Here's What You Need to Know About "Brown Bag" Seed

We've all seen advertisements like this in the newspaper: For sale - Second generation oats for planting, cleaned with 90% germ.

Is it legal to sell what is often referred to as "brown bag" seed? In most cases the answer is "No."

The rules for selling seed produced on the farm are outlined in the U.S. Plant Variety Protection Act (PVPA) and are reinforced under Wisconsin seed licensing agreements. Recently, there have been some significant changes made to the PVPA in the form of Congressional amendments and a U.S. Supreme Court ruling. Amendments to the law went into effect on April 4, 1994. The amendment made it illegal, under any circumstances, to sell saved seed for planting purposes from varieties protected by PVPA after April 4, 1994. In the case of a variety protected previous to this date, a farmer can either sell or plant the amount of seed saved as long as an advertisement or other third party is not used to make the sale. This is true even if the seed is advertised without the variety name attached.

The most important change to the PVPA came as a result of a Supreme Court ruling handed down on January 15, 1995. The decision involved a PVPA infringement case between a farmer in Iowa and Asgrow Seed Company. Both the old and newly amended PVPA give a "farmer the right to save seed" of a crop produced from a protected variety. The court decision changed the amount allowed he or she is allowed to save. Prior to the decision, it was generally interpreted to mean that a farmer could save up to half the crop of a protected variety for planting. The Supreme Court interpreted the law to mean that a farmer could only save the amount of seed of a protected variety necessary to plant their own farm. This amount would be based on past production history.

So what does all of this mean for Wisconsin farmers? For public varieties protected before April 4, 1994 (for example, Dane, Horicon, Prairie, Ensiler, and Bay oats plus all wheat varieties), a farmer can save seed for planting on his or her own farm. If the seed is cleaned for planting and for some reason a decision is made not to plant the intended acreage, the seed may be sold but only by direct word of mouth. In the case of a variety protected after April 4, 1995 (for example, Belle oats), farmers can save the seed for planting on their own farm but cannot sell the seed for planting under any circumstances. There are no planting or selling regulations for varieties not protected under PVPA.

The PVPA is enforced by the Wisconsin Department of Agriculture, Trade, and Consumer Protection. Additionally, the Wisconsin Crop Improvement Association actively seeks out violations for Wisconsin developed public crop varieties. This is done by monitoring newspaper adds and making spot phone calls. Both the farmer selling the seed and the farmer purchasing seed in violation of the PVPA can be prosecuted for damages. Additionally, many private companies will act as a watch dog for their protected varieties and seek damages through the court system.

Finally, it is important to understand why PVPA laws exist. Quite simply, these laws help to perpetuate crop breeding programs at both public institutions and in the private sector. Without royalties from the sales of plant varieties, it would be impossible to support or finance a crop breeding program. The development of new varieties enable producers to reduce losses from crop pests and brings about improved quality and yield characteristics. Ultimately, both the crop producer and American consumer realize benefits from crop variety protection.