Seed Sovereignty | U.S. seed law policy, politics, and food justice movements
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| Campaign for Seed Sovereignty, La Via Campesina |
Moderator’s Note: Continuing a series related to the movement for seed
sovereignty, we are presenting an insightful and timely analysis of U.S. seed
law and its implications for the organization and exercise of the right of
citizens and residents to participate in seed saving and exchange networks. The
Sustainable Economies Law Center (SELC)
in California prepared the analysis and the primary conclusion they arrive at
is that we need to
…change laws to create
a clear legal space for seed libraries, we should perhaps also do so for
small-scale seed enterprises….[D]uring times of food insecurity, climate
disruption, and genetic consolidation of the sources of our food (seeds!), the
benefit of seed libraries is enormous as compared to the potential harm of a
seed packet gifted within a community. Let’s make sure our laws get with the
times!
This
is a timely analysis given the recent actions that we reported on last week
involving seemingly unconstitutional actions taken by the Pennsylvania Department
of Agriculture (PDA) in closing down a local seed library in Cumberland County.
This
is a pivotal issue facing the environmental and food justice movements and
their shared vision of the rebuilding of communities from the bottom up through
more cooperative forms of economic organization. The struggle for seed freedom
is part of the larger struggle for Earth democracy.
Setting the Record Straight on the Legality of Seed
Libraries
Janelle Orsi, Neil Thapar,[a] Neal Gorenflo,[[b]
and Sarah Baird[c] | San Francisco, CA |
August 11, 2014
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| Pueblo Semilla Seed Library and Exchange. Photo credit: Pueblo Semilla |
After the
Pennsylvania Department of Agriculture cracked
down on a seed bank in the Joseph T. Simpson Public Library in Mechanicsburg,
Pennsylvania, hundreds of seed libraries in the
U.S. are suddenly wondering if they are breaking the law. According
to Pennsylvania regulators, in order to give
out member-donated seeds, the Simpson
Seed Library would have to put around 400 seeds of
each variety through impractical seed testing
procedures in order to determine quality,
germination rate, and so on. The result of the Pennsylvania crackdown is that
the library will no longer give out seeds other than those which are commercially
packaged.
Ironically,
this is in the name of “protecting and maintaining the food sources of
America.” In this
news article that went viral, regulators said that
“agri-terrorism is a very, very real scenario.” In reality, seed libraries have
emerged to protect our food sources and ensure access to locally adapted and
heirloom varieties. The public’s access to seeds has been decreasing since a
1980 Supreme
Court ruling that a life-form could be patented.
Since then, big seed companies have shifted away from open-pollinated seeds to
patented hybridized and genetically engineered varieties. The companies
prohibit farmers from saving and replanting such seeds, requiring that they buy
new seeds each year. Counter to this trend, seed libraries give members free
seeds and request that members later harvest seed and give back to the library
thereby growing the pool of seeds available to everyone.
Seed Law Basics
It’s important
to set the record straight about the legalities of seed libraries. Let’s begin
with the basics: In every
state, there are laws requiring seed
companies to be licensed, test seeds, and properly label them. At the federal
level, there is a comparable law governing seed companies that sell seeds
interstate. All of these laws exist for good reason: If a tomato grower buys
10,000 tomato seeds, the grower’s livelihood is on the line if the seeds turn
out to be of poor quality or the wrong variety. Seed laws, like other
truth-in-labeling laws, keep seed companies accountable, prevent unfair
competition in the seed industry, and protect farmers whose livelihoods depend
on access to quality seeds. The testing and labeling of the seeds also helps to
prevent noxious weeds and invasive species from getting into the mix.
In some
states, the licensing, labeling, and testing laws only apply if you sell seed.
In other states, such as California, the laws apply if you even offer seeds for
barter, exchange, or trade. How do you define words like sell, barter,
exchange, and trade? And how do they apply to seed libraries? Read on if you
are ready to venture into interesting legal grey areas.
In at least
one state (yup, Pennsylvania), even supplying seeds make you subject to at least
some regulation. But the Pennsylvania seed law is about to be put to the test,
and we think that regulators should have read their law more carefully.
Using the Letter of the Law
When you see a
law enforced in what seems like an unfair way, we recommend reading the letter
of the law to see if you can find any holes in it. We did just that, and found
one! In Pennsylvania, supplying seed likely makes you subject to the
requirement to get a license, which involves filling out a form and paying an
annual $25 fee (Section 7103,
Chapter 71 of Pennsylvania Consolidated Statutes). However, the sections of the
law (7104,
7105,
etc.) that mandate testing and labeling only apply if you sell seed. Not
“supply,” but “sell!”
Has anyone in
Pennsylvania noticed this nuance since the whole Simpson Seed Library kerfuffle
began? Seed libraries in Pennsylvania could perhaps test this strategy: Fill
out the license form, pay the $25 fee, and continue to operate as usual. If the
Pennsylvania Department of Agriculture demands testing and labeling of seeds, a
seed library could try holding its ground until the regulators see their own
error or until a court makes a determination that the library is not “selling”
seeds. (Note: We’re not giving legal advice here! Get legal advice from a
Pennsylvania lawyer, because breaking this law the first time could result in
up to 90 days of prison time, and breaking it the second time can result in up
to two years.)
Working Within Grey Areas
California and
other states define “sell” to include exchange, barter, or trade. This broad
definition helps to ensure that people can’t sidestep regulation simply because
they aren’t using dollars to bargain. Bargaining is a key concept in all of
this. We have innumerable regulations designed to temper the potential harms
that arise when people bargain in the context of commerce. Merchants have an
incentive to seek high prices and to reduce their costs in order to get more.
When people transact within the “get more” frame of mind, it is far more likely
they will cut corners, disregard risks, be careless, mislead people, and so on.
That’s why regulations apply when people sell things, but rarely when people
give things.
Seed libraries
have a “give more” frame of mind, which motivates the libraries to do right by
their members and the community. They ask people to donate seed back to the
library, but do so with the goal of giving away more seed. The letter of the
law doesn’t tell us that seed libraries are clearly exempt from regulation, but
the spirit of the law does.
When the
application of a law is unclear, we must go deeper to hone our legal arguments.
Although the libraries both give and receive seeds, there’s a strong argument
that they do not, in fact, exchange seed in the way the California regulation
envisions. To find solid legal ground for this argument, seed libraries can
borrow legal arguments from time banks. A time bank is an organization through
which members do favors for one another and award one another a “time dollar”
or “time credit” for every hour of service. People can use their time credits
to reward favors they receive from other members of the network. The IRS has
acknowledged in private letter rulings that this activity is distinct from that
of a barter exchange for two primary reasons: 1) the giving and receiving of
favors happens informally, meaning that people get no contractual right to have
their favor returned, and 2) the exchanges are non-commercial, as demonstrated
by the fact that everyone’s hour is valued equally, meaning that people are not
bargaining for services at market rate.
Similarly,
seed libraries generally give and receive seeds on an informal basis, meaning
that neither the library nor its members have a right or requirement to give
seed. Members likely have a sense of responsibility to give back to the seed
library, but the library cannot force them to do so. In addition, seed
libraries give and receive seeds on a non-commercial basis. People neither pay
money for seeds, nor do they measure the value of seeds they give in proportion
to what they get. You can learn more the about nuanced differences between
giving, swapping, exchanging, and selling here and here.
Note that it’s
important for seed libraries to ensure that their policies, languaging [sic],
and practices reflect what we’ve described in the above paragraph. If the
library makes people feel as if they are required to give seed later on or if
the library is counting seeds in order to keep score somehow, then the library
might actually come under the regulations. We have seen at least one seed
library that has members sign a contract indicating that the member “shall” or
“agrees to” donate twice the amount of seed that they checked out. This is
risky. We suggest that all seed libraries review their documents and revise
paperwork in order to simply
collect information from members about
what kind of seed they received, what they are donating, their experience with
the plant, and so on.
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| The Simpson Seed Library before its opening this past April. Credit: Rebecca Swanger |
Crowdsourcing a Seed Law Library
Drawing upon
the spirit of reciprocity that motivates seed libraries, we’d like to urge
readers to take 30 minutes and give back by doing research on other states’
seed laws. We’ve created a Hackpad
where anyone can add links to state seed laws, copy and paste in key
provisions, and add your comments and questions. Wanna take a crack at it? It’s
very empowering to learn how to find and navigate laws.
The American
Seed Trade Association compiled a
list of state seed laws, but many of the
links are broken, so you may need to access the laws by navigating through
state agricultural codes. Commonly, state seed laws live in two places: 1)
state statutes created by legislators, and 2) regulations created by the state
department of agriculture. You need to review both.
We Still Need to Change These Laws!
Even though we
have arguments that seed libraries are not subject to state and federal testing
and labeling requirements, it would be ideal for our laws to say this
explicitly. No matter what state you are in, you could look on either end of
the political spectrum and probably find a legislator who would be sympathetic
to these issues. You could ask a legislator to introduce a bill that has simple
language such as:
Notwithstanding
any other provision of this [law, act, chapter, article], Seed Libraries shall
be exempt from all licensing, testing, labeling, and other requirements of this
[law, act, chapter, article]. ‘Seed Library’ shall be defined as a nonprofit,
cooperative, or governmental organization that donates seed and receives donations
of seed.
Depending on
how much discretion your state department of agriculture has with regard to the
crafting of regulations, you could, instead, simply ask the department to amend
the regulations.
Also, we
recommend that seed libraries and other advocates write letters to the Association of
American Seed Control Officials (AASCO), a national
membership organization comprised of state seed regulatory officials. Among
other activities, AASCO developed and maintains the Revised
Uniform State Seed Law, the model law on
which many states’ seed laws are based. If AASCO were to expressly exempt seed
libraries from regulation, several states would likely follow suit, since they
often adopt wholesale AASCO’s recommendations. AASCO’s membership
directory also contains mailing and email
addresses for seed regulators in each state, so we recommend that everyone
write to them as well.
If we change
laws to create a clear legal space for seed libraries, we should perhaps also
do so for small-scale seed enterprises. If current law requires a seed business
to test 400 seeds of each variety, this privileges large seed companies, and
effectively blocks farmers from starting small seed enterprises. Further, the
scale of operation should make a difference when it comes to achieving the
goals of these laws. If a package of 100 seeds ends up being of poor quality or
if it contains noxious weeds, the harm to the grower or to society is much
lower than if the packet contained 10,000 seeds. Likewise, seed sales that are
conducted direct-to-consumer within a small geographic area present minimal risk
of introducing new invasive or noxious species.
Thus, when we
change the laws, we should also create exemptions and lower compliance hurdles
for seed enterprises that sell seeds in small quantities, direct-to-consumer,
and/or within a confined region.
In the big
picture, laws should not try to protect citizens from all imaginable harms nor
should laws overreach into all areas of our lives. Every law requires a
balancing act. Although driving a car is quite dangerous, people are allowed to
do it, because society has decided that the benefit of mobility outweighs the
risk of harm. Similarly, during times of food insecurity, climate disruption,
and genetic consolidation of the sources of our food (seeds!), the benefit of
seed libraries is enormous as compared to the potential harm of a seed packet
gifted within a community. Let’s make sure our laws get with the times!
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