After the Pennsylvania Department of Agriculture cracked down on a community seed library, hundreds of seed libraries in the U.S. are suddenly wondering if they are breaking the law. According to PA regulators, in order to give out member-donated seeds, the Simpson Seed Library in Cumberland County would have to put around 400 seeds of each variety through prohibitively impractical seed testing procedures in order to determine quality, rate of germinability, and so on. The result of the PA crackdown is that the library can no longer give out seeds other than those which are commercially packaged.

Quite ironically, this is in the name of “protecting and maintaining the food sources of America.” In this news article that went viral, regulators cited, among other things, that “agri-terrorism is a very, very real scenario.” In reality, seed libraries have emerged in an effort to protect our food sources and to ensure access to locally adapted and heirloom varieties. The public’s access to seeds has been narrowing ever since 1980, when the Supreme Court ruled that a life-form could be patented. Since then, large seed companies have shifted away from open-pollinated seeds to patented hybridized and genetically-engineered varieties. The companies generally prohibit farmers from saving and replanting the seeds, requiring that farmers buy new seed each year. In response to this trend, seed libraries give members free seeds and request that members later harvest seed and give back to the library in the future, thereby growing the pool of seeds available to everyone.

Seed Law Basics

It’s important to set the record straight about the legalities of seed libraries. Let’s begin with the basics: In every state, there are laws requiring seed companies to be licensed, test seeds, and properly label them. At the federal level, there is a comparable law governing seed companies that sell seeds in interstate commerce. All of these laws exist for good reason: If a tomato grower buys 10,000 tomato seeds, the grower’s livelihood is on the line if the seeds turn out to be of poor quality or the wrong variety. Seed laws, like other truth-in-labeling laws, keep seed companies accountable, prevent unfair competition in the seed industry, and protect farmers whose livelihoods depend on access to quality seeds. The testing and labeling of the seeds also helps to prevent noxious weeds and invasive species from getting into the mix.

In some states, the licensing, labeling, and testing laws only apply if you sell seed. In other states, such as California, the laws apply if you even offer seeds forbarter, exchange, or trade. How do you define words like sell, barter, exchange, and trade? And how do they apply to seed libraries? Read on if you are ready to venture into interesting legal grey areas.

In at least one state (yup, Pennsylvania), even supplying seeds make you subject to at least some regulation. But the Pennsylvania seed law is about to be put to the test, and we think that regulators should have read their law more carefully.

Using the Letter of the Law

When you see a law enforced unfairly, read the letter of the law and see if you can find holes in it. Found one! In Pennsylvania, supplying seed might make you subject to the requirement to get a license, which involves filling out a form and paying an annual $25 fee (Section 7103, Chapter 71 of PA Consolidated Statutes). However, the sections of the law (7104, 7105, etc.) that mandate testing and labeling only apply if you sell seed. Not “supply,” but “sell!”

Has anyone in Pennsylvania noticed this nuance since the whole kerfuffle with Simpson Seed Library began? Seed libraries in Pennsylvania could perhaps test this: Fill out the license form, pay the $25 fee, and continue to operate as usual. If the PA Department of Agriculture demands testing and labeling of seeds, a seed library could try holding its ground until the regulators see their own error or until a court makes a determination that the library is not “selling” seeds. (Note: We’re not giving legal advice here! Get legal advice from a PA lawyer, because breaking this law the first time could result in up to 90 days of prison time, and breaking it the second time can result in up to two years.)

Working Within Grey Areas

California and other states define “sell” to include exchange, barter, or trade. This broad definition helps to ensure that people can’t sidestep regulation simply because they aren’t using dollars to bargain. Bargaining is a key concept in all of this. We have innumerable regulations designed to temper the potential harms that arise when people bargain in the context of commerce. Merchants have an incentive to seek high prices and to reduce their costs in order to get more.When people transact within the “get more” frame of mind, it is far more likely they will cut corners, disregard risks, be careless, mislead people, and so on. That’s why regulations apply when people sell things, but rarely when people give things.

Seed libraries have a “give more” frame of mind, which motivates the libraries to do right by their members and the community. They ask people to donate seed back to the library, but do so with the goal of giving away more seed. The letter of the law doesn’t tell us that seed libraries are clearly exempt from regulation, but the spirit of the law does.

When the application of a law is unclear, we must go deeper to hone our legal arguments. Although the libraries both give and receive seeds, there’s a strong argument that they do not, in fact, exchange seed in the way the California regulation envisions. To find solid legal ground for this argument, seed libraries can borrow legal arguments from time banks. A time bank is an organization through which members do favors for one another and award one another a “time dollar” or “time credit” for every hour of service. People can use their time credits to reward favors they receive from other members of the network. The IRS has acknowledged in private letter rulings that this activity is distinct from that of a barter exchange for two primary reasons: 1) the giving and receiving of favors happens informally, meaning that people get no contractual right to have their favor returned, and 2) the exchanges are non-commercial, as demonstrated by the fact that everyone’s hour is valued equally, meaning that people are not bargaining for services at market rate.

Similarly, seed libraries generally give and receive seeds on an informal basis, meaning that neither the library nor its members have a right or requirement to give seed. Members likely have a sense of responsibility to give back to the seed library, but the library cannot force them to do so. In addition, seed libraries give and receive seeds on a non-commercial basis. People neither pay money for seeds, nor do they measure the value of seeds they give in proportion to what they get. You can learn more the about nuanced differences between giving, swapping, exchanging, and selling here and here.

Note that it’s important for seed libraries to ensure that their policies, languaging, and practices reflect what we’ve described in the above paragraph. If the library makes people feel as if they are required to give seed later on or if the library is counting seeds in order to keep score somehow, then the library might actually come under the regulations. We have seen at least one seed library that has members sign a contract indicating that the member “shall” or “agrees to” donate twice the amount of seed that they checked out. This is risky. We suggest that all seed libraries review their documents and revise paperwork in order to simply collect information from members about what kind of seed they received, what they are donating, their experience with the plant, and so on.

Crowdsourcing a Seed Law Library

Drawing upon the spirit of reciprocity that motivates seed libraries, we’d like to urge readers to take 30 minutes and give back by doing research on other states’ seed laws. We’ve created a Hackpad where anyone can add links to state seed laws, copy and paste in key provisions, and add your comments and questions. Wanna take a crack at it? It’s very empowering to learn how to find and navigate laws.

The American Seed Trade Association compiled a list of state seed laws, but many of the links are broken, so you may need to access the laws by navigating through state agricultural codes. Commonly, state seed laws live in two places: 1) state statutes created by legislators, and 2) regulations created by the state department of agriculture. You need to review both.

We Still Need to Change These Laws!

Even though we have arguments that seed libraries are not subject to state and federal testing and labeling requirements, it would be ideal for our laws to say this explicitly. No matter what state you are in, you could look on either end of the political spectrum and probably find a legislator who would be sympathetic to these issues. You could ask a legislator to introduce a bill that has simple language such as:“Notwithstanding any other provision of this [law, act, chapter, article], Seed Libraries shall be exempt from all licensing, testing, labeling, and other requirements of this [law, act, chapter, article]. ‘Seed Library’ shall be defined as a nonprofit, cooperative, or governmental organization that donates seed and receives donations of seed.”

Depending on how much discretion your state department of agriculture has with regard to the crafting of regulations, you could, instead, simply ask the department to amend the regulations.

Also, we recommend that seed libraries and other advocates write letters to theAssociation of American Seed Control Officials (AASCO), a national membership organization comprised of state seed regulatory officials. Among other activities, AASCO developed and maintains the Revised Uniform State Seed Law, the model law on which many states’ seed laws are based. If AASCO were to expressly exempt seed libraries from regulation, several states would likely follow suit, since they often adopt wholesale AASCO’s recommendations. AASCO’smembership directory also contains mailing and email addresses for seed regulators in each state, so we recommend that everyone write to them as well.

If we change laws to create a clear legal space for seed libraries, we should perhaps also do so for small-scale seed enterprises. If current law requires a seed business to test 400 seeds of each variety, this privileges large seed companies, and effectively blocks farmers from starting small seed enterprises. Further, the scale of operation should make a difference when it comes to achieving the goals of these laws. If a package of 100 seeds ends up being of poor quality or if it contains noxious weeds, the harm to the grower or to society is much lower than if the packet contained 10,000 seeds. Likewise, seed sales that are conducted direct-to-consumer within a small geographic area present minimal risk of introducing new invasive or noxious species. Thus, when we change the laws, we should also create exemptions and lower compliance hurdles for seed enterprises that sell seeds in small quantities, direct-to-consumer, and/or within a confined region.

In the big picture, laws should not try to protect citizens from all imaginable harms nor should laws overreach into all areas of our lives. Every law requires a balancing act. Although driving a car is quite dangerous, people are allowed to do it, because society has decided that the benefit of mobility outweighs the risk of harm. Similarly, during times of food insecurity, climate disruption, and genetic consolidation of the sources of our food (seeds!), the benefit of seed libraries is enormous as compared to the potential harm of a seed packet gifted within a community. Let’s make sure our laws get with the times!

This article was written by Janelle Orsi and Neil Thapar of the Sustainable Economies Law Center, with input from Neal Gorenflo of Shareable, and Sarah Baird of the Center for a New American Dream.

Photo credit: Wikipedia/Kathryn Brown