An Agriculture Department letter warning the largest makers of corn, soybean and cotton seeds to double-check their compliance with labeling requirements is being welcomed by some groups as a step toward the agency’s goal for a fairer seed marketplace, while others would rather see the agency tackling other seed competition issues.
The Nov. 8 letter — sent by Agricultural Marketing Service Director Bruce Summers to the top six companies by market share in the corn, soy and cotton seed markets — says brand names "must be clearly identified as not being” a seed’s kind or variety name, and brands should not falsely claim to “add diversification” for growers. Labels also should not imply that a seed mixture is only a single or known variety. It also suggests that companies and their boards of directors establish “best practices” to ensure the requirements are met.
The Economic Research Service estimates that Bayer, Corteva, AgReliant, and Syngenta collectively represented 83.4% of corn seed sales between 2018 and 2020, while Corteva, Bayer, Syngenta and AgReliant constituted 78.1% of soybean seed sales. BASF, Corteva, Americot and Bayer represented 93.6% of cottonseed sales in those years, ERS researchers said.
Andy Green, one of Agriculture Secretary Tom Vilsack’s primary advisers on competition issues, told reporters that the point of the letters is to “remind companies” of their responsibility to clearly disclose what farmers are buying. He said farmers should be able to discern specifics about the product when they buy it, rather than waiting until the product is at their doorstep.
“This is particularly a growing challenge as there’s greater concentration in the market and less ability to sort of make those choices,” Green said. “It’s more important for us to make sure that the regulatory regime and best practices are really emphasized.”
The Federal Seed Act, which dates back to 1939, requires seed producers to label seed packages with their names and addresses, the kind and variety of seed being sold, and the number of noxious weeds per pound. They also must include purity and germination percentages in these labels, according to AMS.
“All seed has to have a label. It has to have required information, and it’s also supposed to be backed by robust documentation,” said Joel Cape, a lawyer who represents several seed companies.
Enforcement of the labeling requirements is jointly conducted by the USDA and states, several of which have enacted their own variations of seed labeling laws. State seed laboratories sample and test seeds traded within their boundaries, while AMS issues notices to suspected violators and begins administrative or judicial proceedings.
USDA administratively settled 36 Federal Seed Act cases between Sept. 1, 2021, and August 31, 2022, which resulted in seed companies agreeing to pay penalties ranging from $350 to $17,225. Alleged violations included mislabeling germination percentages, variety names, pure seed percentages or the rate of occurrence of noxious weed seeds. None of the companies involved admitted wrongdoing.
The letter follows a notice of trade the agency published on March 6 explaining the Federal Seed Act varietal labeling rules. A copy of the notice of trade accompanied each letter sent to the big seed companies.
Joe Maxwell, Farm ActionJoe Maxwell, the chief strategy officer for Farm Action, an advocacy group, said he was pleased to see the letter include questions about compliance protocols for company heads to present to their executives and boards. These questions, he said, will help the message permeate to the individual level, rather than just the company as a whole.
“We see this letter as having put the individuals on notice,” Maxwell told Agri-Pulse. “And we think that’s a powerful statement coming from USDA.”
Maxwell says USDA is following through on recommendations from a report it released in March under an executive order from President Joe Biden. He noted USDA also has created a system to allow farmers to file seed-related complaints and established a Farmer Seed Liaison to connect farmers and seed companies with the U.S. Patent and Trademark Office.
“We think we see USDA fulfilling these commitments, so it’s not a one-off,” Maxwell said.
Andy LaVigne, the president of the American Seed Trade Association, said in written responses to Agri-Pulse questions that ASTA’s member companies have sought to “strictly comply” with the Federal Seed Act since its passage in 1939.
LaVigne said ASTA informed its members of the notice of trade following its publication in March and hosted webinars with federal officials to “ensure its members were informed and had the opportunity to engage with AMS.”
“It is our understanding the issuance of the letter was not a reflection of any federal action against non-compliance related to the act,” LaVigne said.
Representatives of Syngenta, BASF and AgReliant Genetics confirmed their companies received the letters.
Erin Skly, the internal communications and employee engagement lead for Syngenta’s North American Seeds Division, did not specify what actions the company was taking to ensure adherence to seed labeling regulations, but said in an email that Syngenta ”complies with all laws, including state and federal seed laws and the labeling requirements set forth by the Federal Seed Act.”
“If a challenge arises, we make immediate adjustments and implement improved processes," he wrote. "We value our relationships with our farmers and are committed to providing them the best quality seed possible.”
Pace Sagester, a public relations manager for BASF, said in an email that the company “continually reviews all labeling, packaging and associated collateral and stripes to comply with state and federal seed labeling laws, including varietal labeling requirements.” In situations where “any inadvertent labeling error occurs,” Sagester said the company “takes immediate corrective action to maintain compliance with state and federal seed labeling laws.”
Betsy Bowman, the communications program manager for AgReliant Genetics, said in an email that AgReliant is “committed to compliance” with varietal labeling requirements under the Federal Seed Act.
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Todd Martin, the CEO of the Independent Professional Seed Association, told Agri-Pulse he's concerned USDA is placing too much of its attention on the Federal Seed Act and seed labeling, rather than other issues related to competition in the seed industry. He said most farmers could navigate branding differences on seed packages that contain similar or identical genetics by using varietal ID numbers.
“There are serious issues in competition and the USDA focusing on the Federal Seed Act and trying to say, 'Oh, you big companies, you’ve got to make sure that farmers know exactly what hybrid and variety are out there that they're buying’ is silly,” Martin said. “That's my frustration. This information is already on every bag of seed that is sold.”
Martin, in a public comment to the USDA last year, said the number of “major multi-national companies” involved in corn and soybean seed markets has shrunk significantly since 1992, dropping from 12 to four. These companies largely control the market for seed genetics, which are licensed out to other companies, including smaller independent seed processors.
This control over genetic information has resulted in a sensitive relationship between large seed developers like Bayer, Corteva and Syngenta, and smaller independent seed companies: the larger companies not only supply the traits the independent seed companies rely on, but also compete with them for business.
North Dakota Farmers Union President Mark Watne“I think that there’s an issue surrounding where we sit with regards to fair trade practices with the entire U.S. based on this licensing market where people are both a competitor and supplier to companies,” Martin said. “We need to closely look at and monitor organizations that are in that situation.”
Mark Watne, the president of the North Dakota Farmers Union, said the major seed companies' control over intellectual property is a concern for NDFU's members. He said prices for genetically modified seed have increased more than 700% between 2000 and 2015, which he said makes it "very hard for farmers to find ways to be efficient enough to afford that high-priced seed."
Watne said seed labels are important for farmers to ensure they are purchasing and planting seed mixes that work in their geographies. He added, however, that he'd also like to see Congress invest more in public seed research that introduces new alternatives.
Aaron Shier, the government relations director for the National Farmers Union, said NFU “appreciates USDA’s focus on increasing transparency and competition in the seed industry.”
“For farmers, it's essential to have choice and innovation in the seed space and the department looking hard at how to achieve that, especially given that consolidation in that industry, is important,” Shier said.
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Editors' note: A previous version of this article incorrectly said Todd Martin was CEO of the Independent Seed Producers of America. He is actually CEO of the Independent Professional Seed Association.
