The most counterfeited products are fashion goods, electronics, drugs, auto and aerospace parts, to name a few. Now even the seeds, particularly of genetically modified (GM) crops such as yellow corn (Bt corn) are being counterfeited by the unauthorized incorporation of proprietary biotech traits as registered with the Bureau of Plant Industry (BPI), into corn hybrids.
Bt corn is the only GM crop currently grown in the Philippines since 2003, after its approval for commercialization in 2002. The Philippines ranked as the top grower of biotech or GM crops in Southeast Asia and 12th-biggest producer globally in 2016.
The farm-level economic benefits of planting Bt corn in the Philippines from 2002 to 2016 was estimated to have reached US$724 million, and has benefited about 406,000 farmers and their families by an increase in yields due to being resistant to insect pests and weeds, and reduced production costs.
The BPI authorized Monsanto, Syngenta, Pioneer, Bioseed and Advanta to commercialize these GM corn hybrids. For the past few years, however, an increase in counterfeit seeds has been observed, and in 2017, the Bt corn cultivation decreased by 21% over 2016 figures.
LAWS RELATED TO SEEDS
Republic Act No. 8293 (IP Code of the Philippines) provides that plant varieties or animal breeds or essentially biological processes for the production of plants or animals are not patentable, but allows the enactment of a law providing for sui generis protection of the same. Excepted from this are micro-organism and non-biological processes.
There are two laws dealing with seeds: the Seed Industry Development Act (SIDA) of 1992 (RA No. 7308) and its implementing rules and regulations, and the Philippine Plant Variety Protection Act of 2002 (RA No. 9168) and its implementing rules and regulations. The offices implementing these laws are under the Department of Agriculture – BPI.
The SIDA was promulgated primarily to increase farm productivity by developing and propagating quality seeds thru a system of registration and certification aimed at “maintaining the genetic identity and varietal purity” of superior crop varieties. What is therefore being registered are seeds that have been developed embodying traits that give higher yields and are resistant to pests, disease, etc.
To fulfill this goal, The SIDA also restricts the importation or exportation of certain seed varieties, and has a system for the commercial release or discontinuation of the registered seeds. RA No. 9168 protects new plant varieties, which include seeds, and provides exclusive rights, by way of a Certificate of Plant Variety Protection, to plant breeders over the propagating materials of their protected variety to produce or reproduce, condition for purpose of propagation, offer for sale, sell, export, import and stocking.
Plant varieties apply to undergo field testing and substantive examination, and to be eligible the plant variety must be new, distinct, uniform, stable and must not have been sold, offered for sale or otherwise disposed of in the Philippines for more than one year before the date of filing of an application for plant variety. Except for trees and vines, the protection period for seeds and all other types of plants is 20 years from date of grant of the Certificate of Plant Variety Protection.
The SIDA does not expressly address the issue of counterfeit seeds. Seizure and condemnation is limited to unlawful seed lots, which, under section 20, refers to those displayed for sale infected with pests and/or diseases, or those sold with fake documents and certification, or imported seeds without the proper phytosanitary documents and customs clearances.
The Plant Variety Protection Act does provide remedies for infringement, but there is a need to obtain a Plant Variety Certificate first. There is nothing in both laws that prevent obtaining registrations from the SIDA and the Plant Variety Office, since the purposes of said laws are different.
Elvira D Morales, designate executive assistant and senior agriculturist of the National Seed Industry Council, says that under the Plant Variety Protection Act, the exchange and sale of seeds among and between small farmers is not an infringing act, so long as the small farmers may exchange or soil seeds for reproduction and replanting in their own land, except that they cannot sell it using the registered name of trademark of the holder, and if the sale is for the purpose of reproduction under a commercial marketing agreement.
EFFECT OF COUNTERFEIT SEEDS
Fake or adulterated Bt corn seeds are attractive to farmers because they are about 50% cheaper than the registered seeds. However, these fake seeds do not come with stewardship components, and in the long run the Bt corn can lose its ability to resist pests.
Morales said that the SIDA law is currently being reviewed for possible amendments, and Croplife Philippines has submitted its proposed changes to the SIDA’s Technical Working Group which plans to release its first draft for presentation to the lower house of Congress.
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