Flaw in law threatens to slow seeds sector’s success

In Photo: Cornfield in Bukidnon, one of the country’s major corn producers.

THERE’s a borer pestering the seed industry—and it’s not even an insect. This pest, which the government and private sector are trying to exterminate, is a flaw in a legislation that has been lingering for more than two decades now.

Seed-industry stakeholders have declared it’s high time to amend the 26-year-old Seed Industry Development Act of 1992 (Sida) to cope with the needs of the sector.

Cause

THE move to amend the Sida is a result of private seed companies’ woes in dealing with the proliferation of so-called counterfeit seeds, especially fake genetically modified (GM) seeds, in the domestic market today.

Industry stakeholders, such as Monsanto Philippines Inc. (Monsanto), estimate that the volume of fake GM corn seeds being sold in the market has been continuously increasing over the past four years with total hectarage planted with such product expanding to about 100,000 hectares to 120,000 hectares in 2017.

This land area is already around 12.32 percent to 14.78 percent of the estimated total 812,000 hectares planted with GM corn in the country. Industry stakeholders estimate that about 80 percent to 85 percent of the country’s yellow corn output is genetically modified.

The hectarage planted with counterfeit seeds used to be only about 1 percent of the total GM corn area in 2012, according to Monsanto.

These counterfeit GM seeds were first discovered by the private sector four years ago, Monsanto’s Gabriel O. Romero said.

Romero, who has a PhD in Genetics from University of California, Davis, explained they received reports from their regional sales distributors there are so called “ukay-ukay” seeds being sold in the domestic market.

These seeds, he added, were genetically modified and contained the Bacillus thuringiensis (Bt) corn traits registered with a government-authorized and approved multinational firm.

“We were really alerted by our sales people who have internal data on other companies,” Romero, Monsanto’s  Regulatory Policy and Scientific Affairs lead, told the BusinessMirror. “More so, there are farmers who report to our field personnel about these products.”

“It’s somehow an indirect estimation but, if taken together, this is the estimate that we are seeing [on the scope of counterfeit seeds],” he added.

Content

THE ukay-ukay seeds were being sold in plain sacks or bags and were marketed as conventional seeds, according to Romero.

To verify field reports that the ukay-ukay seeds contained Bt traits, Monsanto and the Bureau of Plant Industry (BPI) launched an internal investigation in 2014.

The investigation led to a series of laboratory tests to determine whether the ukay-ukay seeds are GM. It turned out to be true.

“In February 2014, the seeds industry requested the BPI that we conduct an internal survey and testing to confirm if these ukay-ukay seeds really contain the traits registered under the companies,” Ma. Lorelie Agbagala, chairman of BPI Biotech Technical Advisory Group, told the BusinessMirror.

“We did some sampling testing and we found out that the result [was] positive and containing traits belonging to Monsanto,” Agbagala added.

Romero said the distributors of the ukay-ukay seeds were neither authorized by Monsanto nor approved by the BPI.

Cost

ALONG with the expansion of area planted with fake Bt corn seeds was the increasing number of companies selling these illegitimate products.

“In 2012, we observed in the field at that time that there is only one company selling counterfeit Bt corn seeds and it started to increase by 2014,” he said.

“It started in remote areas of Region 2, which is a top-growing corn province,” he added. “Right now, there are at least seven companies and counting that are selling counterfeit seeds.”

And these companies, Romero explained, are registered seed producers and dominating the conventional seed market. However, they are only small players when it comes to Bt seeds.

What encouraged the proliferation of the counterfeit seeds is its enticing cost, according to Romero.

“Usually the price of counterfeit seeds is half than the branded seeds,” he said. “That is why it is very attractive to small farmers.”

Romero estimated that a 10-kilogram bag of fake Bt corn seeds, which could cover half an hectare, costs around P2,000 to P2,500, compared to the P4,000 to P5,000 worth of branded and authorized ones.

Indeed, some farmers opt to plant the counterfeit Bt corn seeds because of their cheaper value instead of the branded ones, according to the Philippine Maize Federation Inc. (PhilMaize).

“We can only see one reason for it, it is the cost. Because the ones they are saying to be counterfeit are cheap [compared to branded ones],” PhilMaize President Roger V. Navarro told the BusinessMirror.

“That’s the reality. Cost is a big factor for farmers. And that is why they are buying these so called fake seeds,” Navarro added.

Consequence

WHILE corn farmers may be able to cut their expenses for seeds by half, what they do not know is that this thriftiness may cost them more than the price tag.

“The risk is that farmers do not have the guarantee in terms of yield because they [no longer know] what specific type of seeds [they are] using or breeding,” Navarro said. “Whether it is bred by the farmers or sold by anybody, there would always be that risk that it would not grow properly.”

Romero explained that utilization of counterfeit seeds costs farmers the same amount of input but results in lower yield.

Based on their estimate the yield of counterfeit seeds is about 30 percent to 50 percent lower than the registered kernels authorized by the government, according to Romero.

“Definitely our self-sufficiency will decline if the technology behind Bt corn would decline [due to counterfeit seeds],” he said.

“Because, eventually, the technology of Bt corn may just become conventional. That means the chemical control of the technology would not be that effective and farmers would have to use more pesticides again,” Romero added. “They [corn crop] will now be susceptible to pests and would eventually result in lower yield. And if that happens, we may not even be able to meet our local demand for corn and much less, the chance of exporting it will not happen.”

The Monsanto official explained that the counterfeit Bt corn seeds sold in the market do not come with a “refuge” system.

A refuge system seeks to maintain the efficacy of the technology behind Bt corn seeds by mixing conventional seeds in every bag of the product.

These conventional seeds would keep pests unresistant to Bt corn as they would serve as food for insects such as corn borer.

Without the refuge, Romero argued, pests may develop sooner or later a resistance to Bt corn and would eventually eat them, as well.

“The early failure of the technology would result in faster development of resistance by pests to Bt corn,” he said. “If that happens, then we are going back to conventional seeds. Then farmers would have to do a lot of chemical spraying again. It’s like going back to zero.”

If this problem is left unchecked, then the number of farmers using these adulterated Bt corn seeds would continue to rise and may cause the demise of the technology within three to four years, Romero warned.

“The number will continue to increase as long [as these illegal companies] see that the government is looking the other way,” he said.

“If the government will not strengthen its regulation, then these companies will just be encouraged to continue to produce more.”

Constraint

Romero argues that there’s no strong regulation at the moment, that is why small players are encouraged to engage in this illegal practice.

Agriculture Undersecretary for Policy and Planning Segfredo R. Serrano is quick to point out that the issue of counterfeit seeds is not within the jurisdiction of the Department of Agriculture (DA).

“They want us to issue a cease-and-desist order [on these counterfeit seeds]. But we do not have the power to issue such order,” Serrano said in an interview.

“We do not have a law-enforcement power,” Serrano added. “We only say that this product is safe, this product is registered as a regulated product and is part of the approved list.”

However, unlike the Department of Trade and Industry, we cannot go after these companies producing counterfeit seeds, he explained. “Motu proprio, that is not within our scope.”

Serrano pointed out that once seeds are sold in the market, everyone could already breed them on their own. “In the Philippines you cannot patent living organisms.”

Under the Sida, the government, particularly the DA, could only apprehend distributors who sell “unlawful seed lots.”

The Sida defines unlawful seed lots as those displayed for sale and infected with pests and/or diseases and those that are sold with false documents and certifications.

The Sida does not have any provision covering other types of seeds, including hybrid and those developed by biotechnology.

Compliant

Agbagala said the least that the BPI can do is to issue a list of approved GM corn seeds for propagation or commercialization.

“There is no law [that] we could use as a basis to take action against these companies,” she said. “The least we can do and what we did actually during the time of Assistant Secretary Paz J. Benavidez II and Director [Vivencio R.] Mamaril was to issue an approved list of Bt corn products for propagation or commercialization.”

The list, Agbagala said, was meant to inform buyers and farmers of the registered and authorized Bt corn seeds by the BPI. “It would make them think twice if they want to buy those seeds offered by other companies.”

Last March, BPI OIC-Director George Y. Culaste issued a memorandum containing the updated list of GM-corn events approved for propagation by the agency.

This is to ensure that all parties concerned strictly comply with proper product stewardship of GM corn and other relevant policies, Culaste said in the memorandum dated March 16.

“The BPI shall conduct regular monitoring and any noncompliance with existing rules and regulations will be dealt with accordingly,” Culaste added.

Under the list, the companies authorized to sell Bt corn are: Syngenta, Advanta, Monsanto, Pioneer, Bioseed and Asian Hybrid.

Court

What legitimate GM seed companies could do, Serrano says, is to seek legal opinion, particularly the possibility of amending certain laws overseeing the industry.

He advises these companies to take their complaints to the court as indicated by law.

“We told them that they file a case in the court against these people. But remember under our laws, farmers can retain seeds,” Serrano said. “Nothing prevents the farmers from performing breeding work.”

Navarro echoed Serrano’s statement, adding that no one is stopping farmers from breeding the seeds on their own. However, marketing or selling the seeds they breed is a different matter, Navarro argued.

“The challenge really lies in the government, particularly for the BPI. Because a farmer can make that in the field and there is no problem about it,” he said.

“But if they are going to sell it, that is a different issue already. Selling it would be already illegal. While they can do it, breed it and plant it on their own, they cannot sell it as they must undergo the process of BPI,” he added.

Asked whether his group promotes a particular brand of Bt corn seeds, Navarro said the agency can only make suggestions.

“We only make suggestions based on the adaptability of seeds in their areas, because not all seeds can grow in all types of area,” he said. “We can only make suggestions among the members of our group, but we cannot impose specific brands on them.”

Under the Plant Variety Protection (PVP) Act of 2002, the right of farmers to “save, use, exchange, share or sell their farm produce” of a certain variety protected by seed companies is enshrined.

This means that small farmers could undertake breeding work of seed varieties given that “the purpose of reproduction” is for sale “under a commercial scale.”

The PVP law allows companies or entities, which own certain varieties, to go after people who are reproducing their protected seeds illegally by filing cases in court.

Call

Asked if Monsanto will file a complaint before the court against seed companies counterfeiting their products, Romero said, “I think it is part of the right of the technology owner to do that.”

“But the stand of Monsanto is to license. Monsanto is not selfish with its technology and Monsanto is open to parties that will be compliant [with government rules],” Romero added. “We would rather share the technology with the companies as it would be a win-win partnership.”

However, seed industry stakeholders are calling for the amendment of the Sida in order to address the challenges they currently face.

“There is a gap in the current regulations or policies that oversee the seed industry. The Seed Law does not specify what comprises illegal seed practices,” Philippine Seed Industry Association (PSIA) President Mary Ann Sayoc told the BusinessMirror. “It states something about unlawful seed lots, which only refer to infected seeds.”

Sayoc disclosed that a technical working group (TWG) has been created, with representatives from BPI and the seed industry, to review the Sida.

The outcome of the TWG would be the proposed amendments “that will give a stronger legal protection for seed companies and farmers affected by illegal seed practices.”

“The [PSIA] does not tolerate any form of illegal seed practice, including selling of counterfeit seeds. Seed is the most important input in crop production,” she said.

“Selling counterfeit seeds deprives farmers of their livelihoods and lowers their productivity. Those unscrupulous persons resorting to illegal seed practices are misleading and exploiting farmers. They place farmers’ livelihoods and families at risk and decrease the overall capacity of sustainable food/crop production,” she added.

One of the proposed amendments of the PSIA to the Sida is to include “all types of seeds,” including open-pollinated, hybrids and seeds developed through biotechnology.

“The Seed Act should be harmonized with the PVP law,” said Sayoc, who is also the public-affairs lead of East-West Seed.

Romero supports Sayoc’s statement, adding that “the industry has matured already and we already have a wide range of seeds that should be covered by law.”

Edilberto M. De Luna, executive director of CropLife Philippines, said his organization is throwing its support behind the amendment of Sida, particularly strengthening the powers of the BPI to curtail the illegal practices in the seed industry.

“The problem we are seeing is that the existing policies, regulations and laws are not clear with their scope on the industry. We believe that there should be a clear regulation that would address the proliferation of counterfeit seeds,” De Luna, a former agriculture assistant secretary, told the BusinessMirror.

“We are supporting the amendment to the current Seed Act and proposing that there should be explicit provisions in the law dealing with seed counterfeiting and mislabeling for us to address the present policy gap,” De Luna added.

De Luna revealed more bad news: they learned that it’s not only GM corn seeds that are being counterfeited in the market today; hybrid vegetable seeds are now also the target of fakers. “So this is the magnitude of our problem.”

Congress

At present, two bills are pending in Congress that seek to improve or amend the present Seed Act: one in the House of Representatives and another in the Senate.

Deputy House Speaker Rep. Sharon S. Garin of AAMBIS-Owa Partylist filed House Bill 3535, which aims to strengthen the law-enforcement powers of the government, particularly the BPI, in seizing illegal seeds in the market.

“Although the law is an essential measure to the development of the seed industry, it is opportune to revisit the 22-year-old law in order to adapt to the needs and realities of the bureau and the agricultural industry,” Garin said in the explanatory note of the bill.

“This bill aims to propose amendments to a two-decade-old law to further bring high-quality seeds and planting materials to the farmers,” he added.

The bill has two objectives: to expand the police powers of the BPI in apprehending illegally labeled seeds and to impose higher penalty on violators of the law.

“RA 7308 limits the power of the executive director of the BPI to confiscate the seeds which are illegally labeled, identified or imported and apprehend the owners or sellers,” she said.

“RA 7308 mandates a fine of not more than P10,000, which is notably very low due to inflation,” she added. “The current penalty no longer discourages the commission of the offense, and in fact, enhances the violation of the law because of the very small fine imposed.”

Garin’s bill seeks to add provisions to the Sida which would give a concrete definition of false documents and increase the penalty to P50,000, among others.

Meanwhile, Sen. Cynthia A. Villar filed Senate Bill 322, which seeks to set up a “continuing national program for hybrid and other quality seeds production.”

Villar’s bill doesn’t seek to amend the present Sida but aims to complement it.

“Despite the passage of Republic Act 7308, otherwise known as the ‘Seeds Industry Development Act of 1992,’ there is still a need to promote comprehensive quality seed production to farmers and farmer organizations by developing and propagating quality seeds for them,” Villar, who chairs the Senate Committee on Agriculture and Food, wrote in the explanatory note of the bill.

“The establishment of a seed production program will greatly enhance farm productivity by providing farmers with quality, hybrid and affordable seeds, as well as the needed technical and other support services. This should include production of quality corn seeds and high-value crops, as well as the needed technical and other support services,” Villar added.

Crafting

Agbagala admits that it is also time to amend the Sida.

“The BPI is supporting the amendment of the law to protect the technology,” she said. “It is high time to make amendments. Seeds are evolving and there are now a lot of varieties, which are not included in the present Seed Act.”

Sayoc said the initiative to amend the Sida came from Villar herself.

Sayoc also said the TWG has met thrice already and is set to meet for the fourth time next week.

She added that comments and proposed amendments were solicited from the other organizations. Aside from the BPI, PSIA and Crop Life, these include the Philippine Rice Research Institute, Southeast Asia Regional Initiatives for Community Empowerment, the Food and Agriculture Organization of the United Nations and the University of the Philippines-Los Baños.

Sayoc added the proposed amendments will be presented to the National Seed Industry Council in October and the final draft will be submitted to Congress/Senate in December this year.

De Luna said the seed industry will actively lobby with lawmakers to get their support on the impending amendment of the Seed Act.

“Of course, we will support [the amendment of Sida] and even advocate for enforcement powers [of BPI],” Romero said. “We know the limitations of the present regulation. That’s why we will support [actions] to strengthen their regulatory powers.”

Until then, the farmers must continue to live with the perils—to their bottom lines and the consuming public’s welfare—posed by such massive counterfeiting.

Image Credits: Nonie Reyes

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Jasper Emmanuel Y. Arcalas is a graduate of the UST Journalism School (Batch 2016). He currently covers agribusiness for the BusinessMirror. He joined the news outfit in August 2016.