsanto’s rights end and mine begin?” (Schmeiser, 1999).
Although the reason for the contamination has never been settled, Schmeiser won his case (8). However, it was not on grounds of accidental contamination, but the extent to which the utility patent could be applied (9). The ethics of Monsanto’s potential to infect non-GM crops remains uncontested in court.
Plant Breeders’ Rights in Europe
During the early part of the 20th century, several attempts were made to protect the rights of plant breeders in Europe, but it wasn’t until 1948 that Italian case law enabled the patenting of plant material. It was determined that new plant varieties are ‘industrial results’ (3). Britain, however, was late into the debate. Whilst a Seed Act was created in 1920, it only protected the name of the variety, not the variety itself. The quality, authenticity and labelling of seeds was not regulated, creating concern among consumers because there was no quality control. Breeders were also concerned about their rights. In 1950, a special committee was formed which made the recommendation to establish an official register of not only variety names but also certification to ensure authenticity. As Rangnekar (2000) states, whilst the rhetoric of the recommendation was couched in language relating to consumer protection, quality assurance was not included (3).
Legislation was again change in 1964. It aimed, as in previous acts to grant proprietary rights to breeders, and to control imported seed trade. However, there was one amendment that is particularly interesting. The new act provided the means for legally authorising measures to prevent ‘injurious cross-pollination’ (10). This sounds hopeful for seed protection, in addition to the protection of plant breeders property rights. However, it is unlikely that the amendment was included in order to protect heritage seeds. Close reading suggests that the kind of cross-pollination most likely to be determined as injurious is that which occurs to a registered and patented variety of seed. Again, the bias of the law is in favour of plant breeders rather than the protection of seeds. However, if a protector of heritage seed did suffer injurious cross-pollination from genetically modified stock, it would have been an interesting test case in the courts. But it would seem that the UK has lost its opportunity to do this.
As a response to EU conventions, 1997 saw the implementation of the Plant Varieties Act. The UK has been an active, albeit contentious, member of the European Union (and its former guises) since 1973. European law overrides UK law. Each current member signed the Treaty of Lisbon which sets the constitutional basis of the union. All new proposed legislation is commensurate with the agreed treaty. This enables European law to hold supremacy over UK law. Due to this, The Plant Varieties Act, 1997 came into being. It continues to maintain breeders’ rights and although farmers have an exception which allows them to save seed, they must pay royalties through the British Society of Plant Breeders which is responsible for the collection of royalties (11). Sadly, though, there appears to be no reference to cross-pollination within this law. Heritage and heirloom varieties are definitely not legally protected from the growing dominance of hybrid and genetically engineered varieties.
Growing heritage seeds
I’ve not yet answered the question of how it may be illegal for anyone to grow heirloom and heritage varieties. I think Paul Evans’ headline lacks an element of accuracy but it is implicitly corrected during his article. It is not illegal to grow heritage plants from seed, but the sale of heirloom seeds is, unless registered and certified.
“Under EU and UK seed legislation, if you want to market certified seed of agricultural and vegetable species covered by the legislation, you can only do so if the species/variety is on a national list and has been officially certified, and you are registered to market such seed.” (12)
The first step in the process is to ensure that a seed variety is included on one of the National Lists or the European Common Catalogue before they can be certified and marketed. Procedures for both listing and certification are complex, lengthy and may require legal assistance. They are, therefore, costly. Criteria are also stringent. This is likely to deter many a small scale seed breeder.
The National Lists include agricultural crop and vegetable varieties approved for certification and marketing in the UK. However, there are three additional lists which may serve the cause of protecting traditional varieties. These are lists designed to conserve old vegetable varieties and the sustainable use of plant genetic resources. The Agricultural Conservation Variety and Vegetable Conservation Varieties are plants that are naturally adapted to local conditions, or have been traditionally grown within a given location, but are threatened by genetic erosion. The third list is the Amateur Vegetable Variety which is a plant grown for particular conditions, but serves no commercial value but is intended for amateur gardeners only. Inclusion on the list is less involved and expensive, but does not entitle the grower to market any seeds from any of these plants (13). Seed banks and seed swapping have been adopted by local and national groups to ensure the protection of the plant varieties in their own right. For example, the Heritage Seed Library is developing a collection of the following:
- “rare landrace varieties, which are adapted to specific growing conditions.
- heirloom varieties that have been saved over many generations. These are unique to the Heritage Seed Library catalogue.
- varieties that have been dropped from popular seed catalogues over the past decade. This occurs for a number of reasons; their lack of popularity with customers, their unsuitability for commercial scale production or simply the prohibitive cost of trialling and National Listing.” (14)
In 2013, the Agricultural and Vegetable Conservation Variety lists and the Amateur Vegetable Variety list were threatened by a proposal from the European Commission. The Commission had two concerns: 1) food safety and 2) increasing EU exports of seeds (15). This proposal caused alarm among small seed companies and particularly those trying to protect and market traditional plant varieties (16).
According to the EU commission, the new law aimed to replace 12 existing directives with a single rule. The regulation would give more autonomy to businesses and reduce bureaucracy. Whilst it also aimed to “enhance biodiversity and opportunities for niche markets through less stringent requirements for old varieties and heterogenous plant material, and for small local producers” and “steer plant breeding towards environmental aims” (17), plant breeders disagreed. The London Freedom Seed Bank, for example, argued that the new proposal would be even more restrictive than the current 12 directives. In effect, the rules which apply to large businesses selling seed for agricultural purposes would be equally applied to amateur gardeners (18). The UK, it argues, is lenient towards amateur gardeners. However, under the new law, this would be lost due to consistency in application across all countries. Is this what the new proposal meant by also having as an aim a principle of a ‘level playing field‘ (17)?
There are two concepts of a level playing field. The first relates to the notion of negative freedom. This is freedom from the interference of others, including the state or any other form of governmental body, like the EU. Negative freedom, it has been argued creates a state of equality of opportunity – no-one is barred from pursuing their own goals. However, for true equality, as I, and others view it, you need to acknowledge that the playing field isn’t level. Some start from a position of privilege and therefore have a headstart in the race, whereas others start from a position of underprivilege. To be able to compete on an equal basis, assistance is needed to get to the starting line at all. This is a freedom to, as opposed to freedom from, also known as positive freedom. Equality of opportunity requires affirmative action.
So it is with amateur gardeners. Whilst I have many issues with UK government, one aspect of its history since WWII has been, to a greater or lesser degree, a recognition of social inequality and social injustice. It would seem that the EU would impose a new form of injustice. Additionally, top-down political approaches to addressing the need for biodiversity and protection of older seed varieties undermines age-old practices which are ensuring this process. For example, could EU law protect the Brighstone bean? The Brighstone bean, as well as other locally specific vegetables have been cherished by communities for up to two centuries. They are nurtured through careful seed saving and propagation (19). They are truly ‘heirloom’ varieties, passed from generation to generation. Top-down politics threatens the empowerment of local participatory democracy and grassroots activism. As the Transition Town Movement has demonstrated, genuine solutions to our global problems is most likely to occur with a bottom-up approach to political decision-making.
Fortunately, grass-roots activism has enabled the arrest of the proposed law. MEPs in particularly were intensively lobbied. It was rejected by the European Parliament by 650 votes to 15 (20). A question mark remained over what the Commission’s response would be to not only this rejection, but also a request to withdraw the proposal completely. Heritage seed promoters awaited the decision with baited breath. In December 2014, it was announced that the proposal had been withdrawn by the Juncker Commission (21). It seems the decision is politically motivated, but for the moment, I feel more encouraged by the decision than I was at the beginning of my investigation into Paul Evans’ headline claim.
However, this optimism requires qualification. I do not trust state and supranational bureaucracy, I trust the indomitable will of the people. Perhaps bottom-up politics will indeed prevail over technocratically driven, top-down, soundbite responses to an ever more urgent problem?