Background Papers
Regulatory aspects of seed security
Summary
Seed security is a complex concept, which deals with both the sustainability of seed supply and with (preparedness for) emergency seed provision after disaster. Regulations are in place in many countries in order to support the development of a formal seed system. These include seed laws (seed councils, variety release and seed certification), phytosanitary laws and intellectual property rights systems. Since most farmers in developing countries depend on farm saved and locally obtained seeds more and more organisations deal with supporting such diversified seed systems. It is important from a seed security perspective that regulations do not unnecessarily interfere with these local seed systems.Secondly, when a natural or man-made disaster strikes a particular region, seed is increasingly often included in emergency packages that follow (or replace) food aid. The regulations may hinder both procurement and distribution of locally adapted seeds.This paper intends to present an overview of the regulatory issues involved in seed security programmes and suggests measures to support the development of regulations that support seed security both at a national and a regional level.
1. Introduction
1.1 Seed systems
Seed is a vital input in crop production. In any kind of agriculture, seeds and vegetative planting materials are a basic input. The seed carries the physiological basis for vigorous crop development, and the genetic basis for the adaptation of the crop to both growing conditions and product preferences. Seed and the accompanying knowledge systems are valued in all farming communities as a major cultural element. Ever since seed is considered an important vehicle to extend intensified production techniques in developing countries, the supply system has received considerable attention. These formal systems, designed along the lines of western organisation patterns of seed supply, have replaced the age-old local seed supply systems in particular regions and crops. Limitations of these systems have led to the development of the concept of integrated seed supply (Louwaars 1994).
The two basic seed supply systems are broadly defined as: Formal seed supply: "the chain of activities from breeding to marketing/distribution, run by specialised 'seedsmen' and supported by well defined rules and procedures, that supplies seeds to farmers with some level of quality guarantee. These systems are rather uniform in time and space." Thomson (1979) and Wellving (1984) have described the formal system in some detail. Local seed supply: "activities within the farming community that aim at ensuring the availability of seed for the next planting. These systems are heterogeneous in space and flexible in time." Local seed supply systems have been summarised and discussed by Almekinders (et al, 1994). The objective of both systems is to make sufficient quantities of seed of optimum quality available for each planting season.
A major factor, distinguishing formal and local seed supply is that the former is vertically organised, whereas the latter system can be considered horizontal or cyclic. In formal seed supply, activities follow each other. This system is rightfully compared with a chain. The main links are plant breeding, seed multiplication and seed distribution. Since a chain is as strong as its weakest link, these links have to be developed in harmony with each other. There is no point in producing large quantities of seed without a well-developed distribution system; an efficient seed production and marketing system cannot survive without the regular supply of new varieties and breeder's seed.
Local seed supply consists of basically the same components: selection, production and diffusion but contrary to the vertically organised formal systems, they are in most cases part of common crop production and as such organised in a horizontal manner. Seed production is the focal point here; selection and diffusion are not necessarily given the same emphasis every seed production cycle. The horizontal pattern of local seed supply systems seems to imply that they are more sustainable. The formal seed system is important for a very limited number of crops in developing countries. Public formal systems commonly deal with the most important (field) crops only, such as rice, wheat, maize, cowpeas. Commercial formal seed systems concentrate on high value seeds such as (hybrid) maize, pearl millet (India) and vegetable seeds. Local seed supply caters for over 90% of the total seed need in almost every developing country. A typical aspect of local seed systems is that they may maintain a wide diversity within and among varieties or landraces as a response to diverse ecosystems and local markets. Formal systems can by the very nature of centralised organisation carry only one or few varieties. Genetic resource specialists have started to gain an interest in supporting local seed systems as part of their in situ strategies for the conservation of agro-biodiversity. Heterogeneous farming conditions both in space and time are likely to result in heterogeneous populations of a crop. Especially in such conditions, landraces provide a balance between high yield potential and high yield security.
Especially in (near) subsistence farming systems where seed security is likely to be challenged regularly, the local system is the predominant supplier of seeds.
1.2 The choice of varieties
The farmer's choice to grow certain crops and particular varieties of these crops is based on a complex set of decisions. These are based on needs and expectations of the individual, the farm household and the community. The needs can be summarised as economic and cultural. The expectations are basically the level at which consumption of the household should be met with regard to food, feed and fibre on the one hand, and the market expectations for surpluses or crops grown particularly for the market on the other. The ecological conditions in the farming system form the bottom line for crop production. A good understanding of the choices that farmers make with regard to varieties is very important both in seed system support and in emergency seed provision.
Economic Aspects
The choice of crops depend on such considerations as: should a farmer produce most of the products that the household requires or can he afford to concentrate on market production and subsequent market purchases for agricultural products. This issue is linked with attainable yield and with differences in risk that farmers may accept and with product quality. Yield depends mainly on ecological and farm management factors, combined with the way that the crop may respond to such factors (see 'ecological aspects' below). Varieties have to fit in the farming system, where particular crops have multiple uses. Modern varieties are often bred with a very limited number of objectives, concentrating on grain yield and its components, such as harvest index and stress tolerance/resistance. In most cereal based farming systems in the WANA region, for example, plant and animal production are integrated. Straw yield and straw quality may in many cases be at least as important as grain yield. Short straw varieties bred for a high harvest index, may thus not become very popular. Risk is a factor that is often overlooked in formal research, but a major factor for many farmers, especially those farming in ecologically marginal conditions. When farming is carried out mostly for subsistence, farmers can not afford to take risks without jeopardising the mere existence of those depending on him. In the choice of varieties considerations of risk may prevail over yield expectations, which could be an explanation of less than expected adoption of new varieties in many regions of the world. Uniform and so-called high yielding varieties that exhibit a higher variation in yield between years may not be useful for such farmers even when average yields over a large number of years are proven for these conditions.
Cultural Aspects
Apart from purely economic aspects, also cultural aspects play a role in the choice of varieties. Old varieties are considered a cultural heritage by many communities and grown 'out of tradition'. The varieties, grown and selected by many generations are then to be considered an important aspect of the cultural identity of the farmer. A more practical aspect of culture in variety choice is the sometimes very locality-specific consumption values that crops have to meet. Often farmers produce modern varieties for sales in the market alongside local varieties for home consumption. Finally, local post harvest and processing methods may have an important influence on the choice of varieties. Because food processing is in most cases a woman's job, this introduces an important gender aspect in the choice of varieties.
Ecological aspects
The response of varieties to ecological factors and in particular the abiotic and biotic stresses determine the output with regard to both yield and quality factors of the product. Crops differ in the genotype x environment interaction for important traits like yield, but a generalised observation is that every variety has a limited range of adaptation. This range can be geographically impressive, such as the use of the same potato varieties in North Africa, Eastern Europe and highland tropical areas, but in other cases, varieties are confined to very geographically limited ecological niches. Apart from naturally occurring ecological conditions farmer-influenced conditions play an important role. In high-input agriculture, various ecological stresses can be overruled (e.g. irrigation, fertiliser application), thus adapting the ecology to the needs of the crop and its particular varieties. This results in 'wide' geographic adaptation, which is a very different concept as wide ecological adaptation. In low-input agriculture in marginal ecologies, the varieties have to adapt to the prevailing conditions. This illustrates the need for large numbers of location specific varieties in geographic regions of limited size. An important concept in this respect is agrodiversity (Almekinders et al, 1995). This concept combines ecological diversity, diversity in farm management aspects, and genetic diversity, including their interactions at different system levels. In the context of this study this means that genetic diversity (between and/or within) varieties in a particular farming system depends on the level of diversity in ecology and farming practices within the farming system, and on higher and lower level system levels.
A good understanding of the choices that farmers make with regard to varieties is very important both in seed system support and in emergency seed provision. Supporting or supplying the wrong variety is very counterproductive.
1.3 Seed security
Definition
Seed security can be defined as:
The sustained ability of all farmers to have sufficient quantities of the desired types of seed at the right time. This definition includes a number of important parameters:
- Quantity
- Quality (desired types)
- Timing
- Finance ('ability to have')
- Equity ('all farmers')
- SustainabilityThis definition is farmer-centred and not based on issues like national food security or rural development. The political will to assist farmers to increase their seed security, however, may be based on considerations of national food security or equity. It is however remarkable that literature on national food security strategies generally does not elaborate on seed supply (Anon., 1992; Hjort af Ornaas, 1992; Malambo, 1988; Sahn, 1989).
Seed security has always been a basic and continuous concern for farmers throughout the world. It becomes an issue for a wider audience only when seed is in general short supply due to 'unforeseen circumstances' at such a scale that it threatens agricultural production. The most striking examples of such 'circumstances' are:
* Ecological disaster;
* War situations, often combined with massive displacement of farmers,
* Disruption of the supply of seed from the formal sector to seed-dependent farmers.Next to these obvious examples causing large scale seed insecurity there may be less obvious cases of seed insecurity at a smaller scale: Sperling et al. (1993) call the poorest bean farmers in Rwanda "chronically seed insecure" because they normally have to eat their stocks of food grain and seed beans and have to rely on whatever beans are available in the market at the time of planting. Such poverty induced seed insecurity is also widely experienced when relatively poor farmers have sudden expenses due to for example a disease in the family. These farmers can be considered 'acutely seed insecure'.
In both these cases of chronic and acute seed insecurity, individual farmers are likely to be able to acquire something to use as seed. This may be poor quality grain even though seed of acceptable quality may be available, but the farmers no not have the capacity to acquire it. Their seed insecurity thus concentrates on seed quality aspects rather than available quantities. Seed security can be analysed at different system levels: household seed security, and community, national and regional seed security.
Sustainable seed systems
The basic requirement for seed security in most conditions is the existence of sustainable seed systems. In most cases these are well functioning local seed systems, based on farmer selection and distribution within the community. National seed stocks and regional preparedness programmes are valuable and necessary, but basically only additional to a well functioning local seed system. In industrialised country agriculture, however, seed security is obtained through well functioning formal seed systems guaranteeing a regular supply of seed of acceptable quality to farmers. In many developing countries, however, public and emerging private seed suppliers are not always able to guarantee supply both in terms of quantity, quality and timeliness of supply. Seed insecurity due to disruption of the supply by the formal seed sector is a concern for hybrid seed and exotic vegetable seed users in particular, and more specifically for small scale farmers in remote areas using this type of seed. These are the first to be affected when available seed quantities are lower than usual. This can happen either as a result of poor domestic seed yields or of drastic changes in seed policy, such as sudden import restrictions. Seed security is generally best served by a diversified seed system, whereby the local and formal systems are well integrated. Current 'small seed enterprise development' efforts greatly support this diversification.
Emergency seed provision
Where the existing seed systems fail to supply sufficient quantities of seed, e.g. during or after war or ecological disaster, emergency seed provision can be part of relief operations. Quite often, seeds are only a small part of emergency relief programmes and the specific qualities of seed are often insufficiently acknowledged. The main issues are:
* When seed is brought in from outside the region, chances are that the genetic quality is poor, i.e. the variety may not be adapted to the growing conditions resulting in poor yields, or to the socio-economic conditions resulting in rejection of the produce. An example of the latter is the supply of yellow maize in Kenya, which was contrary to the locally used white maize not acceptable by many for human consumption.
* When seed is obtained locally, e.g. by purchasing the last stocks of food, the seed quality may be poor, resulting in poor germination, high levels of disease infection and weeds.
Seed security can be analysed at different system levels: household seed security, and community, national and regional seed security. Action to alleviate seed insecurity include seed system support and emergency seed provision.
1.4 Seed regulatory systems in developing countries
Where centralised seed production infrastructures were built to resemble the successful European and North American seed industry, external seed quality control institutions were developed to create a quality awareness with the seed producers and to safeguard the interests of farmers. The seed quality control institutions became the driving force behind the development of seed legislation. Their interest is based on the fact that a legal backing is needed when conflicts arise with seed producers or merchants.
In many countries these seed laws strongly resemble European regulatory systems, especially the English, French and Spanish in countries with colonial links with these countries. Such laws establish the institutional framework of national seed councils and certification agencies, and they regulate variety registration (release) and official seed certification. More recently, Plant Variety Protection (PVP) is being introduced in the regulatory system. Next to seed laws phytosanitary regulations and business laws may affect the seed system.
Seed council
Seed laws commonly regulate the tasks of a national seed board or council. The tasks are spelled out in rather general terms and basically include advising the Minister responsible for agriculture on all aspects relating to seeds, and overseeing the variety release and seed quality control systems. This offers a unique opportunity to arrange for all parties concerned to have a voice in the implementation of a seed law. Most national seed boards are however heavily dominated by representatives of the formal sector (in most cases even dominated by public servants). Research directors, heads of certification services and public seed enterprises may at best be complemented with a representative of a farmers' association and possibly with a representative of seed dealers or contract growers. The result commonly is slow and bureaucratic procedures for variety release and seed certification (see below) and little flexibility with regard to both emerging commercial seed producers and farmers that are best served by a diversified seed system. Having its roots in the formal seed sector, national seed boards are rarely directly involved in discussions on the conservation and use of agro-biodiversity. Being a national (!) seed board, seed security is commonly regarded at the national level, i.e. dealing with national security stocks and emergency provision of certified seed only.
Variety release
The variety release procedure generally has the following characteristics:
- Application with a formal variety release committee and variety registration, including a variety description;
- Testing for the value for cultivation and use (VCU) of the variety at different sites over a number of seasons, and possibly testing for distinctness, uniformity and stability (DUS); and
- Analysis of testing results by the committee, followed by formal release.
Variety release systems are meant to assist breeders in testing their materials in different ecological zones, and to protect the national agricultural system from introducing varieties with poor agronomic characteristics and poor produce quality. Secondly, the variety release system provides valuable information for seed producers and seed quality control agencies on the important distinguishing characteristics of the new variety. Thirdly, the variety is linked to (commonly one single) name, which makes the market more transparent. A uniform naming of varieties can assist the identification of sources of seed in emergency situations.
Most variety release procedures allow for only a very small number of new varieties to enter the formal seed production system, and where certification requirements for uniformity are strict, the system also restricts the development and introduction of genetically heterogeneous varieties. There are, however, cases of acceptance of non-homogeneous varieties.
The Case of a multiline wheat variety in the Netherlands
The co-operative seed company 'Zelder' bred a multiline variety of wheat in the Netherlands in the early 1980s. A multiline is a set of near homogeneous lines, differing for one trait, e.g. a resistance gene. This novelty put a lot of pressure on the Dutch variety release system. The variety was insufficiently uniform, and could thus not be released. Finally, the option was to register the constituting lines as separate varieties. The resistance to yellow rust of individual lines was below standard, so they would not pass a VCU test. When tested as a multiline, however, the variety was superior. This meant that the system had to be flexibly interpreted. A proper participation of all parties, resulted in a final acceptance of the variety. Commercially however it turned to be a flop. The breeding and release procedure caused the multiline variety to be outdated before it even appeared on the market. Maintaining the lines and producing the seed separately were too expensive. The variety's name 'Tumult' (Dutch for 'uproar') was well chosen: it has caused a lot of commotion in the regulatory system. Zelder seed company has not produced multiline varieties since then.
Seed quality control
Official seed quality control is a useful addition to all seed procedures and methods used in formal seed production and conditioning that are geared to maximising the different seed quality parameters. The generation system (pre-basic, basis, certified seed classes), and prescribed isolation distances are used to safeguard the genetic seed quality: the varietal identity and uniformity have to conform to the varietal description. Procedures for seed production agronomy and conditioning are needed to optimise physiological (germination, vigour), sanitary (seed transmitted diseases), and analytical (purity) seed quality. Seed certification checks on such procedures and methods through inspections, seed testing, and labelling. The basis of field inspection is that a variety has to be identifiable and that off types can be recognised in the seed production field. This commonly leads to rather strict uniformity requirements for new varieties, and very strict variety maintenance procedures that keep the variety true to its original description. The reason is that it is very difficult to identify the number of off type plants in a heterogeneous variety. Seed testing is done to establish various seed quality parameters of the seed lot. This requires careful sampling of the lot and standardised testing procedures that are reproducible. There are basically two ways in which seed testing results are used. Some countries have seed standards, which results in a rejection of seed that does not meet the standards. Other countries use the system of 'trueness to labelling', i.e. that the quality parameters are printed on the label and that the customer (farmer) can choose whether the quality is appropriate. Labelling is a basic requirement in a certification system: the label is used to identify each seed lot. It is used to control the varietal identity (the generation system) and to link the seed testing results with the total quantity of seed sampled. Furthermore it allows farmers to identify certified seed in the market.
Phytosanitary rules
Phytosanitary regulations are meant to avoid the introduction of new plant diseases and pests into a country (plant quarantine) and to avoid the spread of a disease in a country. Imported seeds and planting materials commonly have to be tested for the presence of diseases. This can be done either in the country of origin, which is then supported by a phytosanitary certificate, or imported plant materials have to be kept under quarantine conditions while it is tested for the presence of diseases and pests. Phytosanitary regulations may also prescribe a complete ban on the importation of particular seeds from prescribed countries.
Intellectual property and other rights over plant materials
In most countries, plant materials have been explicitly exempted from patent protection. The self-replicating aspect of plants is one of the reasons for the design of a special (‘sui generis’) system for protecting plant varieties. Also the fact that varieties cannot be described the way an industrial invention can be documented was the basis for what became the Plant Breeder’s Rights system, later called Plant Variety Protection (PVP). The third aspect is that a variety can be used for the development of a totally different variety. These biological aspects and existing (uncodified law) tradition of the free use of plant materials, led to adapted criteria (distinctness, uniformity, stability), a farmers’ privilege (free multiplication for own and non-commercial use), and a breeder’s exemption (any variety is free for further breeding) have been introduced. Intellectual property rights have however not entered the field of plant varieties in most countries that are likely to have seed security problems on a regular basis. Due to the TRIPs Agreement of WTO there however is a trend towards the spread of both Plant Breeder's Rights and patent rights on either varieties or on biotechnological inventions.
PVP means that the breeder or discoverer of a new variety receives the exclusive right over the commercialisation of the variety. This means that the holder of the right can exclude others from the production and marketing of propagating materials. He can also licence other producers, commonly against the payment of a royalty. PVP only deals with new varieties; these are varieties that have not been commercialised before a particular date (relative to the date of application for the rights) and are valid for a prescribed maximum period.
Patents on biotechnological inventions have entered the field of plant breeding in recent years. Patents are now granted in various countries on both methods to modify genomes and on novel or transplanted genes. A debate is ongoing about the ethics of protecting genetic constructs, and especially on the ethics of protecting naturally occurring genes. Furthermore the discussion focuses on the scope of protection. Where plant varieties may be exempted from patent protection under the TRIPs agreement, patents on genes may 'de facto' result in patent protected varieties. Such varieties, even though they may be protected by Plant Variety Protection, may not be freely available for further breeding anymore, and also the farmers' privilege may not be valid. This is a cause for considerable concern.
The International Undertaking on Plant Genetic Resources for Agriculture (IU) has introduced the concept of Farmers' Rights, and the Convention on Biological Diversity the concept of national sovereignty over plant genetic resources. These concepts introduce some kind of ownership by farmers, communities or nations over 'old' varieties, including non-uniform landraces and other genetic resources. The operation of these rights has not been fully agreed upon as yet (June 1998). Various options are possible. On one end of the spectrum is kind of intellectual property over particular genetic resources (which thus have to be identified) of which breeders can make use after 'prior informed consent' with the community or nation of origin. This consent can be given, for example in return for a share in the profit on the commercialisation of the end product (the variety or the medicine/chemical compound). This option resembles a conventional Intellectual Property Rights system. At the other end is the pooling of all plant materials in one global system in which governments or seed producers have access to genetic resources under the condition that a global fund is supplied with sufficient amounts of money to safeguard the (in situ) conservation of plant genetic resources.
Additional rules on the international movement of seed
Various countries have special regulations in their national laws that affect seed trade. Quite regularly, the exportation of seed is prohibited when the national demand for seed has not been met. Export permits have to be obtained from a special office of the Ministry of Agriculture next to standard business permits related with exports and currency control. Zimbabwe introduced a regulation that exported seed has to carry an International Orange Certificate. This certificate can only be issued by the official seed laboratory, which may take a long time. Other countries even prescribe that exported seed has to be certified, i.e. that only formally produced seed of nationally released varieties can be exported.
In many countries, either the Minister or the National Seed Council is allowed to reduce seed standards or any other regulation in time of emergency. This aspect is very important for large-scale emergency seed provision, but does not apply to necessary movements of seed on a smaller scale.
Seed supply is commonly regulated by seed and phytosanitary laws, intellectual property rights and business laws. This framework is designed for the regulation of formal seed supply. Knowledge of these regulations is necessary in order to avoid frustrations in seed security support activities.
2. Effects of variety release regulations on seed security
2.1 Variety release and diverse seed systems
It was noted above that variety release systems commonly restrict the number of varieties that enter the formal seed production system. There are also doubts about the value of the system for the correct selection of the optimal varieties for all farming systems in the country through such centralised testing.
Problems with the management of variety testing can be summarised under the headings Efficiency, Standards, Participation and Transparency (Tripp et al, 1996). Lack of efficiency includes both inappropriate site selection, and poor trial management. Poor trial management conceals actual differences among varieties, and as a result delay release due to the need for prolonged testing. In addition, trial management practices rarely represent common farmer agronomic practices. High input levels are commonly used as a matter of policy. Virk at al. (1996) report that average trial yields in the official 1989/1990 sorghum variety trials in India were three times the farmers' average yields (approx. 2800 kg/ha in trials against 900 kg/ha in farmers' fields). It may be doubted whether the trial results have any value to most farmers. Breeding is therefore still expected to target benign agro-ecological conditions only. Standards relate to the methods of trial layout, data collection and analysis. Most trials contain small plots, often with considerable border effects due to wide paths and other trial design matters, and in any case mono-cropping, even when farmers plant the crop in combination with others. Many variety trial stations are run by junior staff. They obtain precise instructions how to observe the characteristics of the crops. In some cases yield is the only important characteristic. In the best of cases diseases are screened, but these normally do not go further than marking presence or absence of a particular disease in the field. Quite often, characteristics that are extremely important for farmers are not taken into account, such as aptitude to intercropping, shattering (e.g. soybean), lodging when harvesting is delayed (e.g. maize), cooking time of the produce (e.g. beans). Breeding thus tends to concentrate on yield only without giving credit to the diverse needs of farmers.
Analysis of the trials is often done very objectively, i.e. using standard statistical analysis methods. The main complaint to this analysis is that many trials are pooled in one calculation. The variety having the highest average (!) yield is considered the best. This may, however, not be the very best variety in any of the testing sites. Standard variety release procedures rarely accept a variety that is specifically adapted to particular conditions. This explains the bias towards breeding for wide adaptation. On-farm variety trials are becoming more and more popular with variety release systems. This very positive development however hardly ever contributes to releasing more adapted varieties because such on-farm trials are either completely researcher managed (and thus similar to station trials), or the results cannot be easily analysed statistically. Especially the non-numerical comments by farmers are difficult to include in reports. Problems related to participation and transparency relate to the closed system that formal variety release often is. Parallel (demonstration) trials by the extension service, NGO's or private seed companies are rarely taken into account. Farmers are rarely well represented in the Variety Release Committee, or in the scrutiny of varieties in trials, thus leading to the very conservative trial designs and management.
Official variety release systems are geared to supplying varieties for the formal seed production system, which in turn produce seed for a market, i.e. for farmers that can afford to purchase (certified) seed. Variety release systems are not geared to selecting better varieties for remote and resource poor farmers, who may be served best with varieties that perform relatively well under low soil fertility and hazardous climatic conditions. Such farmers commonly value yield security more than high yield in good years. This way, variety release systems do not support resource poor farmers. The release system however may even counteract official rural development and biodiversity conservation objectives by affecting the direction of plant breeding towards the development of high yielding uniform varieties for benign agro-ecological conditions only. Since breeders are commonly rewarded on the basis of the number of officially released varieties, (participatory) plant breeding for more marginal conditions is often not taken seriously.
Strict variety release procedures reduce the number of varieties available to farmers, direct plant breeding to concentrate on high external input farming systems and do not contribute to the development of diversified seed systems.
2.2 Variety release and emergency seed provision
Variety release procedures recognise a limited number of uniform varieties that are particularly adapted to mono cropping in rather benign agro-ecological conditions. Farmers, especially those in more marginal conditions need a relatively wide choice of varieties and in most cases not the officially released varieties (see 1.2). Emergency situations, especially those due to ecological disaster, are more likely to occur in such marginal conditions. It is extremely important that seed of the right varieties is provided.
Most emergency assistance organisations do not have detailed knowledge about seed and their quality characteristics. Especially the variety aspect is a rather specialised one and since variety information is only available on the few released varieties, such organisations commonly purchase seed of these known varieties only. Where such varieties may not be suitable for marginal conditions, farmers may not be optimally assisted, or even worse, they may invest land and labour for a crop that is bound to fail. Seed of non-released varieties may not be available in sizeable quantities. Such seed may have to be purchased from individual farmers, which requires a very good understanding of ecological similarity between the seed purchasing area and the target area. Apart from the limited knowledge there may be a legal argument that forces emergency assistance organisations to procure seed of released varieties only. In many countries only seed of released varieties is allowed "in the market". Even where organisations may be sensitive to the needs of the farmers in a particular disaster struck area, there may be no way to purchase seed of locally preferred varieties legally.
In longer-term emergencies, relief organisations may like to produce seed of local varieties in a safe area such as a neighbouring country. If these countries apply their own rules strictly they cannot allow the bulking of such seed unless the varieties grown in the disaster struck area are formally released.
Even though variety release procedures may produce valuable information on the varietal reactions to different farming conditions, and will select varieties for benign farming conditions, restrictive release systems can severely limit the availability of seeds that would optimally support disaster struck farmers.
3. Effects of seed quality control regulations on seed security
3.1 Seed certification and diverse seed systems
Seed quality control produces very important information for farmers, such as germination capacity. Problems may arise however when certification is made compulsory by law. When all seed has to be certified the choice of seeds is limited to a small number of released and uniform varieties with the results described above. Also, the possibilities for farmers to legally obtain seeds from other sources than registered seed companies are reduced. A strict seed law prescribing "all seed in the market" to be certified in fact turns sale or exchange of seed among farmers illegal. This means that farmers or farmer groups are not allowed to specialise in seed production without requesting for field inspection, seed testing and using officially produced higher generation seed as a starting material. The consequences are that it is illegal to produce landrace seed for sale (because these varieties are not officially released and not sufficiently uniform for certification). It also means that the one or few official seed suppliers are protected from competition to quite a large extent. Small seed producers may very well be able to produce a acceptable quality at a lower price because of smaller transportation and over head costs.
In recent years several organisations have started to support small-scale seed production activities. The objectives vary from 'improving farm saved seed', 'stimulating the use of diverse landraces', to 'bottom-up commercialisation of seed production'. Such projects are commonly not challenged by a seed law in the initial stages. There is however cases whereby seed laws have been used to frustrate such development oriented activities. The NGO, ENDA-Zimbabwe for example, was not allowed to multiply open-pollinated maize seed for export to neighbouring Mozambique, because in Zimbabwe only hybrids were released and the seed could not be certified. Since it is quite difficult for an emerging local seed business to adhere to all certification procedures and rules form the very beginning, seed laws may be a serious barrier to new entrants to the seed business which could increase competition for the benefit of the customer (the farmer).
Seed certification can be useful for protecting economic farmers from purchasing poor quality seed. Compulsory seed certification can however negatively affect diverse seed systems.
3.2 Seed certification and emergency seed provision
Regulations stipulating that all seed has to be certified plays an important role in emergency seed provision. Governments often insist that emergency organisations purchase seed for their programmes from official sources. This means that certified seed of uniform varieties has to be transported over long distances and distributed to farmers that may commonly produce genetically heterogeneous crops. In many cases it would be much more effective to look for remaining stocks of seed (often small stocks of food grain), clean and test it for germination and re-distribute that in the same area.
Also the organisations in many cases prefer to purchase a uniform product in bulk, because the logistics of buying many small quantities from individuals (without official stamps and signatures on cash receipts) is too complicated and the accountability too difficult to monitor. This means that it is not always seed laws that force the distribution of un-adapted seed, but also the lack of emphasis laid on the seed component of an emergency operation.
Another setback may develop when seed of local varieties of a disaster-struck area are to be bulked in a neighbouring country. Since the seed may originate from a genebank (very small quantities), very good care has to be given to such multiplication. The formal seed producers may be best equiped to quickly multiply the seed and to maintain a reasonable quality, but since it is not supposed to propagate non-released (national!) varieties, they may not be in a position to assist.
Regulations may force relief organisations to procure certified seed for emergency seed distribution operations. This may not be in the best interest of the target farmers.
4. Effects of intellectual property rights
4.1 IPRs and diverse seed systems
Intellectual property rights are meant to stimulate commercial plant breeding. The rights conferred to the breeder may officially restrict the diffusion of varieties from farmer to farmer. As such Plant Variety Protection (PVP) restricts the free use of varieties by farmers, but the farmers’ privilege and the breeder’s exemption limit potential negative effects from a legal point of view. The effects of patents on biotechnological inventions may however be significantly stronger, especially where (patented) genes may be included in local varieties that are important to (near) subsistence farmers. Patent holders are however not likely to exercise their rights with such farmers but there is a potential risk.
PVP does not seriously restrict diverse seed systems as long as the farmer's privilege, relaxed uniformity standards and the breeder's exemption can be maintained. PVP does however support the commercialisation of plant breeding, possibly reducing public plant breeding for marginal areas and resource poor farmers.
4.2 IPRs on emergency seed provision
Intellectual property rights may cause certain problems when for example large quantities of grain have to be transformed into seed in emergency situations. The holder of the right may ask for the payment of royalties, and he may even have the right to stop it especially when seed is ‘produced’ in one country to relieve another. The reason for a breeder to do this may be to protect his licence holder, who may sell less certified seed as a result of the large-scale use of grain. More likely however, the breeder will allow the use of grain, but only by his licence holder. This means that the whole procurement operation may have to go through this person who may misuse his monopoly. PVP laws do however normally have an emergency clause in which a compulsory licence can be ordered. In all other situations, i.e. when seed of local non-protected varieties is purchased for distributed, IPR laws do not interfere.
5. Dealing with seed regulations in seed security programmes
5.1 Relief and development organisations
Seed support
Organisations that support farmers to increase their seed security through the strengthening of local seed systems operate within the sphere of the national seed regulatory framework. There have been cases that organisations have been hindered, such as through the rule in Zimbabwe that open pollinated maize varieties are not to be multiplied and sold. Less strong but still damaging is the situation in several countries that ‘informal’ seed programmes do not have access to the seed technology knowledge and facilities of the formal system, such as well-equipped seed laboratories. It is therefore important for NGO’s and farmer groups to know the existing laws relating to seeds in a country. If it is not possible to act accordingly one has the option to just go ahead under the assumption that the legislator will not interfere as long as the local activities do not interfere with the formal seed markets. This is commonly so, but especially when an initiative becomes successful, opposition may grow.
Another alternative is to co-operate from the start with the formal institutions such as a national seed certification authority. Depending on a liberal interpretation of existing laws these can play a very positive role. An example is the role of the Seed Control and Certification Authority in Zambia, which assumed a role of supporter and co-ordinator of local seed system initiatives. Knowledge about seed production and technology are to be made available to informal groups as are the official seed testing facilities.
Emergency seed provision operations
Emergency production and distribution may be officially restricted. In disaster struck areas the legislator is, however, not likely to interfere either with or without an official emergency clause in the law. When not a whole country is affected by a disaster there may be strong pressure to purchase and distribute certified seed only. When seed has to be obtained in another country, problems may be even bigger. The exporting country may not have a good reason to interpret its own seed law pragmatically (because the disaster is not within its borders), thus forcing relief organisations to purchase certified seed. Secondly, even when non-certified seed can be obtained, the exporting country may still put seed quality and phytosanitary restrictions on the seed (which are more logically imposed by the importing country, but export restrictions are included in many national seed laws). Phytosanitary tests may seriously delay the purchase and distribution operations. Finally there may be business restrictions on seed exports; several countries have included a clause that restricts seed exports when the local demand is not fully met. So apart from the rather difficult issue of ‘purchasing the good seed for the target group’ there may be legal barriers to take. During a long term problems it is very useful to bulk local varieties from the affected area in a safe place (often another country) in order to distribute it at the time that farmers are likely to get back to their land. This was done within the Seeds of Hope programme to support war affected farmers in Rwanda. Such actions do generally require a good co-operation with the authorities, because strictly spoken, this may be illegal.
5.2. National Governments
Making seed laws more flexible
Seed laws definitely serve a purpose. It would be too easy to abandon the idea of regulating seed supply, given the obstructions noted above. Improving the situation regarding seed laws has to start with a proper representation in the National Seed Councils. These bodies could have a very positive effect in balancing flexibility and rigour in procedures and standards. A good basis would be to appoint at least 50% of the representatives of non-governmental organisations (farmers associations, private seed producers, dealers, importers, etc.).
Compulsory variety release systems could be transformed to variety information systems, whereby the emphasis is changed from the release decision to the testing of both new and local varieties. This means that variety testing is to be intensified wherever possible by co-ordinating all different sources of information: official VCU-tests, and also seed company, development organisation and farmers’ experiences. An evaluation committee may extract statistical and non-statistical evidence of the performance of both new and existing varieties and landraces. The focus of the system has to be on publication of results, whereby farmers can choose for themselves how to use the information for their choice of varieties. The value of a variety testing system for seed security is illustrated by plans in Eritrea to systematically test materials from sources that could be useful in times of emergency. In this approach, the variety testing system is an important tool for disaster preparedness. Such activities may even contribute to the development of regional ‘variety maps’ which could be used in a Geographic Information system (GIS). Such GIS-linked variety informatio system could be very useful to identify seed sources in case of emergency. It could as a start be used to identify materials that could be included in disaster preparedness variety trials.
Seed certification systems have to be customer-oriented, i.e. those quality characteristics that really matter have to be prioritised, not those that are prescribed by a regulation. This basically means a voluntary system, whereby the facilities (inspection, seed testing) can be used by anyone producing seed. There has to be a tight control though on the use of official labels, and a strong information campaign about the meaning of the certification label. This way the certification agency has to prove its value. The uniformity requirement for certification may be relaxed through the wider use of the ‘commercial seed label’. A draft seed law in Eritrea includes such a label reading ‘produced from . . . (landrace name)’ as an official designation. A draft seed law in Yemen contains a definition of the word ‘seed’ which excludes all farm produced and marketed seed from the rather strict regulations that are designed to guarantee the varietal identity and uniformity of formally produced and labelled seed. The bottom line is that not more should be regulated than what is strictly necessary. Both these solutions are within the boundaries of the OECD Seed Schemes that have been designed for the promotion of international seed trade.
An important support from a seed quality control agency to seed security initiatives is putting the facilities for seed testing and the specialised seed technological knowledge of its staff at the disposal of organisations and communities that want to improve their seed security situation (seed banking, local seed support initiatives). The Zambian plan to make the Seed Certification and Control Services a service point for all seed initiatives is highly commendable in this respect.
Finally, most countries have included an ‘escape clause’, in which the Minister may alter standards and allow other procedures in case of emergency. A survey in the West Asia, North Africa region (Louwaars, 1995) made clear that in virtually all countries such a clause exists, but that it is hardly ever used, despite regular emergency situations. In order to be effective, the Minister may be able and willing to act quickly when needed and not be bound to the prior advice from the National Seed Council, which may meet only once or twice a year. It is better even to leave enough room for emergency actions in the mainframe of the law to avoid undue delay of decisions.
Adapting intellectual property laws
Intellectual property rights do serve a purpose in the promotion of investments in private R&D. IPRs are a contract between society and the inventor. Common practice in the patent system is, however, more and more a struggle between competitors rather than a reward for an invention. IPRs have to assist in voiding monopolies that may distort free trade. Furthermore, IPRs in the field of plant varieties have to safeguard the non-codified rights of farmers to multiply seed of any variety for their own use and in the case of primary food crops for local diffusion. It may be understood that for export crops, countries are likely to win by granting a comprehensive type of IPR (e.g. flowers). This does mean however, that private investment in plant breeding of these crops will be very limited and that a publicly financed plant breeding will have to be maintained in many countries.
Protection of landraces through a PVP or other patent-like system does not seem useful. Landraces have been developed by generations of farmers/selectors, an it would not be sensible to protect these for a mere 20 or 25 years (as in PVP). Also, because of the necessity for protected subject matter to be identified, it would have to ‘freeze’ a landrace into a description. It seems more sensible to offer prizes to farmers or farmer groups who develop an "improved landrace" by further adapting it to the farming system. In the design of implementation rules of the IU and CBD, one should be extremely careful not to restrict the availability of genetic resources for both formal and informal crop development.
Making phytosanitary laws effective
Phytosanitary laws are important to avoid the importation of diseases and pests. As a result they have to be strict and implemented with optimum care. Especially in emergency situations, there is a risk of causing long term problems by introducing harmful organisms in order to quickly resolve short term ones. Phytosanitary regulations may however introduce additional bureaucracy, leading to delays or unnecessary destruction of seeds and planting materials. A further international harmonisation and a close contact between quarantine institutions will facilitate the acceptance of materials based on phytosanitary approval in the exporting country.
6. References
Almekinders, C.J.M., N.P. Louwaars & G. H. de Bruijn. 1994. Local seed systems and their importance for an improved seed supply in developing countries. Euphytica 78:207-216.
Louwaars, N.P., 1994. Integrated Seed Supply, a flexible approach. In: J. Hanson (Ed), Proceedings of the ILCA/ICARDA Research Planning Workshop held at ILCA, Addis Ababa, Ethiopia, 13-15 June 1994, pp 39-46
Louwaars, N.P., 1995. Regional Co-operation in Seed Security in the WANA region. ICARDA, Aleppo, Syria
Louwaars, N.P. and G.A.M. van Marrewijk, (1996). Seed Supply Systems in Developing Countries. Wageningen: CTA.
Thomson, J.R., 1979. An introduction to seed technology. Leonard Hill, Glasgow, UK.
Wellving, A.H.A., 1984. Seed production handbook of Zambia. Department of Agriculture, Lusaka.
Tripp, R. 1997. New seeds and old laws. London: Intermediate Technology Publications.
Virk, D.S., A.J. Packwood & J.R. Witcombe, (1996). Varietal Testing and Popularisation and Research Linkages. Discussion papers series. Centre for Arid Zone Studies, Bangor, 27 p.
|
||
|
|
|
