So, two days, 150 or so retweets and 1000 page views later, I thought I’d update you re our campaign against the EU Plant Reproductive Material laws (see my earlier blogpost). If you’ve been dipping in and out on Twitter you’ll have noticed several UK nurseries expressing concern, as well as gardeners all over the UK wondering what’s going on. And they might well ask.
On my earlier post I pretty much wrote down what I’d read elsewhere, without really delving into the detail myself. This time we need to get into the nitty-gritty, as best we can. Dave has helped hugely, poking around in dark corners on the EU website to figure it out. So don’t give up on me here – it’s important that we figure out together exactly what’s involved. (I’ll come onto who should be doing this hard work instead of you and me later…)
Where to start
It’s clear that the proposals were originally drafted in relation to agriculture. Not hard to deduce – the big clue is that the original review document is filed under ‘food’ on the EU website.
The current proposed regulations are sited under Health_consumer. You can see where this argument is going. Somewhere down the line, ornamental plants have been sucked into legislation intended to be about growing potatoes and feeding people, not prettying their gardens.
Food plants v. ornamental plants
Modern agriculture needs certainty, consistency and proper legal redress. Costs to farmers are potentially huge if the variety supplied is wrong or doesn’t fulfil its description, and of course there is a potentially a public health issue here too. Some sort of legislation on varieties makes sense, and then of course you need exemptions for small scale production, heritage varieties and all that.
Ornamental horticulture is a different beast altogether. Yes, they are also plants and they are grown in the ground and so have historically fallen under DEFRA’s umbrella. (Actually, horticulture seems to have been spun off into the National Horticulture Forum which deals mainly with horticultural food production; strawberries, brassicas etc. and also ornamentals). But customers don’t buy ornamental plants from a written specification – they buy what they see (in real life or in photos) and like the look of. Diversity, difference, novelty, scarcity, being the first to pick up a new variety, collecting something they haven’t already got, – this is the stuff of horticulture. And it is the exact opposite of the uniformity required by agriculture.
So ornamentals are a small subset of horticulture, which is a small subset of agriculture which is what the legislation was originally aimed out. And it has very different needs. We ornamental hortics are down here, waving our Sanguisorbas about madly, lost in a mass of combine harvesters and potato picking machines. Righto.
Aims of the legislation
Still with me? Good – hang in there. The aim of the regulations is to bring together and simplify an old and large set of laws relating to SPPM (Seeds and Plant Propagation Material). The aims are excellent – reduce red tape, harmonise across EU, protect small business, encourage sustainability and increase choice. And if the proposals matched the intent, I would be a happy bunny.
The nitty-gritty
So – here’s my first pass it what’s actually proposed, as things stand now, for ornamental plants. This may change next week.
Existing plants.
1. If a plant has already been formally listed, it will be because it is covered by an existing PVR licence and nothing changes. You can’t propagate this plant and sell it. You can buy it from a licenced source, grow it on and sell it, labelled as it is. That’s exactly the same as now.
2. If the plant is in general circulation now but is not subject to a PVR licence, like Helenium Sahin’s Early Flowerer, say, then it’s much more complicated and very different (i.e. more onerous) than it is now.
No-one ‘owns’ this plant so let’s assume for the minute that no-one is minded to ‘file an ORD’ (see Graham Spencer’s clarification in comments’ below) under the EU’s ‘light touch’ proposals for traditional varieties. This is a reasonable assumption – there will be no rights in return for doing so, and significant potential cost/time involved in doing so.
If you are a small nursery (less than 10 employees and less than £2m balance sheet value) and you have this plant, you can propagate and sell it, labelling it as ‘Niche Market Material’. If your nursery is bigger than this, you can’t sell it, unless you or someone else registers it. So if you are a small nursery wanting to add this plant to your listing you won’t be able to buy it from a wholesale nursery until someone has filed an ORD for it. About 95% of the cultivars in the RHS Plant Finder aren’t currently registered for PVR and most of them never will be formally, botanically described to the standard currently required for an ORD for lack of commercial justification for the cost. This is why so many ornamental plants will fall from availability.
Once someone does pay to get this ‘traditional variety’ filed, then it’s fine – anyone can sell it. But taking our Helenium ‘Sahins Early Flowerer’ AGM, it’s currently available from 74 UK nurseries in the Plant Finder, both large and small. Who will file an ORD? No-one? Several nurseries separately? (There will be no central register of filed ORDs). The flowers tend to look a different colour as the season wears on and the height varies too depending on the soil. Whose plant will be the defintive one, and whose subjective written description will hold sway? I predict a paralysis of inaction as everyone waits to see what everyone else does and a massive loss of plants for sale as a result.
With me so far? Deep breath…
3. If you think you have bred a new plant…. At present, you can pay to register it under PVR and you are then entitled to receive royalties. Alternatively you can simply name your new plant, propagate it, include it in a catalogue or website and offer it for sale. If this seems a bit of a free for all, well it is, except that the only people who actually do this with any seriousness are nurseries who know what they are looking at and have an outlet to sell it. If it is of no interest no one will buy it, and if it is, then you can be sure that an expert will eye it up and tell you if you have it wrong.
Under the new rules you will have to file an ORD for a new plant, no matter how small your prospective market for it, or how big your nursery. Small nurseries will not have to pay a central fee, but they will need to go through a filing process for it and that will cost time and money. It seems that larger nurseries will have to pay. You can see large nurseries giving plants to small nurseries and offering them help to get it filed to avoid the costs!
Again, plants which would make it into circulation now, but lack the commercial potential to justify registration will be lost from the market.
So, what are the consequences?
Will the new laws reduce current ornamental plant choice? Yes. Hugely.
Will the new laws reduce the introduction of new plants onto the market. Yes. Of course.
Will the new laws damage the UK and European ornamental business? Yes, plainly, as night follows day. As the HTA website says, ominously, they would be ‘extremely damaging for ornamentals’. They should know, they are the trade body representing most of the Garden Centres in the UK.
Who is doing what about it?
This is where things get muddy. According to Graham Spencer, the following bodies are involved:
The HTA. Their concern about the legislation is plainly stated on their website, but their lobbying details are restricted to members only. That’s fair enough – they represent major Garden Centres. (Update – I missed the link on their website to a draft letter – click here)
Plant Heritage have been very active as you might expect – they represent plant collections held by large and small nurseries and are worried about loss of collections. They have a draft letter and a list of MEPs to send it to on their website.
DEFRA are heading up the representation of the UK’s position on this legislation. I can’t find anything on the DEFRA site on this proposed legislation, but then, ornamental horticulture is a very minor area for them.
Graham Spencer is a plant breeder/registrant. He’s very concerned about the proposals and is advising the HTA. He appears to be taking a very pro-active role with all the organisations above, trying to influence their stance. He has confirmed he is not being paid by anyoneOther individuals and minor organisations are also at the table.
But who is officially representing all the 550 UK nurseries that are not HTA members but which submit plants to the RHS Plant Finder each year and sell the plants that this legislation will affect? And who is representing the interests of the gardening public who will experience drastically reduced choice and higher costs for registered plants?
What about the RHS themselves? Good question. There is nothing at all on the RHS website. Nothing to say what the proposals are about and what the effects might be. As an RHS partner nursery I have received no direct communication letting me know what’s happening and what the laws might mean to me, if passed. According to Graham Spencer (see below), they are very actively involved in the negotiations. After asking a few times on Twitter, I got the following response:
The link takes you to a piece about an MP campaigning against legislation which would increase the costs of seeds. It’s not about plant naming and trading.
And later: We appreciate and value your concerns, and will share our position statement as soon as we can.
It seems unbelievable that 6 days before the deadline for amendments in the EU Parliament the RHS has no publicly available statement on this. I sent an email to my main RHS contact today to express my concern at their lack of communication on this. I’ve had no reply as yet.
So, instead of calmly directing people to the RHS website for a clear, factual statement, making it clear what it all means and what to do, people are relying on a small charity, Plant Heritage, for guidance as to how to write to their MEP and I’m sitting here at home with Dave, picking my way through EU documents, attempting to understand it for myself. Where I’m getting stuck, I’m relying on the patient explanations of another self-employed horticulturalist, Graham Spencer working on this in his own time, unpaid, unsupported by lawyers, etc. As the UK’s leading gardening body and home of the UK’s plant bible, it’s not really good enough, I’m afraid.
Lobbying MPs and MEPs works. I know that from the replies I’ve been getting from them that our letters really help them understand how their dry legislation will affect real people. And we can only lobby if we know what we’re arguing against and for and that’s why we need to understand and argue our case ourselves, not just assume that clever people somewhere else will be getting it right on our behalf.
Finally – Graham Spencer has published a blogpost tonight which explains what the campaigners are trying to achieve by way of changes to the regulations. Let’s hope he, the HTA, RHS, Plant Heritage and every one else involved succeed.
(Update – another tweet from the RHS has pointed me at page 8 of The Garden, November issue. This does say that The RHS is concerned about the regulations and talks about their work on the stakeholder group. But these days, people expect to find information on the internet, not by flicking through back copies of magazines. It should be on the News page of the website. The printed link in the magazine is to the legislation itself, not to a user-friendly RHS explanation of it.)
(Update: 12:10 29/11/13 Received an email from Raoul Curtis-Machin, head of the HTA. He provided the link to their template letter for people to use to write to their MEP (see above) and added ‘We are urging as many people as possible to do so, because even though we have already made representations to the EU experts directly and they agree that changes have to be made, the process dictates that changes have to come through member states suggestions. Hence the letter and the need to keep the foot on the gas.’)
(Update: 19:00 29/11/13. The RHS has posted the article from the November edition of The Garden on the News section of its website. Quite impressive that they’ve got this done on a Friday night. Someone must be a little bit rattled. It’s missing the ‘next steps’ section and still links to the raw EU documentation, not an interpretation, but hey, it’s a good start)
(Update 01/12/13. A message from Jenny Woods. I wrote a summary of the impact of the proposed regulations for her to give to Fiona Hall, leader of the Liberal Democrat MEPs. Feedback from Fiona says she’d heard about the impact on gardeners, but hadn’t appreciated impact on nurseries. So, it seems nurseries need to make themselves heard on this!)
(Update 02/12/13. The RHS has now posted a news item on its website, urging readers to write to their MEP about the proposed legislation. It does include a list of MEPs to write to. It doesn’t tell them what changes the RHS is seeking regarding the legislation, nor does it tell its readers what exactly to ask its MEPs for. But hey, progress…)
9 Responses to “EU Plant proposals – update.”
hi Sue – hope you don't mind me commenting.
RHS are really active on this. They are working to help DEFRA define the best negotiating position before the EC as part of the Council of Member States. I agree that they could do a bit more to mobilize the membership, but there have been two pieces in the Garden to date. But please do believe that they are active – I was in a teleconference with RHS, NFU, HTA and DEFRA just this morning.
Other bodies involved: NFU, IoH, Garden Organic, BPOA. A few other smaller organisations. Also several industry folk (growers, breeders, seed companies). None of us are being paid for our time, travel and resources. The bodies involved are paying for their staff out of their lobbying/campaigning budgets. So the membership fees we all pay to these organisations are helping in this campaign.
DEFRA are being really supportive. They are listening and RHS, HTA, Plant Heritage plus some of the individuals (particularly me and Martin Emmett) are really speaking up for small specialist nurseries like yours (I spent 15 years running a specialist Plant Finder nursery with my parents – I've been there!).
There is no exemption for small enterprises from most of the requirements of the Regulation. There is an exemption from fees. However, we expect that to be removed, largely because the system has to be self-funding (i.e. not subsidised out of general tax revenue) and so all governments work on a "user pays" system.
The niche market material derogation currently in the text is unworkable. We would like it to be removed and a better alternative put in place (i.e. exempt supply to gardeners).
There is no requirement for *registration* of varieties (outside of Annex 1). There is a requirement for an "officially recognised description" – it's a subtle but important difference. I understand that the media (and many in the industry) are calling it "registration", but it is not. We have to be careful, because that sort of error allows the EC to rubbish our campaigning, as they attempted to do with some of the early press coverage I helped to get in the Mail and Express (you've seen their response online, I think). Later coverage in the Telegraph and Guardian was better because they allowed me to write it (whereas the Mail and Express just love to euro-bash and don't worry about letting the facts get in the way!). I know these subtleties seem like pedantry, but this whole thing is full of subtlety and pedantry!
Finally, thanks for your support and campaigning on this. Public awareness is important. Even though the deadlines for suggested amendments to the ComAgri and ComEnvi reports are near, there is a long way to go yet. People should write to their MEP now and again later, as there will be a parliamentary vote in Brussels. I've explained the process (as I understand it) a little more on my own site.
Graham
Thank you very much for the comment Graham, and for your clarifications – I shall adjust my text accordingly. My reason for singling out the RHS is that they are the first and most trusted point of contact for most gardeners or nursery folk and I do think it is a big omission not to have any public statement on it. I have no doubt they are working hard on it behind the scenes.
The fact that you and so many others are working on this unpaid and in your own time is both extraordinarily good of you – and worrying. I assume the lawyers/bureaucrats drafting the legislation are very well paid indeed and will thus spend unlimited hours working on it!
Finally, when you say 'a requirement for an officially recognised description', if it is required and must be officially recognised, would it not be fair to describe this as a form of registration?
Thanks for your praise Sue – I hope to be rewarded for all this in the next life. No, actually, I don't want to wait that long!
ORD is distinct from registration in that there is no central "register" (which there will be for Annex 1 varieties which *do* need to be registered). In fact, because the ORD can be on a "private list", it may not even be published – just sitting in a filing cabinet somewhere. But you need to have it (or have access to it) because there is a requirement in the regulation for inspection by the Competent Authority (i.e. DEFRA). The Competent Authority can be penalised (fined) for failure to enforce which would come out of our taxes.
We actually want to improve things a bit – we think the information should be *published* (either on paper or online) but much less detailed. So, a plant will be common knowledge if it has been in your catalogue. Or if it has been in a reference book. Or someone else's catalogue. Obviously, new things can't be common knowledge, by definition, so they will have to be written about when they are launched, either on paper or online, in some publicly accessable way (a catalogue or website would do). Which is something we do already (if people aren't writing about their new plants, why on earth not??). But the requirement for this ridiculuosly long (and quite useless) ORD will go – if we (and DEFRA) get our way.
Another campaigning line – we need support in other countries in the EU. So, if people have contacts with growers and enthusiasts in other countries who would be sympathetic to the cause, let them know! We stand more chance of getting the amendments approved if more governments support the amendments. Contact has already been made with Swedish, Dutch, German and Danish growers and grower groups, plus some government bodies, but we can never have enough!
Thank you Graham – I shall update my wording accordingly. Makes perfect sense and seems eminently reasonable. As it happens, I was at a gardens conference in Ferrara, Italy three weeks ago. The Austrians, Germans and Italians on our table had only just heard about it and we discussed it extensively. I've been in touch with Arno Rijnbeek too and I know he knows of your work, so well done
Finally, if I can be of any help – wheeling out tame(ish) small nursery owner for human interaction etc. then I would be more than happy to do so.
Actually – one more question. Why will there be a cost for an ORD? Won't it just be a case of the owner/breeder writing it in their own words? Or will someone 'official' have to approve the description, thus incurring costs?. Appreciate this is 'as things stand' and not how you are seeking to have it end up.
The best interpretation of the draft law is that ORD will need to be a botanical description of great detail. We anticipate that most nurseries would outsource writing this document for each plant that needed it because (a) they may not have the skills within the organisation to write such a detailed description and/or (b) they won't have the time to write so many descriptions. The cost we have publicised (and which is the basis for estimating the financial impact of the regulation) is based on the fees charged for writing this sort of description by the very few companies that offer such a service – we do it here, plus I know of a company in the Netherlands that does it and a couple in the US. It's not a widely-offered service.
Owner/breeders of new varieties may well write their own description. These documents tend to follow a general standard format (if you search for "plant patent" in Google, you'll find plenty of examples).
Personally, I hate writing botanical descriptions. It takes hours (up to a day) and involves taking measurements (size, shape, colour chart, etc) over weeks or months from living reference material. That's why I charge £400 to £500 to do it. Our Dutch and American friends levy a similar charge.
Excellent – thank you Graham. All clear now (as much as it can be!)
Hello Sue
Thanks for extending awareness on this and taking the time to satisfy yourself that this issue deserves as much attention as possible.
Kind regards
Martin Emmett
hi
Hardy plant society sitting on fence, wait and see attitude…very weak. Brian
Brian Simpson MEP Totally gets it. Great letter from him
Where is the national outrage?
RHS….Hmmmmm