In Brazil, a technological, regulated and serious agribusiness

Brazil's agribusiness is the best in the world! And it is the most important sector for the Brazilian economy. Our country is one of the main producers and exporters of agricultural crops and meat, in addition to emerging in the technological and regulatory fields.

In the first half of 2020, the Brazilian Association of Soy Seed Producers - ABRASS and the Brazilian Agriculture and Livestock Confederation - CNA made available information that agribusiness was responsible for around R$ 1,55 trillion or 21,4 % of Brazil's GDP, referring to 2019, with the agricultural sector being the largest responsible (68% or R$ 1,06 trillion). They rank, as Top 5, the crops of soybeans, corn, sugar cane, coffee and cotton. Agribusiness employs around a third of the Brazilian workforce. 43% of national exports come from agribusiness, placing our nation in 4th place among the world's largest exporters of agricultural products, behind only Europe, the USA and China.

Brazil is one of the leading countries in the world in agricultural technology. Our agriculture already uses, on a large scale, drones that control in real time and quickly the development of crops, the pests that affect them, the application of agricultural pesticides on them, among other actions, on medium and large plantations. The internet of things is also used, managing the rural property, its planting field and the human, defensive and machine resources involved, interconnecting them with soil, air and water data, as well as, for example, weather forecasts. Digital and online equipment and machines and autonomous tractors are already present in countless crops. Our nation is internationally recognized for researching and developing new and improved plant cultures, known as “new cultivars”, which bring with them morphological improvements (structure, shape, external characteristics, etc.) and in their internal constitution (disease resistance, maturation precociousness, viability in hostile environments, etc.), through classical genetic improvement and/or transgenics. 

The Brazilian legal framework that regulates agribusiness comprises advanced, orderly and effective legislation, which is in line with international treaties and legal frameworks of several developed foreign nations such as, for example, the European Union, the USA, China and Japan. How For example, the Seeds and Seedlings Law and the Cultivar Protection Law stand out, which regulate the registration and protection of cultivars, the accreditation of entities that exploit them, the registration of production fields, among other related aspects.

Cultivar protection and registration

The protection and registration of cultivars, in Brazil, correspond to two different and separate subjects, which do not depend on each other, refer to independent and distinct requests, purposes and procedures, and are regulated by separate laws and government authorities, which are within the scope of the Ministry of Agriculture, Livestock and Supply - MAPA.

The protection of cultivars or Breeders' rights is related to the Intellectual Property rights of the plant variety, while the registration of cultivars refers to the commercialization of the variety (including import, production, processing, etc.). The cultivar protection certificate grants its holder the right of commercial reproduction in Brazilian territory, with unauthorized third parties being prohibited, during the protection period, from producing for commercial purposes, offering for sale or marketing the cultivar. propagation material of the protected variety. The production, processing and commercialization of seeds and seedlings, in the national territory, are subject to prior commercial registration of their respective cultivar, with the competent authority.

The registration of a plant variety in Brazil is regulated by the National Cultivar Registry - RNC of MAPA in accordance with the Seeds and Seedlings Law no. 10.711/2003 and its Decree no. 5.153/2004. The protection of a cultivar, in our country, is regulated by the National Cultivar Protection Service - SNPC of MAPA in accordance with the Cultivar Protection Law no. 9.456/1997 and its Decree no. 2.366/1997.

Access to national biodiversity

On 24/10/2016, the SNPC implemented new rules to grant protection to cultivars in Brazil, with the aim of complying with the provisions of Biodiversity Law no. 13.123/2015 and its Decree no. 8.772/2016. In summary, these new rules require the Breeder to inform whether or not the cultivar is the result of access to samples of components of the Brazilian genetic heritage or associated traditional knowledge, carried out from 30/06/2000.

Registration of agribusiness agents and production fields

According to the Seeds and Seedlings Law and MAPA Normative Instruction no. 09/2005, individuals and legal entities, who carry out the activities of production, processing, packaging, storage, analysis, trade, import and export of seeds and seedlings, are obliged to register in advance with the National Seed and Seedling Registry - RENASEM.

Furthermore, in the seed and seedling certification process, they may be produced under the classifications of genetic seed, basic seed, certified first generation seed (C1), certified second generation seed (C2), basic plant, matrix plant and certified seedling. The production of basic seed, certified first generation seed (C1) and certified second generation seed (C2) is subject to prior registration of the respective production fields in MAPA.

Relevant and recent practical case

MAPA, as a supervisory entity, together with its decentralized state units and interstate task forces, carries out the activities of investigating complaints, investigation, inspection, seizure of products, suspension of commercialization, interdiction of plantations and properties, among others. These measures are usually precautionary in nature, beginning or during the course of administrative proceedings within MAPA. Once the infraction or illegality is verified and the process is concluded, the penalties provided for by law are applied. Administrative processes within the scope of MAPA are processed under secrecy and confidentiality, and are made public upon conclusion.

According to the Seeds and Seedlings Law, these penalties may be, for example, isolated or cumulatively, warning, seizure of seeds or seedlings, condemnation of seeds or seedlings, suspension or revocation of registration with RENASEM, and a pecuniary fine, which it may be equivalent to up to 250% of the commercial value of the inspected product, when it affects production, processing or commercialization. Furthermore, the responsible technician, sampler or certifier who fails to comply with the law may be punished by means of a warning, monetary fine, suspension or revocation of accreditation, and report to the Regional Council of Engineering, Architecture and Agronomy - CREA, individually or cumulatively.

The Cultivar Protection Law provides, as a sanction for anyone who sells, offers for sale, reproduces, imports, exports, packs or stores for these purposes, or transfers for any reason, propagation material of the protected cultivar, with the correct name or with another, without the Owner's authorization, compensation, seizure of this material and payment of a fine, characterizing a crime of violation of the Breeder's rights.

The penalties and sanctions mentioned above do not prejudice other applicable penalties.

In June 2020, MAPA published, in its news, the suspension of commercialization, on a precautionary basis, of the production of a large seed producer in the municipality of Campo Verde, in Mato Grosso.

2.700 tons of soybean seeds produced for sale were seized, which were stored in 1-ton bags, all seeds coming from the same cultivar, which is duly registered with the RNC and protected by the SNPC. The seed producer is also duly registered with RENASEM. So, what is the reason for the inspection actions and the initiation of administrative proceedings? The production field for the seized seeds would not be registered with MAPA!

Final considerations

Some may see agribusiness legislation as an obstacle or something bureaucratic and complex, but they are definitely not. 

It is precisely these legal requirements that helped place Brazil, currently, on the world podium of the main producers, exporters and Obtainers/Brewers of seeds, seedlings and harvest products!

The awareness of everyone who works in agribusiness about the importance of due compliance with legal requirements is essential in combating seed piracy, in guaranteeing the physiological and sanitary qualities of plant materials, in protecting the environment and Brazilian biodiversity, in traceability of seeds and cultivars and the guarantee and solidity of legal security. This all generates trust, transparency and control, both for rural producers and government agencies, and provides technological, regulated and serious agribusiness in our country.

*Pedro Moreira is an Industrial Property Agent and partner at the Dannemann Siemsen office.