Revised rule puts seed ‘libraries’ under state regulation

Jan Shepel

Madison — For several years gardeners who save seeds from their vegetables or have seeds left over after they plant their garden have offered them to others in “seed libraries” — often located in regular book libraries. But officials in the Agricultural Resource Management division at the state Department of Agriculture, Trade and Consumer Protection grew concerned about the potential for seed users to get something they hadn’t bargained for if they pick up seed at such locations.

With no testing and no expiration date on such seed, and the potential for the seed to not be what it is stated to be, the department moved to make such seed libraries come under the state’s seed regulations — as all other agricultural and horticultural seed for sale already is.

Recently, the department completed a rule revision process making the state’s “seed rule” applicable to “seed distribution for non-commercial purposes” conducted by seed-sharing organizations, commonly known as seed libraries. The seed-sharing organizations will now be required to meet basic labeling requirements and will be required to be licensed.

The department began the process of dealing with the seed libraries in April 2015 when the first step in the rulemaking process, called a scope statement, was passed by the DATCP board. The issue was that seed that is not “sold, or offered for sale or distributed for sale” did not fall under the seed regulations. It was intended in the state law, but the language of the regulations left room for ambiguity.

At that time department officials said that if the rules weren’t changed, such seed libraries, or even garden organizations, could be at risk of prosecution for violating the state’s seed law. There was also concern that home gardeners, the seed industry and the environment could be at risk of the spread of restricted and prohibited noxious weed seed.

Brian Kuhn, director of the department’s Plant Industry Bureau, said his division got some questions from the state legislature about how the state was regulating – or not – these seed libraries, because in other parts of the country it was a problem that had gotten out of hand. In many states, regulators were coming down hard on these small seed-sharing services.

“In other states, like New York and Pennsylvania there were some ugly situations. We felt like there needed to be a way to make this happen,” he said.

Kuhn is a member of the National Plant Board, a group that has been trying to come up with a national strategy to carve out some way to account for these seed-sharing efforts born from “Buy Local” kinds of philosophies, and still protect consumers and the greater seed industry.

The department has the responsibility to enforce the state’s seed law, dictating the labeling and sale of all agricultural seed – including crop seed, vegetable seed for home gardens, lawn and turf seed, flower seed and native species seed.

Greg Helmbrecht, the department’s seed labeling program manager, is a member of Kuhn’s staff and has been active on the American Association of State Seed Control Officials, which has also been taking a look at the seed library phenomenon and how to get a handle on it.

The first goal of any regulation, Kuhn said, was to create a system so that regulators know where all of the distribution points are, which was why they asked seed libraries to get a $25 license. This would allow regulators to “chase back” any problems that might develop with noxious weeds, if they emanated from a seed library.

Kuhn has visited a seed library in Madison where people drop off seed and it sits in mailing envelopes inside a shoe box on a shelf.

No guarantees

Another concept in creating this rule, Kuhn said, was that such seed libraries must tell people that there is no guarantee of seed purity or germination rate. The DATCP officials also wanted to make sure that operators of seed-sharing services were aware of details in the seed business — like patented and protected kinds of seed — so they didn’t get in trouble with major seed companies.

“We were working on this while the whole national thing was playing out,” Kuhn said. “Having seen what had happened in other states ... it was fairly ugly. It ends up seeming like you’re coming down on grandma for letting Aunt Martha have some seed. We didn’t want that. We were trying to be reasonable.”

At the same time they felt that the state’s seed law did give the department room to regulate these kinds of services.

Kuhn said that the state’s seed libraries have voiced support for the agency’s approach. “By and large everything we’ve heard from them has been positive,” he said. “They know where they stand and we know where they are.”

Helmbrecht explained that the revision of the seed rule — ATCP 20 — makes it clear that Wisconsin’s seed rules are applicable to seed distribution for non-commercial purposes conducted by seed-sharing organizations, commonly known as seed libraries. It also modifies Wisconsin rules governing the sale and labeling of agricultural and vegetable seed to require non-commercial seed-sharing entities meet basic labeling requirements and to be licensed.

The rule states that such seed-sharing libraries must clearly label, in English, the packets of seed with the name of the species or commonly accepted name of kind of plant (or the kind and variety.) If they are hybrid seed, that must be stated too. The label must also include a word or statement indicating if the seed has been treated. If the seed has been treated the container must be labeled in accordance with state and federal law.

The label is also required to include the name and address of the seed-sharing entity. The rule does not require germination and purity analysis but if a germination or purity percentage is noted on the label it must state whether the analysis was performed according to the Association of Official Seed Analysts for testing seed.

Small amounts

According to the rule, the seed must be free of foreign material, including things like mulch, fertilizer and germination medium and containers at the seed libraries are not supposed to contain more than 8 ounces of agricultural seed or more than 4 ounces of vegetable or flower seed.

This was an effort to prevent some unscrupulous seed sellers to use the new rule to get around regulations for agricultural seed, Kuhn explained. So quantities of seed that can meet these regulations were kept deliberately small.

At each location where non-commercial seed sharing is conducted, a legible and visible sign is to be posted that the seeds being distributed may not meet germination or variety purity standards as prescribed for all other seed sold or distributed in the state.

In many cases, the rule was simply revised to add the word “distributed” so that seed “sold or distributed” would include the seed sharers who are not asking people to pay for the seed.

In preparing the new rule revision the agency consulted with an advisory committee that included state seed industry representatives and seed libraries from Wisconsin and across the nation.

The department also consulted with the Wisconsin Crop Improvement Association, Association of American Seed Control Officials, American Seed Trade Association and the Association of Official Seed Analysts to develop the standards in the new rule.

The draft rule was passed by the department’s citizen policy board at a meeting in Waterloo in May after which hearings were held on the rules package. Helmbrecht said that there was positive feedback at the hearings from members of the Seed Trade Association and the Crop Improvement Association.

The department’s Secretary, Ben Brancel, said many of these seed-sharing libraries have sprung up because of some individual’s concern that patented seed controls the marketplace and that it’s important to have another, local source.

Helmbrecht said there are eight licensed seed libraries in the state right now and probably another eight or so out there that are not yet licensed.