Illegal brown bagging of seed on the rise

The illegal planting of public varieties of crops has become increasingly common the last few years with the tight farm economy.

Farmers planting small grains or cover crops this fall need to make sure they are planting legal seed varieties. Brown bagging, or the illegal selling of noncertified public varieties, has been on the rise, and that seed is being sold by both individuals and elevators.

Jesse Hall farms near Arlington, S.D., and is also a certified seed dealer. He says the illegal planting of public varieties has become increasingly common the last few years with the tight farm economy.

“Well some people, you know, they're brown bagging, trying to save a little bit of money,” he says.

“And what happens is they go to a local grain elevator and they want to buy oats to put in as a cover crop, and if the elevator sells the oats to them for seeding purposes, that's an illegal sale,” says South Dakota Crop Improvement Association Executive Director Neal Foster.

Foster says brown bagging has also increased with the interest in cover crops, especially with the record prevented planting acres in South Dakota last year.


Bryan Jorgenson is also a certified seed dealer and farmer from Ideal, S.D. He says the practice of planting brown bagged seed may be tempting to farmers, and it may not seem like a big deal. However, those varieties are under Plant Variety Protection, or PVP, and so farmers are stealing intellectual property. Plus, the legal penalties for brown bagging can be very high.

“You know they can go to court and they can be in the millions, it really depends on how much is propagated, but it can be very, very serious,” he says.

In fact, a case in Iowa where an individual was illegally selling an oat variety from South Dakota State University resulted in a settlement of over $2.975 million.

Foundation Seed .jpg
Buying certified seed ensures that farmers are helping fund the research that developed varieties that work in local regions, and certified seed also comes with a guarantee the seed is free of noxious weed seeds and is pure. (Michelle Rook / Agweek)

Foster says there aren’t more cases because they are extremely hard to catch. He says the South Dakota Crop Improvement Association is a member of a group called Farmers Yield Initiative, which is a consortium of neighboring states and agencies throughout the wheat belt. This group helps initiate investigations, and if there is an infringement, they will help take the case to trial.

The practice also puts the ongoing breeding programs and public varietal development at land grant universities at risk.

“One thing that you need to remember is that when you pay your royalties, that goes to fund our local breeding programs. And it’s very important we keep them in the future in order to ensure you know that we've got some good varieties, you know, coming in the future years," Hall says.

Foster says the cost to fund research to bring a new variety to the market is high.


“It takes about $1 million to develop and release a variety and about 10 to 12 year time. So that's a big investment of time and money that we would like to see some of it come back to help keep those programs going,” he says.

However, farmers reap many advantages from planting certified varieties and investing in that research, which is generally conducted at the nation’s land grant universities.

“The breeding programs are more localized as well, so you have a higher probability of getting, you know, varieties that are probably better adapted to your area,” Hall says.

Jorgenson agrees that is a strong selling point for public varieties.

Plus, certified seed comes with a guarantee the seed is free of noxious weed seeds and is pure.

“So we know that we are buying a given variety. We know that it can be ensured that it is that variety,” Jorgenson says.

He says farmers can plant their own bin-run seed, but if they buy seed, they should look at the seed tag to ensure it is certified.

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