In March 2010, approximately 800 people gathered in Ankeny, Iowa, for a public event hosted by the Departments of Justice (DOJ) and Agriculture (USDA) on competition in agriculture. The meeting followed an outpouring of 15,000 public comments on the topic of consolidation in the seed, livestock, dairy, poultry and food retail industries.
At the event, a Missouri farmer stood up and declared, “We’ve waited a long time for justice in the heartland.” There were yips and claps. The energy in the room felt earnest given the questions at hand — for one, who controls the seed market, the foundation of our food supply?
In total, the agencies hosted five of these “workshops” across the U.S. that year. Farmers, ranchers, farm advocacy organizations, businesses and consumers showed up in large numbers to listen and provide testimony reflecting their plight: skyrocketing input prices, fewer options in the marketplace, as well as egregious production and licensing contracts. The events were historic, lending to confidence that change was on the horizon.
But the hope was short-lived. The public’s investment — in the form of tax dollars, time and courage — resulted in no meaningful action, most notably in the seed trade,one of the most concentrated and privatized industries in agriculture. In the decade that followed, market consolidation only worsened. Today, four transnational firms control more than 60 percent of the global commercial seed market, a concentration ratio that far exceeds the benchmark for healthy competition as established by agricultural economists.
Now, with renewed focus on competition concerns in the seed industry, American farmers are once again asking themselves if they should be speaking up to bring fairness back to their fields.
Three months ago, the U.S. Department of Agriculture launched an inquiry asking for public comments on competition concerns in the seed industry as they relate to intellectual property rights (IPR). The agency is examining impacts on farmers, plant breeders, independent seed companies, tribal members and other historically underserved growers, as well as society at large. This inquiry stems from President Biden’s July 2021 executive order on promoting competition across the American economy. The comment deadline closes on June 15.
That this inquiry was initiated by the executive office is notable, but even more remarkable is the primary focus on seed. A targeted examination of the seed trade through a combined antitrust and IPR lens is long overdue, and we applaud the administration for shining light on this connection. Understanding the tension between antitrust and IP laws is especially relevant to seed. While other agricultural sectors, such as agrochemicals and fertilizers, could also be described as an oligopoly, seed is unique from every other input market: it is a living resource.
Seeds are not manufactured in a facility but represent generations of natural evolution both alongside and in absence of human intervention. In this way, grower decisions pertaining to seed are not only economical, but also ethical and cultural. The cultural heritage of our seed supply makes ownership claims via IPR that much more fraught when considering the history of appropriation (stolen land and seeds), not to mention the original intent of IPR laws.
As the seed trade continues to consolidate, the diversity of seed in the marketplace decreases. Simultaneously, the pool of plant genetics (“germplasm”) available to plant breeders is receding due to highly restrictive forms of IPR, especially utility patents awarded under the U.S. Patent Act — “patents for invention.”
A single patent can cover the plant, seed, future generations, genetic traits, crosses with other varieties and the methods used to produce it. Owners of utility patents, therefore, have far-reaching control over access and use of their protected seed and commonly restrict breeding, research, and seed saving — the very practice that established the diversity of domesticated crops we enjoy today. Hundreds of farmers have been sued for saving patented seed, resulting in million-dollar judgments and bankruptcy.
In other words, the entities controlling much of the seed supply are limiting competition from angles beyond their foothold of power in the retail marketplace. You cannot compete in product development if you cannot access the parts.
Meanwhile, the Biden administration and Congress have all the parts they need to effect meaningful policy change. Antitrust laws can be enhanced and more strongly enforced, while IPR laws and policies can return to their original intent of incentivizing innovation, not the monopolization of markets. Denying patents on products of nature is also critical.
In fact, it was never Congress’s intent to award utility patents for plants. Congress long argued that sexually reproducing plants should not be awarded utility patents for fear of curtailing innovation, threatening the free exchange of genetic resources and increasing market concentration. A 1966 congressional committee report confirms that while its members “acknowledge the valuable contribution of plant and seed breeders, it does not consider the patent system the proper vehicle for the protection of such subject matter.”
These conversations led to the passing of the 1970 Plant Variety Protection (PVP) Act. A PVP certificate is not a patent but provides exclusive marketing rights for 20 years to plant breeders for their new varieties. Congress was very deliberate when including two exemptions that protect competition and future innovation. The law requires these varieties to remain accessible for breeding purposes and protects a grower’s right to save PVP-protected seed for re-planting on their own farm. The law served as a compromise between those who wanted full ownership rights of plant varieties and genetics and those who wanted all plant varieties to remain fully accessible without restrictions on breeding, growing or distribution.
Everything changed with a Supreme Court decision in 1980, when a five-to-four decision allowed a patent on an “artificially constructed” microorganism. The effect of this decision (and others that followed) has been a Patent and Trademark Office that now views some products of nature as human-made sums of parts, opening the floodgate to patents on seeds, plants and genetic traits. Had the court honored the congressional record on this topic, farmers would be operating within a very different seed system.
It’s not too late to change course. The Biden administration can align itself with and support American farmers who are still waiting for justice. There is an urgent need to sow fairness back into our laws and policies as they relate to seed. The administration would be wise to choose that path.
Kiki Hubbard is the director of advocacy and communications for Organic Seed Alliance, working toward organic seed systems that are democratic, just as well as support human and environmental health.