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Non-royalty wheats will continue to be an option

Industry officials say seed companies are unlikely to deregister varieties to limit farmers’ choices in an effort to collect more royalty money

If new proposed cereal royalties are implemented farmers will pay more for seed, but they can also choose to grow varieties not covered by the new regulations.

That’s according to Plant Breeders’ Rights Commissioner Anthony Parker.

But for how long? At least 2021 and probably longer, says the Canadian Food Inspection Agency, which oversees seed regulations.

Anthony Parker.
photo: Allan Dawson

“There will be for an extended period of time a period where varieties that don’t have this in place, that were protected under the old regime, are still available in the marketplace and are not subject to any condition to collect a royalty,” Parker told the first royalty consultation meeting in Winnipeg Nov. 16.

Only varieties registered since Canada implemented UPOV ’91 on Feb. 27, 2015 would be subject to one of two proposed new royalties, he said. The start date could be any time since, meaning even fewer varieties would be subject to a new royalty.

Why it matters: Farmers are being told they’ll have non-royalty variety options, but some worry seed companies, motivated to maximize royalty earnings, might limit their choices.

“Only 43 per cent of the currently registered wheat varieties have (UPOV ’91) PBR (plant breeders’ rights), and the average duration of protection is approximately 6.8 years,” the CFIA and Agriculture and Agri-Food Canada (AAFC) said in an email Nov. 23.

When PBR is dropped royalties don’t apply.

A similar message was delivered Nov. 20 and 21 during the Canadian Seed Growers’ Association’s interprovincial meeting in Winnipeg by Lorne Hadley, executive director of the Canadian Plant Technology Agency, which enforces PBR in Canada.

CFIA says variety owners have to give three years’ notice before deregistering a variety and since none are on the deregistration list no wheats will be deregistered until at least 2021.

Before CFIA allows a seed company to deregister a variety it must be assured seed stocks have been, or will be, removed so farmers can’t grow it.

Even if a farmer found seed, grain companies ask farmers to sign declarations that they are delivering wheat registered for the intended class. Breaching that declaration could result in legal action against the farmer.

While not very likely, companies could opt not to sell seed for those older varieties. That’s what happened when the patent for the original Roundup Ready soybeans expired in August 2011. Farmers weren’t allowed to legally save any of the seed produced that year. However, they could buy Roundup Ready 1 seed from seed companies and plant it in 2012 and then legally save seed from that crop to plant in future years. It was rumoured few farmers did because seed companies weren’t selling.

“We want to stay in business,” said one seed company official in an interview in early 2011. “If we keep selling 1s we’re not going to be in business.

“I’m not aware of any seed company building its future by continuing to sell 1s.”

The wheat situation is much different because in many cases farmers already have the seed so they don’t need to find a seller.

Shawn Brook, president of Issues Ink and publisher of Germination, a magazine that covers the seed trade, said varieties farmers want won’t be deregistered.

“No one would ever deregister a variety that is of benefit to growers and what growers are looking for,” he said on the sidelines of the interprovincial seed meeting Nov. 20 where he was leading a discussion on the royalty proposals. “The whole premise of the system is that the varieties that are sought after, the varieties that are wanted in the marketplace, those are going to be the varieties that are going to be offered.”

He also said open-pollinated canola varieties aren’t that scarce.

“Some have been deregistered because they are not being sought after,” he said.

Former National Farmers Union president Terry Boehm, who farms at Colonsay, Sask., says the deregistration of open-pollinated canolas is limiting his planting choices. For agronomic and philosophical reasons he hasn’t grown, and doesn’t want to grow, genetically modified or hybrid canola. There are only a few open-pollinated varieties available, he said in a phone interview Nov. 20.

Earlier that day Hadley said interested parties can ask CFIA not to deregister a variety, and it might pay heed, depending on the circumstances.

That isn’t so, Boehm said, based on his experience. A few years ago Boehm told CFIA he wanted to be the ‘maintainer’ of Ebony canola, an open-pollinated variety developed by Limagrain, later owned by Monsanto. Monsanto rejected his offer and deregistered Ebony. The variety owner has the final say, Boehm said. That was confirmed in the AAFC-CFIA email.

“The Seeds Regulations are very clear that the registrar shall cancel a variety registration upon request by the registrant of that variety… ” the email says. (See ‘The process to deregister’ further down)

The departments also don’t think wheat deregistrations, which are rare, will suddenly increase.

Currently 463 wheats are registered in Canada. Only 13 have been deregistered that formerly held plant breeders’ rights that either expired, were revoked, or surrendered, the email says. This represents 2.8 per cent of the total number of wheats available for sale in Canada.

“From the data available, it is clear that variety developers rarely deregister wheat varieties after PBR protection has been voluntarily surrendered or has expired,” the CFIA/AAFC email says. “In fact, in the vast majority of instances, variety registration is maintained even though the developer no longer has PBR protection.”

It’s different for canola though. CFIA’s website shows since 2000 more than 60 canolas have been deregistered. It’s unclear from the list how many are open pollinated.

Many were probably not selling very well.

“Producers will have a choice in the varieties they wish to use,” AAFC and CFIA said in their email. “If producers wish to use non-PBR protected varieties, they are free to do so.

“The process for variety deregistration will be considered during the upcoming Seed Regulatory Modernization initiative, to ensure it is in line with current practices and realities.”

Farmers have options now, but if one of the two proposed royalties is implemented real choice will disappear over time, according to Boehm.

New varieties will become so much better presenting farmers with a ‘Hobson’s’ choice, which is no choice at all.

The choice farmers have now — to save and sow their own seed royalty free, or buy certified seed and pay a royalty — will, for good or ill, be gone.

Farmers are trying to figure out which one it might be.


The process to deregister a crop variety

The Canadian Food Inspection Agency (CFIA) says the following is the process for deregistering crop varieties:

1) A request from the registrant is received by the Variety Registration Office (VRO).

2) The requester is asked for written assurance that seed stocks of the variety are removed, or will be removed, by the end of the three- year notification of intent-to-cancel period. Three years’ notice is given, except for hybrid canola, to protect farmers from delivering an unregistered variety to Canada’s grain elevators.

3) CFIA posts the cancellation notification list on its website.

In addition, notice that a registration is being cancelled is sent to interested parties, including the registrant, Canadian Grain Commission (CGC), the Canadian Seed Growers Association, and CFIA staff.

CFIA and the CGC have developed communications protocol, which includes the CGC notifying farmers through Canada’s grain elevator network and other channels.

“If the CFIA is approached by an interested party — e.g. a farmer or an independent seed dealer — expressing an interest in a variety slated for cancellation, we put them in touch with the registrant of that variety in order to explore possible licensing arrangements.”

About the author

Reporter

Allan Dawson is a reporter with the Manitoba Co-operator based near Miami, Man. Covering agriculture since 1980, Dawson has spent most of his career with the Co-operator except for several years with Farmers’ Independent Weekly and before that a Morden-Winkler area radio station.

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