Plant protection authority sets right its potato blunder

A controversial potato variety used to make a global brand of chips is no longer shackled; it is free for cultivation by farmers without the threat of penal action for violating intellectual property rights (IPR).

Read Historic win for farmer seed rights: PepsiCo’s IPR on potato variety revoked

Nearly four years after PepsiCo India unleashed a series of minatory measures against farmers in Gujarat, an unsavoury and unsettling chapter in India’s agriculture has ended with the plant protection authority revoking the registration it had given to PepsiCo’s FL 2027 potato variety (also known as the FC5 variety) used in the manufacture of Lay’s chips.

In the process, the authority has indicted itself in no uncertain terms — an unusual occurrence in officialdom — by listing a series of procedural lapses by the registrar, some of them major, in approving the registration despite omissions and fudging in the application submitted by PepsiCo.

Perhaps this is the real cause for celebration, if it means the process of registrations at the statutory body, the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Authority, will be more streamlined hereafter.

More important in its revocation judgement is the authority’s affirmation of the overarching spirit of the law, which says the farmer’s interests are supreme. It has accepted a major contention of the revocation petition filed by farm activist Kavita Kuruganti, that the grant of registration was not in the public interest. In other words, something that violates the rights of farmers as enshrined in India’s unique plant protection law is not in the public interest.

The revocation of PepsiCo’s registration December 3, 2021 has lessons for the authority and the farming community. When the Protection of Plant Varieties and Farmers’ Rights Act was enacted in 2001 to comply with the World Trade Organization’s requirements on laws to protect IPRs in agriculture, there was unease and annoyance.

The farm community in India and those working to protect farmers’ rights were apprehensive about the introduction of IPRs in agriculture, an alien concept in a country — as in other parts of the world — where farmers store, reuse and freely share seeds.

The law that was passed after years of debate has huge lacunae, but the fears of the community were to a large extent assuaged with the inclusion of a chapter in the Act that seemingly makes the rights of farmers’ paramount over those of breeders and commercial interests by protecting their traditional practice of reusing and sharing seeds.

This was the cause for annoyance, globally. Developed countries subscribe to a framework of rules laid out by the International Union for Protection of New Plant Varieties (UPOV) called the UPOV convention, that protects breeders’ rights and bars farmers from reusing saved seeds or exchanging them with other cultivators.

For two decades, India has faced pressure to join UPOV, but the country has remained steadfast in keeping its law untouched. However, at home, there has been dissatisfaction with the way the law is being implemented by the plant protection authority, whose functioning has been largely under the radar till the PepsiCo case became a cause célèbre.

PepsiCo, which applied for the registration of its FL 2027 potato variety in 2011, was granted the same five years later. In 2018 and 2019, the company began intimidating potato growers in Gujarat for violation of its IPR. Claiming that the farmers were using its variety illegally, it filed IPR infringement cases against a clutch of cultivators, the first such cases on planting material to be filed in India.

Read: Farmers’ rights are a hot potato

There was widespread outrage, too, over PepsiCo’s demand for an absurdly high compensation of Rs 1 crore from each farmer. Compensation comes into play because registration is a kind of IPR which gives the breeder or company exclusive rights to produce, sell, market, distribute, import and export the said variety — but without impinging on the farmers' freedom to save, sow, resow, exchange, share and sell harvest, including seeds of any registered variety.

The spirited campaign by farmers’ organisations to counter PepsiCo’s intimidation has done much to clarify the understanding of the law. For instance, a “frequently asked questions” (FAQ) booklet on PPV&FR’s website was pulled out after farmers’ groups pointed out anomalous interpretations of different sections of the law. A new unambiguous set of FAQs has replaced it.

More surprising is the authority’s candid admission of its “inadequate and indifferent” scrutiny of the claims made in the application, all of which are blamed on a registrar who was not named. Some of the lapses are egregious, such as allowing the registration of FL 2027 as an extant variety although the company had initially sought its registration as a new variety.

This was permitted without the company making the necessary amendments in writing. Calling it “highly deplorable” and a textbook case of what happens when the rules are flouted, the authority says in its order that the violation of rules has caused hardship to farmers.

The judgement is indubitably an acknowledgement of the compelling nature of the case made out by Kuruganti and other activists. She fought the case on her own, taking on a battery of lawyers from a leading legal firm who appeared for PepsiCo. This is a victory all right, but it is primarily related to the procedural aspects of the authority’s functioning.

There are, however, other issues that call for urgent action. For instance, why did PepsiCo change the category of its potato variety from new to extant or “varieties of common knowledge”?

NS Gopalakrishnan, a leading IPR academic who has analysed decades of data on plant registrations, offers an unsettling answer. He says that unlike UPOV, which focuses only on registration of the newly bred varieties that meet specified standards, the Indian law is facilitating the enclosure of what were once publicly available varieties used freely by the farming community.

Corporate entities and public institutions are registering more and more extant varieties because PPV&FR is using the gaps in the law to enable modern breeders and seed industries to enclose publicly available varieties.

One does not have to reiterate the importance of preserving and developing traditional varieties and breeding practices of the farming community to promote sustainable agriculture in India. It is in this context that the norm-setting practices and procedures followed by PPV&FR for registering extant and farmers’ varieties need to be scrutinised carefully. 

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