By Mary-Howell R. Martens
When the USDA National Organic Program became law in 2001, organic farmers were faced with a new unwelcome requirement for which we were almost completely unprepared.
Section 205.204 declared that we must use certified organic seed unless it was not commercially available in the quality, quantity and variety needed. In 2001, there was very little organic seed available, the seed quality was often poor, genetics limited, and for most varieties of field crops and vegetables, it was simply not available. Did that mean we had to stop growing most of our familiar varieties? What were we going to be allowed to grow? Those were rather alarming questions in 2001.
Ah, but those loopholes! The acceptance of the ‘quality, quantity and variety’ variance was generous and actually quite essential. With few questions, certifiers accepted our explanations and our questionable ‘seed searches.’ We planted mostly conventional untreated seed, the organic grain and food supply continued growing, and life went on.
Gradually, the requirement incentivized new organic seed companies to form, existing seed companies to diversify into organic product lines, and farmers to engage in seed saving on small and larger scales. Slowly, the availability of organic seed improved.
A few companies like Albert Lea Seed, Blue River Hybrids and High Mowing Seed initiated breeding programs to develop varieties that were uniquely well-suited to organic conditions, while other companies like Fruition Seeds and Row 7 cooperated with public university breeding programs to bring new varieties and interesting experimental breeding material to sale. Venerable established vegetable seed companies, like Harris Seeds, Fedco, Johnny’s, Burpee and Bejo, added organic product lines. There is a thriving cooperative trade between seed companies, so Hudson Valley Seed Company will sell oat seed obtained from our farm, Lakeview Organic Grain, and medium red clover seed that has gone through at least three transactions before arriving in their small packet retail sales. On our farm in 2019, we built a modern seed and grain cleaning facility. Operating as Seneca Grain Cleaning, it has allowed us to grow, clean, bag, store and sell organic small grains like wheat, oats, barley, rye and legumes like peas, dry beans and lentils to be sold as seed through Lakeview Organic Grain or as food-quality grain through Seneca Grain and Bean.
Twenty years later, the organic seed industry is well-developed and is starting ‘to mature, which means it is starting to consolidate. Albert Lea has merged with Blue River (see A-10), and no doubt we will see mergers of some of the small vegetable seed companies within the next few years. This is not necessarily a bad thing. Combining and upgrading facilities to improve seed production and handling, taking advantage of economies of scale for distribution and promotion, and eliminating unnecessary duplication of genetics can make for a stronger, more transparent seed supply for farmers. Of course, that comes at the expense of competition, that great incentivizer, but this industry is still quite young and tender. It is time we must move into the next phase of professional development.
Gradually, certifiers have started putting a few wobbly teeth into the enforcement of this requirement. Consequences for evasion are still far from a serious deterrent, but loopholes are shrinking and most organic farmers are putting effort into sourcing a greater proportion of their seed as organic.
DE-MYSTIFYING A SEED LABEL
The label on a bag of certified organic seed is a complex legal document carefully designed to satisfy multiple requirements. The New York Seed Law and the Federal Seed Act, as administered by the New York Dept of Ag and Markets, specify the information that must be on the seed quality portion of the label, while the USDA National Organic Program, as administered by certification agencies, specifies the information that must be on the organic portion of the label. Seed companies may include additional label information to describe the variety, offer valuable agronomic tips, or cover their own liability.
Seed test quality results must be clearly visible on each bag or packet of seed. Some companies sew or stick the label to the bag, while others stamp or print this information on the bag itself. Regardless of how it is attached, the purity (% pure seed and % contaminants) and the germination of the seed must be clearly legible, along with the seed lot number for traceability, the seed company and its address.
Purity - New York law requires that seed companies identify the composition of the contents of the bag, both the intended crop seed and any contaminants such as weed seeds, other crop seeds and inert material (broken seed, chaff, or dirt)
To obtain this information, New York Ag & Markets recommends that seed companies pull a composite sample of each seed lot using a standard technique developed by AASCO (American Association of Seed Control Officials) to ensure that an adequately representative sample of the seed is evaluated.
When a seed sample is analyzed, weed seed and other crop seeds are identified to be "noxious " or not. A low percentage of most weed species is tolerated, but some common weeds are considered so undesirable that they are termed “prohibited noxious weeds” and are not allowed in commercial seed. Other less undesirable weeds are termed “regulated noxious” and must be identified separately on the label. Weeds can be considered noxious because they are difficult to remove from small grains after harvest (vetch, wild onion and garlic) or because they are invasive, overly competitive, or toxic to animals (corn cockle). Any farmer/processor who has battled to get vetch, cockle or garlic seed out of small grains after harvest can understand why it is much better to avoid having them in the seed lot!
In a seed mixture, like a pasture or lawn mix, all component species must be identified on the label as % of the total by weight with their separate germination rates. The seed label should also include the state or country of origin where the seed was grown and the total weight of the seed in the container.
Germination - all bags, packets and bulk seed sold in New York must state % germination and a test date that is within 9 months of the date of sale. This does not mean that all seed sold must be fresh 'current year' seed, which often is not. If seed is carried over from a previous year, it must be re-tested in the calendar year of sale and tagged with the current germination rate.
This germination labeling requirement applies equally to seed sold by a farmer dealer, from a seed company or Walmart - this is New York state law. New York has requirements for minimum germination for most species, below which the seed must be clearly labeled as inferior quality. New York Ag & Markets employs seed inspectors to visit seed companies, farmer dealers, and retail stores throughout the season to take random samples and send them to the NY Seed Lab in Albany. The results are matched to the stated information on the label, and if there are discrepancies, the seed company is required to re-tag or, in severe cases, stop selling the seed.
Seed companies are allowed to put additional information on a label, such as seed count, seed size, planter plate recommendations, days to maturity, inoculant date, and agronomic suggestions.
Organically Certified Seed
The label or bag for certified organic seed must contain several other key pieces of information to meet USDA National Organic Program (NOP) requirements. The USDA NOP seal is eye-catching and verifies the organic status, but it is not required. The name of the organic certification agency is required to be listed immediately below or next to the name of the seed company. A farmer must be easily able to identify the certifying agent and the seed company selling the seed.
Sufficient information about any seed treatments, including inoculants, must be clearly stated on the label so organic farmers can determine if the treatments are allowed for organic use before purchase. If the treatment is OMRI listed, the OMRI seal will often be on the label. Organically approved seed treatments include polymer coatings that form a physical barrier, protective bio-fungicides, bio-stimulants to energize good soil microbes, and extra nutrients for strong early plant growth. Especially under marginal conditions, organic seed treatments are often worth the additional cost.
The results of other seed tests, such as % GMO and GMO testing procedures, are generally not printed on seed tags/bags but may be available for certain species where GMO contamination is likely to be an issue (corn, soybeans) upon request. If you ask for these tests, it is important to understand that in the seed industry, “non-GMO” does NOT mean “GMO-free.” Both in the conventional and organic seed industry, it is widely accepted that a low level of “adventitious transgenic presence” is nearly universal. There has never been a legally required definition for the maximum % GMO presence allowed for the “non-GMO” status of seed. Organic seed companies do generally discard organic corn and soybean lots that test above a certain level (often 0.25%), but for conventional seed companies, “non-GMO” may simply mean “not a transgenic variety.”
What about seed vigor?
Seed vigor is a very important factor, especially when using untreated seed. Unfortunately, vigor is difficult to measure to estimate field performance accurately. Low vigor seed will grow more slowly and emerge unevenly. The seedlings will be more susceptible to disease, and the timing of mechanical weed control operations will be more difficult. Damaged or old seed may show a decent % germination but have reduced vigor.
Seed companies are reluctant to provide vigor assessments because they have no control over how seed is handled or stored after purchase. Seed quality can be affected when farmers store seed for a few weeks or a few years. Seed will deteriorate quickly when it gets wet, is stored under damp and moldy conditions, is left in the back of the pickup truck in the rain, gets excessively hot, or is damaged by pests. Leftover seed bags stacked on the gravel floor in a hot barn for a few months will be of a very different quality than when purchased in the spring! Bags of soybean and dry bean seed, if thrown from the back of a truck or dropped on a cement barnyard, can develop tiny interior cracks that increase rot susceptibility and reduce vigor. Rhizobium inoculant, either in bags or on seeds, will rapidly die if heated. Billions of Rhizobium bacteria can die in hours when the inoculant is left in a hot pickup truck.
Every year, farmers end up with leftover seeds. Some species, like corn, small grains, grasses, and many vegetables, can be successfully saved as long as the seed bags are stored in a cool, dry location and protected from rodents and other pests. Soybeans and other high-oil seeds will deteriorate more rapidly. Testing germination on any carryover seed before planting is always a good idea.
Assessing seed germination and vigor at home - for many crop species, this is fairly simple. Put 100 seeds on most paper towels and cover. Keep moist (but not dripping) and in a warm room for seven days. Do not let the paper towels dry out; do not cover them with plastic wrap or put them in a plastic bag. After seven days, count the number of seeds that have germinated. This will give you an estimate of percent germination. Then, look at the germinating seeds. If all seeds are at the same point of development for roots, shoots and cotyledon leaves, the seed probably has good vigor. If the seedling development is variable, with some visibly farther along than others, it is likely that some of the seeds are weak. You can still use weaker seed, but you will probably want to plant a little heavier and make sure the field conditions are better. Seed that sprouts unevenly and produces non-uniform seedlings often yields less and is less competitive with weeds.
What is NY Certified "Blue Tag" Seed?
Most newer varieties of small grains and other seed are ‘protected’ by the breeder/owner under the Federal Plant Variety Protection Act (PVPA) Title V laws and are legally allowed only to be sold as Certified Seed. This process ensures royalties to the breeder/owner and a higher level of genetic purity and seed quality for the farmer. In some cases, a farmer may save back enough seed grown from PVP-protected varieties for their own re-use, but legally, they are not allowed to sell any of the seed, not even to their neighbors, nor as ‘brown-bag’ no-name seed.
Producing Certified Seed is similar to organic certification: extra paperwork, cost and time, plus a stringent inspection and tight requirements to gain the privilege of selling a product at a slightly higher price.
The NY Seed Improvement Project carefully selects Certified Seed growers as farmers with proven ability to produce high-quality seed and pay attention to details. Certified seed fields are thoroughly evaluated for genetic purity, crop quality and weed species. After harvest and cleaning, licensed seed analysts conduct seed quality and germination analysis at the state seed lab. If the seed passes all the Certified Seed requirements, the seed company is allowed to purchase the Blue Tags from New York Seed Improvement, which generates royalties to the breeder and the certification program.
ON-FARM SEED PROPAGATION
Many farmers save a portion of their crops for their own seed needs and to sell to neighbors. While this is a time-honored practice, it can be legally risky. Many grain, forage and vegetable varieties are patented or are protected under the Plant Variety Protection Act (PVP) and may only be propagated and sold by companies licensed to produce seed of that variety.
PVP, enacted in 1970 and amended in 1994, provides exclusive legal intellectual property rights protection to developers of new varieties of plants that are sexually reproduced or tuber-propagated varieties and is administered by the USDA in the United States. This law is cooperative with international seed variety protection laws and serves as an incentive and financing for plant breeders to develop new varieties. The term of protection is 20 years for most seed crops and 25 years for trees, shrubs, and vines.
Prior to 1994, a farmer was permitted to save and sell seed without infringement, but a 1994 PVP amendment permits a farmer to save only enough seed of a protected variety to replant on their own land as long as the seed was originally obtained from a licensed seed dealer.
It is important for farmers to understand PVP and seed law. Seed companies, state agriculture departments and university breeding programs take these legal protections and seed labeling requirements very seriously. Nearly every year, organic farmers consciously and unconsciously step dangerously close to labeling, PVP, and patent lines.
Farmers are not allowed to sell varieties of seed covered by PVP protection, either as the named variety or as ”variety not stated” seed. Modern genetic testing makes varietal identification rapid and accurate, and legal penalties can be severe. Within the past few years, New York and Pennsylvania farmers have received legal warnings when they sold triticale seed of a PVP variety to their neighbors.
While it is tempting for organic farmers to assume plant patents are a GMO issue and do not pertain to them, that is not true. Some newer varieties of malting barley, hybrid rye, and wheat are patented and require stringent licenses that make it illegal to save seed, even for re-use on the farmer’s land. Asexually producing cuttings from patented varieties carry similar restrictions.
PLAYING THE GAME
As the ‘front-person’ of an organic seed company, I am amused each spring to get one of ‘those calls,’ so predictable, with the tone of voice and style of question always the same.
A farmer’s voice asks, “You don’t sell organic QXT 123 corn seed, do you?”
Of course, we don’t. The QXT company sells conventional seed, mostly genetically modified. I prolong the conversation with leading questions like “I’m not familiar with that hybrid. What is its maturity group?” and when the farmer says it is 88-day corn, I helpfully describe our 88-day organic corn hybrid, its durability, high yield, proven performance, and disease resistance. I ramble on amiably in the uncomfortable silence.
His voice sounds annoyed. Clearly, I need to give the right answer! No doubt a stack of non-organic seed bags sit in his barn or perhaps the seed is already planted in the ground. He certainly does NOT want to discuss the relative merits of similar organic corn hybrids.
I still have little sense there are real certification consequences for most farmers playing this game, especially if they are creative. The loophole of ‘quality, quantity and variety’ remains quite generous, especially for those who know how to describe market preferences and unique disease pressure.
As with all things in organic certification, the use of organic seed comes down to intent: are we playing by the rules because we want to or because we have to?
There is now a good supply of organic seed for most plant species needed in the northeast. A few areas that still need more attention - birdsfoot trefoil, white clover, emerging cover crops like phacelia, turnip, cowpea and sunn hemp, and a few varieties of flowers and vegetables, but for the most part, the available supply, high-quality genetics and seed quality are sufficient.
Of course, this is thanks entirely to that pesky original USDA National Organic Program, which included the requirement that we use organic seed unless it is unavailable.
Without the prescient wisdom of 205.204 in 2001, our thriving, creative and energetic organic seed community would not exist today!
Mary-Howell Martens has worked in the New York seed industry since 1980, when she started her MS in plant breeding/vegetable crops at Cornell University. Following plant breeding jobs at Harris Seeds in Rochester, NY and New York State Agricultural Experiment Station in Geneva, Lakeview Organic Grain was born in 2001, selling organic animal feed and grain, forage and cover crop seed throughout the northeast. Mary-Howell and her family also farm 2000 acres of certified organic grain and vegetable crops, including corn, spelt, soybeans, dry beans, oats, wheat, barley, red beets, lentils, and industrial hemp. The farm was first certified organic in 1992.