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UPDATE – the deadline for responses to the ComAgri report has been extended to December 11th (deadline for ComEnvi remains December 10th) – so keep up the letter writing to MEPs. I’ve heard this week that MEPs have typically received around 200 letters and emails on this subject, so they know that there are votes in it. I’ve also had confirmation that just about all the amendments that we want are to be tabled – if they all get through, then we will have a Regulation we can work with.

Many of you will be aware that we have been very active recently on the new European Commission proposal for a Regulation on the marketing of plant reproductive material (PRM). This is a Europe-wide problem that could have serious adverse effects on our industry. You can find the text of the proposed Regulation by clicking here. Be warned that it is a long document and not light bedtime reading!

The regulation forms part of a package of new Regulations which are intended to replace existing Directives and Regulations (Directives have to be implemented into national legislation by Member States and can therefore vary from country to country depending on local interpretation, whereas Regulations are uniformly applied across all Member States * ). The intention of the Regulation is to drastically reduce the amount of legislation that applies (we always approve of that) and to reinforce consumer protection and the traceability of plant material.

However, the Regulation as drafted goes beyond simply replacing existing legislation and extends the legal framework to areas not previously reached. In addition, we find that the British horticulture industry has not been very good at being compliant with existing legislation and that will have to change (for example, in the area of labelling, identifying lots and traceability – our Continental counterparts are generally better at this than we are).

Current legislation allows growers and nurserymen to sell any ornamental plant variety by name if that variety is “common knowledge”. Common knowledge is taken (at least by the UK authorities) to mean any plant variety that has appeared in a catalogue, website, magazine or reference book with the variety name and some sort of brief description (which might be as short as “pink flowers in May, 30cm tall”).

The new Regulation removes this possibility and requires that any named variety has an “officially recognised description” (ORD). The regulation says that the ORD must include the specific characteristics of the variety and make it identifiable. The UK trade, together with DEFRA, is of the opinion that the ORD will need to be a very detailed botanical description. For example, consider the lavender variety Hidcote – a very widely grown variety. It is one of more than 300 varieties of lavender that are sold in the UK. In order for the variety to be identifiable from the ORD, the ORD would need to include details as small as the size and colour of the hairs on the leaf.

To write an ORD will require an experienced person with access to plant material of the variety. We offer a description writing service to PFE’s customers (we have to write something similar for US Plant Patent), but charge £400 to £500 per variety (except where we are acting as licensing agent). It is a task which can take a day or more. It requires measurements to be taken when the plant is in growth, in bud, in flower and in seed – so needing many months of observation. The resulting description can be two to four pages long.

With at least 50,000 plant varieties requiring ORD (some estimate up to three times that number), the burden on European horticulture could be immense. But, if this regulation becomes law, without such ORD a variety may not be sold. (It isn’t the same as a full registration process, but is so much like registration that many people are calling it that). Many growers will look at the cost of this and simply decide that varieties which sell in only modest numbers are just not worth the hassle and cost, so they will be deleted from catalogues. The result will be a reduction in choice and diversity, with the loss of many older varieties forever.

In addition, some genera and species (listed in Annex 1 of the text) are subject to a higher degree of regulation and would require full registration, including DUS examination similar to that required for Plant Variety Rights. These crops are mainly food, fibre, fodder and forestry crops, but include a large number of ornamental plants (such as Quercus, Fagus, Rubus). In addition, some herbs are included (such as parsley and chives) whilst others are not (such as coriander and basil). The Regulation grants powers to extend the scope of Annex 1 to any plant that is grown in “significant” volume or by a “significant” number of operators, without much in the way of consultation.

We grow a wider range of plants in British gardens than in gardens anywhere else in the world. We have a long heritage of both innovation with gardens and garden plants and conservation of interesting and valuable heritage varieties. If this proposal becomes effective, that heritage will be threatened, diminished or lost.

The proposed extension of powers is unnecessary and disproportionate. Gardeners, growers, plant breeders and conservation bodies must come together to campaign and lobby for the rejection of this proposal. If we don’t, our gardens may never be the same again.

 

What next?

The legislative process for this Regulation is long. Our best estimate is that it will become law in 2016 with an effective date in 2018, although it could be up to two years earlier than that if the legislative process is expedited. It has just completed the first stage of the committee process with both the agriculture (ComAgri) and environment (ComEnvi) reports published (click for PDFs). The former makes some minor improvements and some revisions that worsen the impact. The second is largely a disaster and would make the burden even more onerous on British horticulture. Comments on these reports must be submitted by MEPs before December 4th and 10th respectively. However, this is not the last opportunity to change the Regulation. The Member States in Council are still reviewing the draft text and have only yet reached Article 89 in their first reading (there will be at least two readings) and are a long way from proposing amendments – the UK is represented in Council by civil servants from DEFRA who are being very proactive on this issue. The Regulation will require the approval of the two committees, the full Parliament and the Council before it becomes law. However, we should use all these opportunities to press for the revisions that we feel are necessary.

We have now begun to draw up a list of the most important changes that we wish to see implemented. These are as follows:

  • explicity remove ornamental plants currently covered by Annex 1 from the scope of that Annex and from the requirements of Title II. This would require amendments to Articles 11 and 47. The ComAgri report makes proposals to this effect, which we would endorse (although DEFRA has a better text).
  • simplify requirements for non-Annex 1 plant material sold under a variety name (Title III). This would require amendment of Article 50. We anticipate that the ornamental use of Annex 1 plant material would also be covered by this. ORD is too strict a requirement and will unnecessarily increase costs without benefitting consumers. Article 50(c) should be replaced with a new text introducing assurance through traceability, with the producer having responsibility for identity of the variety. A new Article 50(d) would reintroduce the idea of “commonly known”, as is the current legislation and practice, but would explain the meaning of “commonly known” to avoid confusion and facilitate interpretation and implementation. New varieties would simply need to be described by the first nursery to offer them, simply by publishing an ordinary description with the name in a catalogue or online – which is just what we do when we launch a new variety at the moment.
  • put all PRM sold to gardeners outside of Annex 1. At the moment, any sale of Annex 1 material, even by a supermarket (such as pot-grown parsley), would require burdensome administration which, frankly, is never going to happen in your local Tesco.
  • simpler registration requirements for existing varieties of Annex 1 plants already in the market on the date the Regulation comes into force, by means of ORD. This would require amendment of Article 57 and would ensure that existing varieties and heritage varieties of Annex 1 plants are not lost as a result of this Regulation whilst ensuring consumer protection.
  • deletion of the niche market exemption (Article 36) provided PRM sold to gardeners is outside of Annex 1 (above). The niche market exemption (for Annex 1 material) is so hard to define – the draft text bases it on geographical reach when, in fact, the audience may be small but widely scattered (as is often the case with specialist varieties). Removing the exemption altogether protects the consumer but allowing sales to gardeners still permits small businesses to operate to supply the specialist market. If a variety then becomes of interest for large scale (e.g. supermarket) production, then it should be covered by the normal Annex 1 provisions in the same way as any other variety.
  • opposition to the ComAgri amendment 16 and ComEnvi amendment 11 to Article 2(d) on the exclusion of non-statutory plant genetic resource networks (and ideally the deletion of “solely” from Article 2(d)). The amendments suggested by ComAgri and ComEnvi would have a serious impact on the conservation work carried out by nurseries and other organisations and individuals under the various National Collection schemes across Europe – the preservation of genetic resouces, particularly of garden plants, is not an activity limited to statutory bodies such as the Royal Botanic Gardens. (This is not just a UK/Plant Heritage problem – PFE works extensively with the Dutch national collections of Lavandula and Salvia which are held by a nursery near Maastricht. Similar collections can be found across Europe.).
  • revision and clarification of the definition of PRM to exclude “finished plants”, as proposed in ComEnvi amendment 13 of Article 3(2). As it stands, the definition of plant reproductive material is unclear (what exactly is an “entire plant”?) and could be interpreted to include all plant material up to the point at which the final purchaser plants it in the ground. We don’t believe that this was the intention of the authors of the text, so it should be clarified. Doing so would take many retailers (e.g. supermarkets, garden centres) out of the scope of the Regulation.

In addition, there are several other lesser amendments required to reflect the changes listed above and to further reflect current practice and legislation.

 

What can I do?

Lobby your MEP! Plant Heritage have put together a very useful list of MEPs on the ComAgri and ComEnvi committees (along with a template letter), but you could also write to your local MEP, even if they are not on this list. Although the last date for comments on the ComAgri and ComEnvi reports is very near, there is still good cause to write, as there will have to be a full vote of the Parliament in due course. If MEPs realise that there are votes to be won/lost in this, they will soon become active on the issue.

We also need support in other EU countries. To have more chance of getting our amendments through, we need the governments of other Member States to take a similar line. There has been some contact with growers and grower groups in the Netherlands, Germany, Denmark, Belgium and Sweden, but we could certainly do with more contact and awareness in those markets. Please pass this information along.

In addition, please feel free to refer others to this blog post. Thanks for reading right to the end.

 

* – for those who think “we’re better off out of the EU”, consider this: if the UK were not a member of the EU, this Regulation would still apply to us. It covers all imports and exports from the Union. A vast amount of plant material grown and sold in the UK originates in or passes through the European Union on its way to our nurseries, supermarkets and garden centres and would have to comply with this Regulation. However, if the UK were not a Member State, our government and civil servants would have no say in the way that the law was drafted and implemented – we’d just have to lump it. As it is, the UK government in the form of DEFRA is being very active in representing and defending the interests of British horticulture, working closely with the RHS, HTA, NFU, Plant Heritage and many other bodies, as well as individuals and businesses including PFE. To leave the EU would be a disaster for British horticulture.