by Hope Shand | 28 Oct 1994

Hope Shand

As Seedling goes to press, the Clinton Administration is about to sign a bill amending the 1970 Plant Variety Protection Act. The bill, which just passed through Congress, will make it illegal for American farmers to save and sell seeds from proprietary crop varieties without permission from breeders and the payment of a royalty. It is also the precondition for the US to ratify the new UPOV Convention, as revised in 1991. Industry's ruthless campaign against farmers ' rights to freely save seed in the United States, and the tough struggle NGOs and farming families are caught in to defend diversity in the American seed economy, is best exemplified by the now-famous “Winterboer case”. We asked Ms. Hope Shand of RAFI (Rural Advancement Foundation International) to report on these battles from home. RAFI has been working vigorously to defend farmers ' rights in the US in concert with farmers ' organisations, grassroots seed saving programmes and environmental groups.


After years of intense lobbying by the corporate seed industry, the U.S. Congress delivered a crushing blow to farmers ' rights in August, 1994 when it passed legislation to restrict the “farmer's exemption” under the U.S. Plant Variety Protection Act (the U.S. equivalent of plant breeders ' rights). While U.S. farmers are still allowed to save seed for re-planting on their own farm, the newly amended law — once signed by the Administration — will eliminate the traditional right of farmers to sell harvested seed (for reproductive purposes) to their farm neighbours without having to pay royalties or ask permission. The legislation also makes the United States the first nation to ratify The Union of Protection of New Plant Varieties (UPOV) under its revised 1991 Convention.

The farmers ' exemption was a prominent feature of the U.S. Plant Variety Protection Act. The fundamental right of farmers to save and sell harvested seed was so important that the explicit assurance of this right was part of the bargain made to gain passage of the original plant breeders ' rights legislation back in 1970.

But times have changed. For one thing, there has been tremendous consolidation in the US seed industry. Plant breeding and seed sales are now dominated by multinational agrochemical and pharmaceutical corporations. These companies now refer to the farmer's right to save seed as the “farmer's privilege” — a privilege they have lobbied aggressively to revoke through both legislative and judicial means.

“Brown bagging” — the practice of farmers re-selling proprietary seed from their harvest in plain brown paper bags — has become widespread in some areas of the United States for certain open-pollinated crops. This includes wheat, soybean, cotton and canola (oilseed rape). The seed industry argues that brown-bagging infringes on their proprietary rights and unfairly deprives them of the profits from their research and investment.

There is little doubt that the seed industry has a problem, and may suffer losses in some niche markets. Competition from brown-baggers became so intense in hard red winter wheat, for instance, that Pioneer Hi-bred abandoned its breeding efforts in this area in 1990. The world's number one commercial seed outfit claimed that only 8% of US acreage sown to its Pioneer 2157 wheat was under purchased seed. The bulk was sown to farmer-saved or farmer-to-farmer traded seed. Since Pioneer maintained the sole breeding programme for this crop in the entire country — both the public and private sectors — it means that farmers growing red winter wheat may not have access to improved seed in the future. This example illustrates the vulnerability and dependence of an agricultural system where public breeding programmes are in rapid decline and there is over-reliance on private-sector, proprietary breeding.

Legislation to restrict this farmer's right, and ratify UPOV 1991, was overwhelmingly supported by the seed industry and the Clinton Administration. Many major farm organisations and commodity groups were not well informed or did not comment at public hearings on the legislation. At hearings held in September, 1993 and May, 1994 RAFI urged members of Congress to oppose ratification of UPOV 1991, to re-examine the Plant Variety Protection Act within a broader context, and to carefully consider the implications of plant intellectual property rights for farmers, plant breeding and germplasm activities, and future access to and exchange of plant genetic resources, in the U.S. and internationally.

Last May, RAFI warned the U.S. Congress that attempts to restrict the farmer's exemption would eventually lead to a total elimination of the farmer's right to save seed:

The seed industry acknowledges that it is both the practice of brown-bagging proprietary seeds, as well as farmers saving their seed for re-planting on their own holdings, that erodes seed industry sales. If it becomes illegal for farmers to sell proprietary seed to their neighbor, will the seed industry return to Congress a year or two from now to argue that the real infringement is due to farmers saving their own seed for re-planting?

 It is important to point out that the newly revised UPOV treaty makes it optional for member countries to allow farmers to save seed for planting on their own holdings. If the U.S. Congress ratifies the new UPOV Treaty we believe that this option leaves the door wide open for a future ban on all farm-saved seed.

At the same hearing, the National Farmers Union also pointed out that, despite the seed industry's claims of economic hardship, there was little evidence that these giant corporations are really suffering from farmer-to-farmer seed sales:

The multinational seed companies seem to be doing quite well. A few of them have enough profit to buy out their competitors and further concentrate the industry into the hands of a few. This concentration could lead to fewer varieties provided to growers and higher seed costs. Limited varieties can mean less tolerance to pests and disease and less climatic adaptability.

 There is no guarantee that the seed trade will continue to willingly provide a broad range of seed varieties which can be grown in abundance in the many diverse areas of the world. It would be more attractive for the companies to limit the varieties for profit. Those who would suffer from these limits would be family farmers world-wide who would see their costs increase and their seed choices decrease.

Lessons from the U.S. experience

In the end, NGO and farmer opposition had little impact in the U.S. Congress and the seed industry prevailed. But the U.S. experience offers some valuable lessons to other NGOs and sovereign states who are working to oppose greater monopoly control over seeds.

The pattern is a familiar one. History shows that every time plant intellectual property laws are amended it expands the scope of protection and the rights of corporate breeders at the expense of farmers, diversity and society. UPOV 1991, for example, extends the coverage of protection to all plant species and kinds, extends the scope of protection to all material of the variety, and it increases the term of protection to a minimum of 20 years. It also gives breeders greater monopoly control over seeds because it removes the rights of farmers to re-plant proprietary seed from their harvest unless individual governments reinstate them.

Now that the United States is about to become the first nation to ratify UPOV 1991, there will be growing pressure for other countries to follow the lead in adopting UPOV 1991. Will UPOV 1991 become the new standard pushed by the industrialised North as the"effective" sui generis system for protection of plant varieties as mandated by GATT/TRIPs? The U.S. precedent in ratifying UPOV 1991 signals the urgency for other governments to develop alternative sui generis national legislation that is both pro-farmer and pro-diversity.

The Asgrow vs. Winterboer Case

The legal right of U.S. farmers to sell proprietary seed harvested on their land may also be decided in the United States Supreme Court. Oral arguments will be heard on 7 November 1994 in the case of Asgrow vs. Winterboer, but a final decision is not expected for several months.

In recent years, major seed corporations such as Asgrow (a subsidiary of Upjohn Pharmaceutical) and Pioneer-Hi-bred have brought lawsuits against dozens of farmers for the practice of “brown bagging” proprietary seed protected under plant breeders ' rights legislation (the U.S. Plant Variety Protection Act). Most of the farmers who faced costly legal battles with large corporations either surrendered their rights or settled out of court. But farmers Becky and Denny Winterboer of Milford, Iowa decided to fight back. “We think what the seed industry really wants is to eliminate the right of farmers to save back seed altogether, even for their own land,” explains Becky Winterboer. The U.S. Court of Appeals for the the Federal Circuit in Washington, D.C. decided in favor of the Winterboer family in 1993, but Upjohn appealed the case to the U.S. Supreme Court.

The U.S.-based office of RAFI, joined by a coalition of eight U.S. farm and environmental organisations recently submitted a “friends-of-the-court” (amici curiae) brief to the U.S. Supreme Court in support of the Winterboers, and the “farmer's exemption” under the Plant Variety Protection Act. The groups who joined RAFI include: Seed Savers Exchange (Decorah, Iowa); Native Seeds/SEARCH (Tucson, Arizona); Abundant Life Seed Foundation (Port Townsend, Washington); Center for Rural Affairs (Walthill, Nebraska); Friends of the Earth (Washington, D.C); Institute for Agriculture and Trade Policy (Minneapolis, Minnesota); Minnesota Safe Food Link (Minneapolis, Minnesota); and Washington Biotechnology Action Council (Seattle, Washington). The amici brief was filed by David C. Masselli and Tracy Ann Roman of Masselli & Lane, P.C., who provided free legal assistance to the non-profit farm and environmental groups.

The amici curiae brief argues that the U.S. Congress fully intended to curb the monopoly power of corporate seed breeders by including an exemption for farmers. It also points out that plant varieties are distinct from other kind of “inventions” because no plant breeder starts from scratch in developing a new variety. Historically, U.S. farmers played a major role in contributing to the introduction and further development of exotic germplasm. America's farmers undertook countless “experiments” and, through mass selection, developed literally tens of thousands of novel and unique plant varieties.

In the late 1800s, for example, the U.S. Department of Agriculture actively encouraged American farmers to become selectors, breeders and multipliers of seed by establishing a free seed distribution programme. The U.S. government's distribution of free seed packages to farmers increased from about 306,000 in 1862 to a high of over 20 million in 1897. It was the farmers ' success in selecting and breeding these crops that helped to build the agricultural base of the United States. Farmer-bred and selected varieties became the backbone of and raw material for the emergence of public and later private plant breeding programmes.

Given the historic role of generations of farmers and public sector breeders in contributing to the development of improved germplasm, the brief argues that a limit must be maintained on the ability of corporate plant breeders to obtain monopoly control over varieties protected by plant breeders ' rights. Congress intended that a balance be maintained between the rights of corporate plant breeders and the rights of farmers when it passed the PVPA in 1970. The brief concludes:

This Court's interpretation of the farmer's exemption is of central importance in the ongoing struggle over who will control the food supply of the nation and the world. Until recently, control over the food supply has been disbursed among a multitude of farmers; now, however, seed developers seek to subjugate the rights of farmers in favor of large corporate interests. ...This Court should uphold the intent of Congress and affirm the right of farmers embodied in the farmer's exemption to save, sell, and swap seed.

In light of the recent legislation passed in the U.S. Congress to outlaw the farmers ' right to sell farm-saved seed, nobody knows for sure how the Supreme Court's decision may affect farmers ' rights under the Plant Variety Protection Act. If the Court decides in favor of the Winterboers, their decision may affect the right of farmers to sell proprietary seed only for those varieties that received patent-like protection prior to the new law being enacted. On the other hand, one lawyer will argue before the Supreme Court that the entire system of plant breeders ' rights in the United States is unconstitutional. Should the Court agree with that interpretation, it could have a far-reaching impact.


Testimony of Hope Shand, RAFI, before the U.S. Congress, September 20, 1993 (Senate Agriculture Subcommittee) and May 24, 1994 (House Agriculture Subcommittee.)

Testimony of Allen Richard, National Farmers Union, before the U.S. Congress, (House Agriculture Subcommittee), May 24, 1994.

Cary Fowler, Unnatural Selection: Technology, Politics, Law and the Rationalization of Plant Evolution , Gordon and Breach Science Publishers, New York, 1994.

Brief Amici Curiae of Rural Advancement Foundation International (and others) in Support of the Respondents, Asgrow v. Winterboer, No. 92-2038 in the Supreme Court of the United States, October Term, 1994, submitted by David Charles Masselli and Tracy Ann Roman, Masselli & Lane, P.C.

Hope Shand can be contacted at: RAFI-USA, P.O. Box 655, Pittsboro, NC 27312, U.S.A. Tel: (1-919) 542.13.96. Fax: (1-919) 542.06.69. Email: [email protected]

Author: Hope Shand