At the Southern Ag Research Center near Huntley, Mont., MSU breeders develop new varieties for Montana growers. The start of PVP laws in 1970 incentivized breeders to develop top-notch varieties. As times have changed, more litigious agreements have been added to seeds and growers are cautioned to double-check their seed labels before replanting. 

2019 was a challenging year for farmers. Trade wars affected markets and commodity prices, hardships where faced during planting and harvest, and many farmers rounded out the year with poor yields. Despite the challenges, 2020 came around just the same and as winter melts into spring, farmers must now look ahead to planting decisions.

For farmers staring at a bins filled with last year’s grain, it may be tempting to reduce input costs by cutting seed expenses. Growers are cautioned, however, to have a really good understanding of Plant Variety Protection (PVP) laws, as well as Certified Seed Only (CSO) agreements, before they plant held over seed.

PVP was established in 1970 and is federally mandated. The act simply wanted to give credit where credit was due by allowing public and private plant breeders to have exclusive control over the varieties they develop. Boiled down, PVP can be thought of as a patent with plant breeders or variety owners controlling production, distribution and marketing.

The PVP act came about as a way to incentivize plant breeders. The development of cutting-edge crop varieties is good for farmers and it is good for agriculture, but research is expensive. Under PVP, plant breeding programs receive royalties when their variety is purchased and that money can be used in turn to help offset expenses. 

Under penalty of federal law, seeds under PVP cannot be illegally sold or bartered for, and conditioning facilities can be held liable if they clean seed that is suspected to be sold illegally. PVP law draws a hard line, with the only exception being: farmers are allowed to save seed for planting on their own personal land, either owned or leased.

“This has been the main law. When growers think, ‘what can I do with my seed,’ they think PVP. This is federal law, so it is something that they have to follow. If farmers have a violation, USDA comes into play,” explained Heather Unverzagt, director of the Montana Seed Growers Association.

Farmers have grown familiar with PVP and understand the serious repercussions that could come from not following the law. However, Unverzagt went on to say, things have changed over the past 10 years and now farmers must be aware of CSO agreements, also commonly referred to as single-use seed agreements.

CSO agreements are contractual agreements between the buyer/farmer and the company which owns the seed. CSO agreements contend that the farmer understands the seed was purchased solely for planting and producing a single crop. CSO agreements categorize new varieties as intellectual property, similar to like a movie or book. Plagiarism is illegal, as is replanting a seed that has a CSO agreement attached.

“Seed with a CSO agreement is not to be resold or used for any seed purposes. Growers can keep the seed in their bin, but it can only be sold to an end-use facility,” Unverzagt explained.

The caveat with CSO agreements is they are strictly civil, unlike PVP which is federal law. Beings as CSO agreements are contracts, they are legally binding, so there are no excuses and companies are within their rights to enforce legal proceedings if a farmer is caught planting seed that has a CSO agreement attached to it.

Since CSO agreements are not law, it may seem tempting to skirt around them, especially since producers must be “tuned in” to the seed company for any actions to be taken. Cort Jensen, attorney for the Montana Department of Agriculture, warns producers that undermining a CSO agreement is not worth the risk.

“It just takes one person with a really good motive to throw you under the bus. When you show up to the grain elevator with a variety they didn’t sell you, and you are offering to sell it, they are going to have some questions about where you got that seed,” Jensen pointed out.

It may seem overwhelming for farmers to try and keep up-to-date with all the varieties that could have CSO agreements attached. Unverzagt says, growers can reach out to their seed dealer or a seed company representative if they have any questions regarding a specific variety. When in doubt, growers can call the Montana Seed Growers Association and they will at least be able to point you in the right direction.

“Check before you plant back. Check before you have anything custom cleaned. Just protect your farm and your investments,” Unverzagt concluded.

Economic stress can be troubling, but both Jensen and Unverzagt advise producers to not compound their issues by violating PVP laws or CSO agreements. Make sure and always talk with the company who sold the variety first, before you plant.