India is in an ongoing legal battle over a potato, with the next skirmish set to come before Delhi’s High Court in late July.
On one side is PepsiCo, a food and beverage multinational armed with intellectual property (IP); on the other are farmers, and the Indian law designed to protect their seed rights. At play is the diversity of food on our dinner plates, and crucially, farmers’ ability to freely produce a variety of plants and their seeds year after year.
The battle all stems from India’s decision to forge its own path to protect farmers’ rights, but still comply with international trade laws. Using the flexibilities in World Trade Organization (WTO) rules on IP, contained in the TRIPS Agreement, India’s Patents Act considers plants, animals and seeds as inventions that are not patentable. When India chose to exercise the option in the TRIPS Agreement not to grant patents on plants, like many other developing countries it was shown the route of the industry-led UPOV Convention, which covers new plant varieties, as a possible way of remaining compliant with the WTO rules by providing some form of IP on plants. The International Seed Federation (ISF), representing the global seed industry, says the UPOV Convention is the most appropriate IP tool for plant breeders. It offers ‘plant variety protection (PVP)’, giving IP holders such as PepsiCo the exclusive right to reproduce seeds (unless national governments insist on farmers’ rights). When enforced under IP law and grower contracts, it can violate the rights of seed farmers. India chose another legitimate option available to WTO members: the sui generis way. It designed its own unique PVP law, which recognises farmers’ rights and regards them as breeders too. India is not a member of the UPOV Convention, but it is a member, along with 148 other countries, of the seed treaty, the international law that recognises farmers’ rights. India is co-chair of the treaty’s expert group on farmers’ rights, representing developing economies; the other co-chair is from Norway, representing developed economies. As India prepares to host another round of talks on the seed treaty in September, the PepsiCo case shows the importance of reviewing the influence of international trade laws against how governments design and implement farmers’ rights in their national laws. The intent of India’s lawmakers is clear from the farmers’ rights chapter they added to the national plant variety protection law more than two decades ago, recognising a farmer as a breeder as well, but also expressly wording the law to entitle farmers to “save, use, sow, resow, exchange, share or sell [their] farm produce”. These legally recognised farmers’ entitlements were extended to the seed of a plant variety that is granted plant variety protection under this law. This is also in line with the seed treaty. The farmers’ rights provisions were tested in the PepsiCo cases of 2018 and 2019. The Indian subsidiary of the US company PepsiCo filed cases in courts in the state of Gujarat alleging that farmers had violated its IP rights, granted under Indian law, over the potato variety from which it makes its Lay’s chips.
