Swapping seeds? There’s a law for that

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SALEM, Ohio — When the Joseph T. Simpson Library in Mechanicsburg, Pennsylvania, decided to launch a seed library on Earth Day 2014, the group’s promotion efforts ran headlong into the state’s seed law.

“Our surprise was that no one else knew about it,” Sue Erdman, Simpson Library director, said of the regulation.

“We are the ones who found out about it, so we are talking to other groups so that they are aware of it and don’t get into any problems. We all want to comply with the law.”

Scott McFetridge from the Associated Press reports that seed exchanges have sprouted up in about 300 locations around the country, most often in libraries, where gardeners can exchange self-pollinating seeds rather than buy pre-packaged hybrid seeds.

Agriculture officials say they weren’t looking for a fight, but felt obligated to step in, as they became aware of the increasingly popular seed libraries to enforce laws, which are largely uniform across the country.
Intended to protect farmers, the laws ensure seeds are viable, will grow the intended plant and aren’t mixed with unwanted seeds for weeds or plants.

Simpson case

In June, Pennsylvania Department of Agriculture officials contacted the Simpson Library and informed seed library organizers that their efforts were in violation of the state’s 2004 Seed Act, which regulates the sale and distribution of seeds.

“What they were doing falls under distribution, so a protocol was developed,” said John Zook, seed program supervisor for Pennsylvania Department of Agriculture. “Being a collection point and broadcasting to the public at large that they were a continuous source of seed fell under two sections (of the state seed act) addressing licensing and labeling.”

The Pennsylvania Seed Act states it is unlawful to sell or offer for sale seeds that have not been tested to determine the percentage of germination; contain prohibited noxious weeds; are not properly labeled; or have been advertised in a misleading manner.

In short, although the Simpson Library seed swap was free, the library would need to obtain a seller’s license and have proper testing of the seeds — both of which, Erdman said, were “beyond our ability.”

Agreement reached

The protocol agreed upon by both parties, Zook said, allows the Simpson Library to operate its seed-swap program “outside the purview of the Seed Act,” while ultimately still being subject to it.
“Before, the library was collecting all the seed, organizing it and putting into a catalogue,” Zook said. “The library is now collecting currently labeled seed packages.”

At the same time, the state allowed for individual seed swaps to take place at the library.

“We identified the library’s goal and allowed them to meet it without falling under our jurisdiction,” Zook said. “The regulators tried to figure out a way to not regulate.”

Spirit of law

Following the Simpson Library agreement however, AP’s McFetridge reported that some were still puzzled about why the state had demanded changes.

Zook told Farm and Dairy the overall goal of seed laws is twofold: consumer protection and truth in labeling.

“Black nightshade, which is poisonous, is indistinguishable from a small hot pepper seed,” he said. “So what if you have some yahoo who wants to mess around?”

Zook said the department felt the likelihood of such an incident was lessened in one-on-one swaps. Meanwhile, the agreement ensures that the seed library will not be held liable if there are large scale violations.

Noting that Simpson Library officials did contact the Cumberland County Extension office for regulatory advice prior to starting the seed library, Zook encouraged other seed libraries contact state departments of agriculture directly.

“We have identified about eight or 10 other libraries in the state, but we aren’t out looking for (violations),” he said. “It is only if we run across it or have a complaint.”

Ohio reaction

In Ohio, there have been even fewer instances of seed exchanges running afoul of state seed laws.

“Every once in a while, with regulatory law, these things come up,” said Matt Beal, chief of the ODA’s division of plant health. “But to tell the truth, we came to know of it through what happened in Pennsylvania.”

Since then, Beal said, his department has been researching how other states are addressing the issue. To date, he added, the ODA has received only “a handful” of calls seeking information on the issue, mainly from seed libraries themselves.

Understanding seed laws

Like most state seed laws, Ohio’s refers to sales of seeds. That term, however, has been defined to include exchanges, where no money changes hands.

“The seed law is there for the major seed labelers,” Beal said. “You have to get a permit to label, and all crops are treated differently. But (labeling) is important because seed is a high-dollar input cost for farmers.”
Determining where seed libraries fit into the overall picture, Beal said, will drive how the state regulates them.
“It could be just a guy trading an heirloom seed with another guy, but until we know everything that goes on, we don’t know what level of regulatory oversight is needed,” he said.

Violations found

When improper labeling violations are found, Beal said, the most common action taken by the ODA is to pull the product from distribution until it can be tested and properly labeled.

The costs incurred by this, he said, is usually enough of a deterrent.

“For it to be malicious, intentional fraud, it would have to be pretty big, and word is going to spread through the industry pretty fast,” Beal said. “So it is usually a case of ‘if you fix it, you can sell it’.”

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(©2015 Farm and Dairy. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. AP contributed to this report.)

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