Herding cats that don’t exist: Proposed changes to EU seed law

Some of you might be aware of recent proposed changes to EU seed regulations. It got some time on BBC Radio 4’s ‘Farming Today‘, but other than that, it’s really only knocking around the blogosphere, realseeds.co.uk and seed-sovereignty.org being the main ports of call.  For a sense of the anger it is generating in some quarters (and, admittedly, a bit of fun) give this a watch.

The main problem with it, is that it appears to make it illegal to sell or trade seeds of varieties that have not gone through the lengthy and expensive process of registration. There is a very long history to this sort of political, social and economic control, one which my thesis tackles directly. Instead of writing a general post, I instead want to focus upon a particular problem that I feel besets this particular piece of legislation.

The potted history I have come up with after some research this morning (if you know of a better one/know where I have gone wrong, please write to me in the comments) goes something like this. In 2008, as part of an EC wide ‘Better Regulation’ initiative, current laws governing seeds traded in the EU were reviewed. It was from this review that the current legislation eventually developed. Its Final Report ultimately acknowledged that everyone was pretty happy with the current set-up,  but there was room for more clarity (can never have enough clarity) and, more importantly, there was a need “to introduce more flexibility in the regulatory framework.” Why, and what does this mean? And what about the cats!?

Varieties don’t exist. I don’t only mean in the ‘just incipient species’ sense. Hybrid varieties are of course different, thanks to their crumbling apart after a single years propagation. But hybrids have received far too much attention already, and thanks to this inbuilt ‘lock’ they don’t concern us here. I want to talk about the vast majority of plant varieties that often begin life in a cross, but are subsequently self pollinated and selected over a number of years until they are tolerably Distinct, Uniform and Stable. This DUS testing, by the way, is the criteria used in managing the boundary between those varieties that exist and don’t exist. Knowing that there are such criteria, and knowing that it is possible to fall just short of fulfilling them, should already begin to point you in the direction of my thinking.

Of course varieties exist. Whole Recommended Lists are written to describe each of them, explaining their peculiarities and qualities. [Quick plug for my thesis, the Recommended Lists were begun by the National Institute of Agricultural Botany during the Second World War, though for reasons you might not suspect, see my thesis, plug, plug]. But I would suggest that this is the extent of their existence; the extent to which they can be subjected to bureaucratic control. Not market or commercial control, I should add. Plant breeders will pluck breeding material from you as soon as look at you, and after a number of years, claim to have transformed it by their own hand and eye. These claims will be more or less legitimate, and be more or less likely to pass a DUS test. The point of this post is to explain that ALL varieties have a history and it is only this history that constitutes their existence. The problem bureaucracies like the EC have, is that – thus far – only some aspects of that history have been considered legitimate.

For instance, the ‘flexibility’ apparently desired by the Final Report quoted above was designed to tackle ‘conservation’ or ‘population varieties’, the very ones that the current legislation looks set to outlaw.

“To make the official rules for uniformity of a variety more flexible, in order to allow the registration of non uniform varieties e.g. conservation varieties at costs proportionate to the niche markets they target. In such a case, it would be important to also develop a traceability system with indication of the origin of the marketed variety, of the varieties used for its breeding as well as the specific breeding methods used and to inform the user accordingly.”

I think this relies on a very esoteric use of the word ‘flexibility’. A truly flexible system will be one that recognises that varieties produced through population breeding (sometimes also known as evolutionary breeding) are as real as any other variety. The crucial mistake is the demand for TRACEABILITY. Varieties in the real world are sloppy things that roam around and can’t be traced (cats that don’t exist). Of course multinational corporations release varieties that can be traced from F1 to farm gate, but that’s the point of their business model. By contrast, farmers and other growers have traditionally been all about sharing (though their autonomy continues to become more circumspect, and in the age of subsidy the extent to which ‘autonomy’ in farmers is desirable is a different and larger question). Yes they still made claims about the distinct identity of the varieties they subsequently produced, and yes this wasn’t a perfectly harmonious world free from claims of theft, often commercially damaging theft. But what their world does recognise is this:

The maintenance of varietal identity is a matter of skill. That skill can be found in the laboratories and behind the barbed-wire fences of multinational breeding firms (I doubt many actually use barbed-wire, but its an easy bit of imagery I couldn’t resist) and it can also be found in growers collectives and farmers cooperatives and the individual fields of farmers. If your legislation fails to recognise this element of skillful maintenance – or worse, assumes that ONLY multinational breeding firms should have this responsibility – then it will always be destined to rub angrily against the real world of agriculture. It is the ‘maintenance’ or ‘husbandry’ element of varietal development that current legislation fails to capture. Once this aspect of the history of each variety is recognised, a new and better legislative framework should become possible.

That’s 1000 words, so should stop, but I’ve more to say. Also, if you think I sound nuts please tell me why.

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4 thoughts on “Herding cats that don’t exist: Proposed changes to EU seed law

  1. Pingback: Apple Fanboys and Agricultural Hardware: Proposed changes to EU seed law | A Glonk's HPS Blog

  2. Hi Dom,

    I’ve only just got here, so any hits you’ve previously received from this side of the world are down to your own brilliance and nose for an interesting topic. I’ve a few scrambled thoughts on this but nothing very substantial: I’m also trying to get a handle on Bowman v. Monsanto atm. It’d be worth looking back at Shabnam Anvar’s piece in that MPIWG Living Properties volume that I’m sure I gave you a copy of at some point, “INTRODUCTION TO “PLANT VARIETY PRODUCT LICENSING” AND ITS IMPACT ON PLANT BREEDING AND PLANT INTELLECTUAL PROPERTY RIGHTS (PIPR)”. Her thesis covers the same ground in more detail but i’m not sure if it’s been translated into English yet. Niels Louwaars also has some interesting thoughts on the relationship between what he calls formal and informal seed systems, and the impact of IP on publicly funded plant breeding work. Two other thoughts: DUS is, of course, arbitrary and what counts as D or U or S for any given variety boils down to scientific expertise around that variety, so there is a way out. Secondly; traceability might be a bigger problem for plant breeders (especially those working with wild germplasm) than it first appears. (Allegedly) There’s a lot of piracy in the industry, and much of this comes down to stuff people bring back in their suitcases or ‘borrow’ from other laboratories. It would be fascinating to work through a bunch of UPOV fillings and see how many include references to ‘unknown variety’ in the parentage…. As I say just a few scrambled thoughts, I’m really enjoying this new line of research and am keen to see where it takes you. BTW: cats are easy http://researchcentered.wordpress.com/2011/09/23/advanced-faculty-wrangling-techniques/

    • Well that was an easy comment to approve! Cheers for all these, I’ll hunt them down. That would be a very good exercise, as would seeing if important germ lines match their genetic and historical descriptions, and seeing how much variation they carry across a country that’s grown them for a while (preferably a massive one, not a pokey one like the UK). Anyway, thanks again, see you in a couple of months.

  3. Pingback: Environment roundup - Overlawyered

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