Port Townsend, Washington, USA
June 17, 2022
Organic Seed Alliance (OSA) submitted detailed comments and recommendations this week to the U.S. Department of Agriculture (USDA) in response to the agency’s inquiry into competition concerns in the seed industry and the role of intellectual property rights (IPR). Joining OSA in submitting these comments is the Rural Advancement Foundation International-USA (RAFI-USA), based in Pittsboro, North Carolina.
Three months ago, the USDA launched an inquiry asking for public comments on competition concerns in the seed industry, especially as they relate to intellectual property rights (IPR). The agency is examining impacts on farmers, plant breeders, independent seed companies, tribal members and other historically underserved growers, as well as society at large. This inquiry stems from President Biden’s July 2021 executive order on promoting competition across the American economy. The comment deadline closed on June 15.
The seed industry is one of the most consolidated sectors in agriculture: Four companies, all with roots in the agrochemical industry, now control over 60 percent of the global commercial market.
OSA Advocacy Director Kiki Hubbard said, “This level of concentrated market power increases prices, limits choice in the marketplace, squeezes out competitors, and makes our seed supply – and thus food supply – less secure. As funding for public plant breeding decreases, and more independent seed companies are acquired or vanish, seed is increasingly in the hands of corporations that put profit before people and the planet.”
The USDA’s inquiry is examining impacts of market consolidation and IPR on historically underserved growers, including tribal communities. Some of these communities are navigating the current IPR system with the goal of protecting culturally important seed from corporate appropriation while identifying strategies for ensuring these varieties can continue to co-evolve with their communities in perpetuity. The IPR system is difficult to navigate unless you are a multinational company with a legal team leading this work.
Furthermore, seeds are unique from other agricultural input markets, such as fertilizers and agrochemicals, since they are a living resource. Seeds are not manufactured in a facility but represent generations of natural evolution both alongside and in absence of human intervention. In this way, grower decisions pertaining to seed are not only economical, but also ethical and cultural. The cultural heritage of our seed supply makes ownership claims via IPR that much more fraught when considering the history of appropriation – stolen land and seeds.
The USDA’s inquiry is also examining underserved markets, including organic. Organic seed represents the first link in the organic supply chain, serving as the foundation of organic integrity from seed to plate. The benefits that organic agriculture provides to ecosystem health and rural economies are well documented. However, to be successful, organic growers need access to seed adapted to their farms, practices, and specific markets, and market consolidation and seed privatization have contributed to slow growth in the organic seed supply.
Patents are broad and can cover the plant, seed, future generations, crosses with other varieties, the methods used to produce a variety – and even individual, naturally occurring traits. Owners of utility patents on seed have far-reaching control over access and use of their protected seed and commonly restrict breeding, research, and seed saving – the very practice that established the diversity of domesticated food crops we enjoy today.
“Consolidation in the seed industry, in concert with the existing seed IP legal and regulatory framework, has resulted in a situation that has many parallels to the ways that contract poultry farmers are mistreated,” said Margaret Krome-Lukens, policy director for RAFI-USA. “In both cases farmers are dealing with bearing the bulk of financial liability, micromanagement from companies, information asymmetry, and legal and financial intimidation.”
OSA’s comments list dozens of recommendations for the agency to consider. A few overarching priorities include:
- The impacts of the current IPR system should be fully examined and reformed, and only protections that promote fairness, healthy competition, and serve the public good should be used for developments in seed. Regardless of the IPR tool or strategy, U.S. policy must protect one’s right to save seed, breed new varieties, and research protected plants and genetic traits.
- Patent law should be reformed to exclude living organisms, including seeds, plant varieties, and genetic traits. The Plant Variety Protection Act should serve as the strongest form of IPR protection associated with seed and the seed-saving and research exemptions in the law must be honored.
- Antitrust laws and policies should be updated and more strongly enforced to avoid monopoly power, break up anticompetitive mergers, and examine unjust industry conduct, such as unfair contracts tied to seed purchases.
- Publicly funded research should not be sold to the highest bidder and privatized. The 1980 Bayh-Dole Act should be reformed to exclude IPR on public research that is essential to food security, including seed.
Read OSA’s full comments here and a summary signed by additional organizations here.
Organic Seed Alliance is a 501(c)(3) nonprofit that advances ethical seed solutions to meet food and farming needs in a changing world. Our work ensures an abundant and diverse supply of ecologically grown seed, tended in perpetuity by skilled and diverse communities of seed stewards. To advance this mission, we serve growers working with seed across the U.S. through participatory research, practical education, policy advocacy, and network development.
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