Potato wars

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Potato wars

PepsiCo’s case against Gujarat’s potato growers was a patently weak one

Source: https://www.thehindubusinessline.com/opinion/editorial/potato-wars/article27050752.ece

Why in news?

  • PepsiCo India Holdings (PIH) announced it is withdrawing lawsuits against nine farmers in north Gujarat, after having sued 11 farmers for “illegally” growing and selling” a potato variety registered in the company’s name.
  • After pressure from farmers’ groups, PepsiCo has decided to withdraw cases against about 10 farmers in Gujarat and Rajasthan who were allegedly cultivating its FC-5 variety — registered by it under the Protection of Plant Varieties and Farmers’ Rights Act 2001 (PPVFRA) — for their own use.
    • The FC-5 variety, used to make Lay’s chips, is grown under a contract farming deal, by 12,000 farmers in Gujarat’s Sabarkantha district.

The case

  • Variety: The patent is for the potato plant variety FL-2027 (commercial name FC-5). Pepsi’s North America subsidiary Frito-Lay has the patent until October 2023.
  • For India, PIH has patented FC-5 until January 2031 under the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001.
  • Allegation: PIH, which has a buyback agreement with Gujarat farmers, accused the 11 farmers — three of whom earlier had contracts with the company — of illegally growing, producing and selling the variety “without permission of PIH”.
  • Defence: The agreement was that PIH would collect potatoes of diameter greater than 45 mm, and that farmers had been storing smaller potatoes for sowing next year.
    • They got registered seeds from known groups and farmer communities and had been sowing these for the last four years or so, and had no contractual agreement with anyone.
    • They learnt they were growing a registered variety only when they got a court notice on April 11.

Current status

  • Right at the outset, it was apparent that PepsiCo never had a strong legal case against farmers growing its registered potato variety without entering into a contract.
  • As for proceeding against the rest, PepsiCo’s argument is not well supported by the law.
  • Sections 39 and 42 of PPVFRA clearly spell out the rights of the farmers in this regard, making a conscious departure from UPOV (International Union for the Protection of New Varieties of Plants) 1991.
    • UPOV 1991 gives breeders the right to monitor all aspects of a farmer’s activity, shutting out scope for farmers to re-use seeds without their permission, the PPVRA rules this out.
    • Section 39 (iv) says: “A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.” The seeds, it would appear, were not sold as branded seeds.
    • Section 42 says: “A right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right.” This makes any claim of damages tenuous.

Protecting the farmers

  • Recognising the bias in international law, the Indian PPV & FRA law (2001), entitles not just the breeder but also the farmer.
    • The conjoining of the two rights, it was argued, would facilitate the growth of the seed industry, ensure the availability of high-quality seeds, as well as secure the livelihood and plant varieties of the farmers.
    • Accommodating these twin purposes meant granting recognition of the proprietary claims of both the farmers and breeders, more accurately, of farmers as breeders
    • In doing so, it is not alone; Japan and Canada, besides other developing countries, have voiced their reservations.

Way forward

  • The argument that food should be kept out of rigid patent-like frameworks is not without basis.
    • It is not clear whether enhanced breeders’ rights under UPOV have enhanced research and public welfare along expected lines.
    • Monopoly concerns as well as those related to health and the environment have assumed centrestage over time.
  • In India, the gains under the Green Revolution took place on the back of public investment.
    • In fact, the discourse on how indigenous varieties of rice have been rendered extinct by the propagation of hybrids has relevance in the current context.
    • Plant diversity is crucial in a time of growing pest attacks, rising temperatures and climate change. UPOV does not appear to be in sync with these realities.
    • However, breeder research should be promoted in drought resistant varieties of millets and pulses.
    • There is no reason to believe that India’s legal framework does not allow this space, given the private participation in these areas.
  • Indian law grants the farmers and breeders co-equal rights. But the PPV&FRA law is mired in conflicting claims and jurisdictions, may not be able to enact a similar redress in future contests.
    • Beyond legalities, it’s time we, as a society, understood a simple truth — unfettered IP rights will always have the capacity to hurt the small farmers.
    • It’s time we understood that they also serve who only stand and wait. Put contextually, they also innovate who plant and cultivate.

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