Fees for National Listing and Plant Breeders' Rights

The Institute of Horticulture was requested to comment on a proposal to increase fees for National Listing and Plant Breeders' Rights by 5% as from July 2002. A response was submitted that the IoH did not object to the proposed increase in fees from July 2002 of 5%, except that any increase may discourage some breeding (eg of rhubarb, and of lettuce) where there are currently no other options for producing varieties.

The Institute calls into question DEFRA's assertion in the regulatory impact assessment that that there would be no 'costs' to citizens, the environment or Government as a result of the proposed increased fees. Does DEFRA not believe that gardeners, supermarkets, caterers, consumers, etc. do not need improved vegetable varieties.

Any increase above inflation would, in particular, deeply concern the UK packet seed industry; at a time when packet seed sales are static and put yet further pressure on the now only two UK-based vegetable breeding companies. An increase in National Listing costs will particularly discriminate against the home gardener, farm shops and other suppliers who want continuity of harvest over a period within a crop as new varieties could not afford to be offered.

The Institute cannot support the argument included in the consultation document's section on 'Risk Assessment' that the UK system might break down if fees are not increased. Breeders, above all, need a reliable system, and they will compare the UK and EU systems in this regard. DEFRA should consider improving their attempts to work with and meet the breeders' requirements. Increasing costs towards the EU levels will inevitably result in breeders applying for EU Rights, unless the UK authorities can offer the kind of support that other EU countries offer their breeders (cf. the Dutch, and the French).

However the consultation highlights a far deeper issue, that it is Government policy to recover fully the cost of the National List and Plant Breeders' Rights systems. However DEFRA's regulatory impact assessments estimate that to meet this requirement in 2002/2003 would require increases in fees of 43% for National Listing and 52% for Plant Breeders' Rights. They advise that they will be preparing a plan to achieve full cost recovery on both services for future years and will be undertaking a further consultation on this forthcoming review. In the light of this policy, it will be essential that the fee structure for Plant Breeders' Rights, which is a useful option available to the vegetable breeder, is known at the outset of the breeding programme.

Regarding National Listing of horticultural (ie vegetable) crops, many of these are bred to fit niches in a span of varieties within a crop type and therefore sold on a small scale, perhaps for a relatively short period. National Listing is inappropriate for species which are used as vegetables and prevents innovative breeding in these crops. Increasing fees will exacerbate this problem, particularly, as is being hinted, they may in future be raised to covering costs in full. One of the main reasons there are so few small plant breeding companies is because of the imposition of DUS (Distinct from all other varieties, Uniform within any one crop, and Stable from one seed lot or generation to the next) charges. DUS testing for vegetables needs fundamental reassessment or be phased out other than for when seed companies wish to apply for Plant Breeders' Rights. The current system is expensive, given the expected sales/profit of many varieties, unfair, anti-competitive and effectively a restraint of trade.

In providing comments for incorporation into the Institute's response to the DEFRA consultation documents, those members whose help was sought in preparing the response and, in particular, Peter Crisp of Innovar Plant Breeding made some useful general comments including an outline of, and distinction between, National Listing and Plant Breeder's Rights which it is hoped will be of use to members.

The distinction between National Listing and Plant Breeder's Rights needs emphasis.

Purpose and scope of National Listing:

Varieties of certain species (or subspecies) grown as vegetables must be accepted onto a National List before seed of the variety can legally be advertised and sold within the EU. The intention of National Listing when it was introduced in the 1970s was to give buyers confidence that seed sold under a particular name was of that variety. The current rationale behind National Listing is less clear. Quality of the seed, in terms of germination, vigour, hygiene and contamination is not defined by National Listing. 'Value for Cultivation and Use' (VCU) tests are not included in the National Listing of vegetable varieties - which is tacit acceptance that a vegetable variety may be grown to give different products. Species whose varieties are only propagated as clones do not require National Listing; neither do species which do not include edible crops - so most fruit and ornamentals are unaffected by this regulation.

So, the varieties of most horticultural species do not require National Listing, but for the species which do, all seed-propagated varieties, irrespective of market size, value, or purpose (even if non-edible) must be National Listed. . In order to acquire National Listing, these varieties must satisfy the strict standards of a 'DUS' test The DUS test automatically precludes any variety designed to give variability (say, for time of harvesting), or which incorporates genetic variability (say, for time of harvesting), or which incorporates genetic variability permitting adaptation to changing environments over succeeding generations.

That is, by design, National Listing discriminates against varieties intended for amateur gardeners, farm shops, or other suppliers who want continuity of harvest over a period within a crop. It also prohibits varieties which might allow ongoing genetic change in 'sustainable' (eg organic) horticultural systems.

Purpose and scope of Plant Breeders' Rights:

The intention of Plant Breeders' Rights is to prevent a breeder's competitors from 'pirating' his variety, or selling another variety under the same name. Vegetable breeders will develop varieties in the knowledge that they want to protect their varieties with Plant Breeders' Rights, or by some other method (notably by producing their varieties as F1 hybrids).

The effects of fees on National Listing:

Breeding programmes typically take five to fifteen years between the inception of the programme, when biological and economic decisions are made, to when the finished variety is sold. Estimations of downstream costs are of fundamental importance.

National Listing carries no benefit to the breeder (or, arguably, his customers). It imposes obligatory fees, delays, and uncertainties on the marketing of varieties. The worse these are, the less likely is the breeder to start the programme.

It is difficult to quantify the debilitating effects that National Listing has already had on vegetable breeding in UK. However, only two UK-based vegetable breeding companies survive from 20 years ago; and all recent start-up vegetable breeding enterprises have avoided National Listing by concentrating on species which are not subject to the regulations, or by conducting 'in-house' breeding programmes with vegetable producers. There is now virtually no innovative vegetable breeding in UK. This is widely recognised within the horticultural industry - for example, the Fresh Produce Consortium Market Review for 2001 (released 28 Feb 2002) draws attention to increasing horticultural imports to UK, caused in part by varietal innovation abroad.

The effects of fees on Plant Breeders' Rights:

Breeders who want Plant Breeders' Rights need to know the fees which will be charged, and have confidence in the efficiency of the regulatory system. However, if they are unhappy with these, at the outset of the breeding programme they can consider other methods of protecting their varieties - for seed-based vegetables. These might include breeding F1 or other 'biologically protected' varieties. Breeders, above all, need a reliable system, and they will compare the UK and EU systems in this regard. The UK authorities should consider improving their attempts to meet the breeders' requirements. Increasing costs towards the EU levels will inevitably result in breeders applying for EU Rights, unless the UK authorities can offer the kind of support that other EU countries offer their breeders (cf. the Dutch, and the French).
lower the fees, the more choices are available to the breeder, but the level of Plant Breeders' Rights fees will not, in itself, kill off breeding programmes at inception.

A complication is that Plant Breeders' Rights for vegetable varieties must be preceded by National Listing. The authorities may state that the two processes are independent, but in practice Rights will not be awarded unless the variety is made 'generally available', and seed of the variety cannot be sold unless it has National Listing. So, in order to obtain Plant Breeders' Rights a variety must first be accepted onto a National List. The whole process takes three to four years, and the breeder has to pay two sets of fees, including fees for virtually identical DUS tests for both National Listing and Plant Breeders' Rights! That is, National Listing makes Plant Breeders' Rights more expensive and difficult to obtain.