2019 CAFLP Annual Conference Panel Recap: “From Seeds to Market”

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When we think about food systems, seeds are not the first thing most of us think about. We might purchase a packet of carrot seeds to scatter in our backyard gardens each springtime, or spit them out between bites of watermelon.

However, the three experts on the “From Seeds to Market” panel agree: Seeds form the foundation of our food system, and intellectual property (IP) policy underpins the future of seed development and diversity.

Seed breeders have been improving seed varieties for centuries. Historically, this occurs when farmers practice seed saving, thereby selecting the seeds with the most desirable traits in each successive generation of planting. More recently, seed breeders use science-based techniques – such as gene editing technologies – to induce targeted changes in seeds to suit customer tastes and growers’ preferences.

Lauren Martin is Lead in Government & Industry Relations at the Canadian Seed Trade Association. Martin emphasized the complexity of the seed lifecycle in Canada. This multi-step process involves a number of actors, safeguards, and regulations. The result? Taking a new seed variety from development to market in Canada takes significant time and money, and requires the developer to take on liability. For example, developing a new variety of wheat typically takes 8 to 12 years and requires approximately $1 million.

The Plant Breeders’ Rights Act provides intellectual property protection (IPP) for plant breeders in Canada. Breeders who have developed a seed variety can apply under the Act for exclusive rights to their variety for a timebound exclusivity standard of 20 years. The objective of the Act is to stimulate plant breeding in Canada, give Canadians more access to foreign varieties, and to protect Canadian varieties on foreign markets. Only certain varieties are eligible for IPP under the Act. A variety must be new, uniform, distinct, and stable; heritage or traditional seed varieties cannot obtain IPP.

Some argue that the regulatory burden and cost imposed by the Act stifle innovation and unfairly exclude certain groups such as Indigenous Peoples and women via its language and its doctrine. Joanie Lapalme, a lawyer specializing in intellectual property at Fasken, argues that we can meet the global challenge of increasing agricultural production through innovation. How do we foster innovation? One way is by making space in the Act for Traditional Knowledge and possibly extending the Act to include ancestral varieties.

Another issue with the Act is that it reduces farmers’ seed sovereignty and concentrates control of the seed market within a handful of large seed production companies producing a small number of seed varieties. Under the Act, farmers are permitted to clean grain for protected varieties for their own use on their own farm, but otherwise farmers are generally bound by agreements with seed breeders that prohibit the re-planting of seeds they purchase. It has always been a farmer’s right to save seeds; now, it’s a farmer’s privilege. Soon, farmers could be criminalized for practicing seed saving, the age-old foundation of farming. This trend not only reduces the genetic foundation of our food system as fewer seed varieties make it to markets, but also reduces farmers’ and consumers’ food sovereignty.

Dan Kiselbach of Miller Thompson focused on a different Act – the Safe Food for Canadians Act, which came into full effect on 15 January, 2019, marking a “new era of food safety.” Kiselbach highlighted the advantages of the Act, including the consolidation of multiple acts that previously dealt with food safety, and the decreased regulatory burden on companies. The act protects consumers from food frauds such as mislabeling of organic claims, forging Kosher certificates, and mislabelling fish and seafood due to species substitutions. However, there is a lack of resources to prosecute these cases. On average, just 3 cases per year are processed due to lack of funding and enforcement. Currently, regulations are not well-suited to encourage compliance, so Kiselbach suggested one potential solution is to work more closely with industries to ensure compliance.