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 anyone
Other 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:

We can assure you there is plenty of work going on behind the scenes! http://wwwsarahnewton.org.uk/news/government-stands-british-gardeners 
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…)