The Indian subsidiary of the US MNC, namely PepsiCo India Holdings (PIH) Pvt Ltd has filed cases of Intellectual Property Rights (IPR) infringement through 2018-19 against farmers whom it claims are using its potato variety FL 2027/FC5 without permission.
Releasing the letter in Ahmedabad, senior farmer rights activists and leaders Ambubhai Patel of the Bharatiya Kisan Sangh (BKS), Badribhai Joshi of the Gujarat Khedut Samaj, Kapil Shah of the Jatan Trust, Sagar Rabari of the Khedut Ekta Manch, and Vinay Mahajan of Loknaad demanded that the Government of India and the Gujarat government should step in “immediately to protect farmers’ rights as already enshrined in relevant laws of the country, particularly the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001.”
While Sagar Rabari warned of “dire consequences” if PepsiCo did not withdraw the case against the farmers, answering questions, Kapil Shah said, though they had come to know about PepsiCo’s law suit on April 15 through a media report, they did not protest against the MNC because they did not want to interfere in Gujarat state assembly elections. “We are non-political, and did not want to be misunderstood”, Shah added. “Besides, we had to make preparations on the issue.”
Belonging to the Sangh Parivar, BKS’ Ambubhai Patel said they had written a letter to the Gujarat government “protesting against the move” on April 20, three days before the polls took place in the state. However, the BKS decided not to make public the letter for “political reasons.”
From information gathered so far by the farmers’ leaders, at least nine cases have been filed by PepsiCo India against potato farmers of Banaskantha, Sabarkantha and Arvalli districts, and some of these cases date back to 2018. These are amongst the first cases of alleged IPR infringement against farmers in India in a post-World Trade Organization (WTO) world.
The letter demands “immediate intervention” from Union agriculture minister Radhamohan Singh, Union minister of state for agriculture Purushotham Rupala, Gujarat chief minister Vijay Rupani and state agriculture minister RC Faldu.
Text of the letter:
This is to bring to your urgent notice our serious concerns and facts around legal suits that are going against farmers on the matter of plant varietal rights.These are being filed by PepsiCo, a US multinational company against potato farmers in Gujarat, with regard to alleged infringement of its rights under PPV&FR Act, 2001. For us, this is a matter of concern with regard to this set of farmers who have been sued and intimidated, as well as others who could be similarly bullied by seed and food corporations through vexatious litigation in the assertion of plant breeder rights.
We are aware of at least 9 farmers, belonging to Sabarkantha and Aravalli districts of Gujarat having been sued by this MNC’s Indian subsidiary, which is PepsiCo India Holdings (PIH) Pvt Ltd. A crucial next hearing is coming up on April 26, 2019 at the Commercial Court in Ahmedabad, Gujarat, after an ex-parte interim injunction order has been passed against the farmers, upon the company making a case for “irreparable losses”.
The cases are specifically with regard to a particular potato variety with a denomination of FL-2027, reportedly known as FC-5 potato, for which the company claims to have obtained exclusive PVP rights in India in 2016 (valid till 2031) from the Authority. PIH is making out infringement cases with its own interpretation of Section 64 of the PPV&FR Act.
As per the information that we have gathered so far, these farmers are small farmers holding around 3-4 acres on an average, and had grown a potato crop from farm-saved seed after they accessed the potato seed locally in 2018. At this point of time, it is not clear if the farmers were aware of what they had grown and even if they did, that is immaterial when it comes to the statutory rights that they have, as we show later in this letter.
PepsiCo apparently got a tip-off that the farmers were growing “its registered variety” of FL-2027 and in a completely unacceptable manner, hired a private detective agency to pose as potential buyers in front of the sued farmers, to take secret video footage and collect samples from farmers’ fields sans disclosing its real intent.
Later on, PepsiCo India Holdings got the samples tested in its own laboratory and also sent the same to ICAR-CPRI, Shimla and got reports confirming that the varieties being grown by the farmers are indeed FL-2027 or FC-5.
Armed with this information, and presenting an estimated damage of more than one crore rupees against each farmer, the MNC filed legal suits against 4 farmers in early April 2019 (and we came to know later on that similar cases were filed against 5 other farmers in another district in Gujarat last year and there could be more) and PIH even obtained injunction orders from the Court.
Everything about this entire operation is in fact against the law, and it is not the farmers who are violating the law, but the company. The PPV&FR Act has always been projected as a law to protect farmers’ rights. The protection ought not be tied to only when farmers register their varieties with the Authority.
As you know, the Protection of Plant Varieties & Farmers Rights Act was enacted in India as a sui generis framework at the national level, after India had signed on to the WTO TRIPS in 1995.
As is well known, the PPV&FR Act 2001 has upheld the apriori rights of farmers of the country, by explicitly stating under Section 39 (1) (iv) the following:
“Chapter VI
Farmers’ Rights: Sec. 39 (1) Notwithstanding anything contained in this Act
(iv) a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into the force of this Act, provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.”
It is important to note and underscore the importance of this qualifying statement, which says “notwithstanding anything contained in this Act” which means that this clause is more important than clauses that provided exclusive rights to a registrant, and also that farmers are entitled to apriori rights and practices by virtue of the line on “(protection) in the same manner as he was entitled to, before the coming into the force of this Act”. Both these indicate that farmers’ rights are squarely upheld by this Act and are non-compromisable.
Further, even the caveat around sale of “branded seed” of a registered variety which is protected under the Act is with regard to sale of SEED, that too in a branded fashion, which in the current case of Gujarat farmers is not even applicable.
The legislative intent to safeguard farmers must be upheld through a harmonious reading of sections 28, 39 and 64. There is also Section 42 which deals with protection in the case of innocent infringement that can be operationalised and made real.
We believe that the intimidation and legal harassment of farmers is happening because farmers are not fully aware of the rights contained in this statute. Also, in all PVCs granted to non-farmers, there has been no reiteration of such non-negotiable rights of farmers vis-Ã -vis the breeders. Plant Breeders Rights granted in India are meant to be unique and different from those granted anywhere else due to the farmers’ rights orientation and provisions of the law.
It is in this context that we urge the PPV&FR Authority, which as per Section 8(1) of the Act has the duty to protect the rights of farmers, to immediately take up the following:
Armed with this information, and presenting an estimated damage of more than one crore rupees against each farmer, the MNC filed legal suits against 4 farmers in early April 2019 (and we came to know later on that similar cases were filed against 5 other farmers in another district in Gujarat last year and there could be more) and PIH even obtained injunction orders from the Court.
Everything about this entire operation is in fact against the law, and it is not the farmers who are violating the law, but the company. The PPV&FR Act has always been projected as a law to protect farmers’ rights. The protection ought not be tied to only when farmers register their varieties with the Authority.
As you know, the Protection of Plant Varieties & Farmers Rights Act was enacted in India as a sui generis framework at the national level, after India had signed on to the WTO TRIPS in 1995.
As is well known, the PPV&FR Act 2001 has upheld the apriori rights of farmers of the country, by explicitly stating under Section 39 (1) (iv) the following:
“Chapter VI
Farmers’ Rights: Sec. 39 (1) Notwithstanding anything contained in this Act
(iv) a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into the force of this Act, provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.”
It is important to note and underscore the importance of this qualifying statement, which says “notwithstanding anything contained in this Act” which means that this clause is more important than clauses that provided exclusive rights to a registrant, and also that farmers are entitled to apriori rights and practices by virtue of the line on “(protection) in the same manner as he was entitled to, before the coming into the force of this Act”. Both these indicate that farmers’ rights are squarely upheld by this Act and are non-compromisable.
Further, even the caveat around sale of “branded seed” of a registered variety which is protected under the Act is with regard to sale of SEED, that too in a branded fashion, which in the current case of Gujarat farmers is not even applicable.
The legislative intent to safeguard farmers must be upheld through a harmonious reading of sections 28, 39 and 64. There is also Section 42 which deals with protection in the case of innocent infringement that can be operationalised and made real.
We believe that the intimidation and legal harassment of farmers is happening because farmers are not fully aware of the rights contained in this statute. Also, in all PVCs granted to non-farmers, there has been no reiteration of such non-negotiable rights of farmers vis-Ã -vis the breeders. Plant Breeders Rights granted in India are meant to be unique and different from those granted anywhere else due to the farmers’ rights orientation and provisions of the law.
It is in this context that we urge the PPV&FR Authority, which as per Section 8(1) of the Act has the duty to protect the rights of farmers, to immediately take up the following:
- Put out a public statement, which should also be made a Submission to the Commercial Court and High Court in Ahmedabad where the farmers are being sued, explaining the farmers’ rights as enshrined in the PPV&FR Act 2001;
- Write to PepsiCo India Holdings, asking it to withdraw its false and untenable cases against the farmers;
- Provide from the National Gene Fund the costs of legal suits that the farmers are having to face, until the time that the cases are withdrawn by PepsiCo;
- Mention on all Certificates of Registration, in the same manner as Section 47 (on compulsory licensing) is mentioned, Section 39 and other relevant sections too.
- Issue a notification that no company can trespass into a farmer’s field without due intimation of the local district agriculture office and the farmer’s prior informed consent.
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Click HERE for list of signatories and other details
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