Illinois Seed Law

Text of the Illinois Seed Law

(Courtesy of Rebecca J. Osland. The following is NOT legal advice and merely for informational purposes.)

Summary

Regulators could try to enforce Illinois Seed Law, 505 ILCS 110/1-110/16 (the “Seed Law”) against a seed library, but I think there is a strong argument that it does not apply.  However, proceed with caution because similar laws have been applied to seed libraries around the country lately, so there is a risk that regulators here might do the same.  While many seed libraries have already begun operations, including here in Illinois, there is the potential for prosecution and a possible penalty of at least $1,000 for violating our Seed Law. (Sec. 13.)

Seed Law Requirements

        The Seed Law requires four main actions: permitting, testing, labeling, and recordkeeping.  The definition of “sell” in the Seed Law includes “transferring ownership, offering or exposing for sale, exchange, distribution, giving away.”  (Sec. 2.136.)  There are no explicit exemptions in the law for community, non-profit, or small enterprises.

Permitting

        Permits must be purchased annually in order to sell seed (Sec. 5(1)), but they must also be purchased by anyone who is required, under the Seed Law, to label seed, and by anyone who opens a bag of seeds in order to repackage and sell portions of the contents.  (Sec. 10(1)(a)-(b).)  No permit is required for selling already packaged commercial packets of seed or for selling seed grown on the premises where sold.  (Sec. 10(2).)

Testing

        Germination tests are required, according to the rules and regulations written by the Illinois Department of Agriculture (the “Department”).  (Secs. 3, 4.4(2)(a), 5(2).)  The Department defers to the testing methods followed under the Federal Seed Act.  (Ill. Admin. Code title 8, sec. 230.10.)  The Federal Seed Act delegates this rulemaking to the U.S. Secretary of Agriculture (7 U.S.C. § 1593(a)), and the U.S. Department of Agriculture’s regulations require a sample size of at least 400 seeds of each variety.  (7 C.F.R. §§ 201.43(f), 201.54). See the relevant Code of Federal Regulations sections below.

Labeling

Note: if a library asks individuals to label the seed that they return, their name and address should be on the label, and therefore, they would be required to purchase permits under the Seed Law as well.  (See Permitting above.)

Recordkeeping

        Anyone whose name appears on labels must keep complete records for 2 years and a sample of the seed for 1 year.  (Note, again, this could mean individuals who contribute seed to the library.)  “All such records and samples pertaining to the shipment or shipments involved shall be accessible for inspection by the Director of the Department of Agriculture, or his agents, during customary business hours.”  (Sec. 6.)

Reasons why seed law does not apply to seed libraries

        Though the Seed Law does not explicitly exempt seed libraries, the requirements do not make sense when applied to such small, community organizations, and it is therefore very questionable that the Illinois Legislature intended this law to apply to them.  The Department’s regulations also indicate that, in their interpretation of the Seed Law, they did not contemplate it applying to anything resembling a seed library.  Nonetheless, there is a risk that a regulator could try to enforce this law against a seed library.

        First, the minimum seed sample required for testing is 400, which is far more than any one seed source would be at a seed library.  This requirement only makes sense for a larger seed business.  Minnesota regulators may be bending this requirement in order to make their law fit a Duluth seed library, and may involve master gardeners in testing a few seeds of each seed packet.  I am not sure what their state law says, but in Illinois, the Department’s regulations clearly defer to the federal rules.  Those rules explicitly state a minimum of 400 seeds.

        If the Department intended this Seed Law to apply to small community operations, they could have written a separate regulation with a lower threshold for such operations, but they did not.  Further, they should not.  The germination requirement is useful for protecting the incomes of professional farmers and for protecting the paying public from purchasing bad products.  Though “sell” is defined to include giving away, this is likely meant to cover promotional samples that a for-profit seed company would give in order to attract new, otherwise paying, customers, but not to an operation with a model that is entirely based on free distribution to, and sharing among, community members.  There is no need for regulators to get involved.  This would only add expenses for a library and hinder community seed sharing.  If an individual library wanted to, and was able to find a volunteer master gardener to help, they should have the flexibility to decide for themselves.  Many communities might not have that resource available and they should not have to incur large expenses to obtain such services.

        Second, the recordkeeping requirement states that records must be accessible to the Department during customary business hours.  If community members contribute seed that they have labeled, they would be subject to the recordkeeping rule, but their homes are not businesses.  It is incongruent to think that this rule is really intended to apply to them.  This strongly suggests that only businesses supplying seeds are intended to be covered.  Perhaps regulators would suggest that the library itself do all the labeling in order to tie the rule to a business.  This would be burdensome, especially since the point is to create a shared community effort.  It also might lead to more error and less detailed information than labels written by the seed growers themselves.  This is not a desirable interpretation.  The only logical and administratively practical interpretation is that this law should not apply, given that individuals, not businesses, would supply and label small amounts of seed.

        Third, labeling is highly desirable, but libraries can set their own standards.  Many of the items required on a label do not make sense in a seed library context, and, again, suggest that the law is intended to apply only to business-like enterprises.  Since the germination testing requirements do not make sense in the seed library context, all of the required germination information in Sec. 4.4(2) would not be available.  Additionally, the lot information required under Sec. 4.4(4) does not fit the context of a seed library.  A “lot” is defined as “a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling.” (Sec. 2.120.)  This suggests that the person supplying and labeling seed has inventory and tracking systems and large quantities of merchandise dividable into established “uniform” packaging.  This does not suggest a few pepper seeds in a little manila envelope.  That leaves labeling the identification of the seed, the person offering it, and the year, which a seed library could easily implement and regulate on its own, without government involvement.

        Finally, the state would not lose substantial money if seed libraries are considered exempt from this law.  Permits look like they would cost $10 for a seed library, if it had to get one.  (Ill. Admin. Code title 8, sec. 230.70(a)(1).)  The cost of ensuring compliance with the statutory and regulatory requirements would no doubt exceed any money the state would collect.  Permits may be seen as a means of improving accountability, but in a small community environment, people know each other, and reputation is a great incentive for accountability.  The statute itself expresses this understanding by offering a permitting exemption for seed sold by its producer from the premises on which it was grown.  The Legislature recognized the trust and care that are transacted between people that know who each other are.  That is the same value that a community-based seed library has to offer, and that is why unnecessary impediments must be cleared for them, so that they, and the communities that make them, can thrive.

Illinois Seed Law excerpts (505 ILCS 110/1-110/16)

Sec. 2.120. "Lot" means a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors which appear in the labeling.

Sec. 2.136. "Sell" when applied to agricultural seed, vegetable seed, lawn seed, or screenings, includes the act of transferring ownership, offering or exposing for sale, exchange, distribution, giving away, or transportation in this State, storing, carrying or handling in aid of traffic therein, whether done in person or through an agent, employee, or others, and receiving, accepting, or holding on consignment for sale.

Sec. 4. Label requirements. Each container of agricultural, vegetable or other seeds designated by the Department of Agriculture which is sold, offered for sale, or exposed for sale, or transported within this State for sowing purposes shall bear thereon or have attached thereto in a conspicuous place a plainly written or printed label or tag in the English language, giving information, set out in Sections 4.1 through 4.5…

Sec. 4.4. Labeling for vegetable seeds in packets as prepared for use in home gardens or household plantings or vegetable seeds in preplanted containers, mats, tapes, or other planting devices shall include: 

    (1) Name of kind and variety of seed. 

    (2) For seeds which germinate less than the standard last established by the Director under this Act: 

    (a) Percentage of germination, exclusive of hard seed, 

    (b) Percentage of hard seed, if present, 

    (c) The calendar month and year the test was completed to determine such percentages, 

    (d) The words "Below Standard" in not less than 8-point type, and 

    (3) Name and address of the person who labeled the seed or who sells, offers, or exposes the seed for sale within this State. 

    (4) Lot identification, such as by lot number or other means. 

    (5) The year for which the seed was packed for sale as "Packed for" or the percentage germination and the calendar month and year the test was completed to determine such percentage. 

    (6) For seeds placed in a germination medium, mat, tape, or other device in such a way as to make it difficult to determine the quantity of seed without removing the seeds from the medium, mat, tape or device, a statement to indicate the minimum number of seeds in the container.

Sec. 5. Prohibitions. It is unlawful for any person to sell, offer for sale, expose for sale or transport for sale any agricultural, vegetable or other seeds designated by the Department of Agriculture within this State: 

    (1) Without an annual permit from the Department of Agriculture of the State of Illinois to engage in such business. All permits shall expire annually as set by regulation. 

    (2) Unless the test to determine the percentage of germination required by Sections 4.2 through 4.5 shall have been completed within a 12-month period (or 15-month period for cool weather grasses) exclusive of the calendar month in which the test was completed, immediately prior to sale, exposure for sale, or offering for sale or transportation unless the seed is in hermetically sealed packages or containers. 

    …

    (4) If such agricultural, vegetable or other seeds designated by the Department are not labeled in accordance with this Act or having a false or misleading labeling.

Sec. 6. Records. Each person whose name appears on the label as handling agricultural, vegetable or other seeds subject to this Act shall keep for a period of 2 years complete records of each lot of agricultural, vegetable or other seeds designated by the Department of Agriculture. A file sample of each lot of seed must be kept for one year after final disposition of that lot. All such records and samples pertaining to the shipment or shipments involved shall be accessible for inspection by the Director of the Department of Agriculture, or his agents, during customary business hours.

Sec. 10. Permits. (1) A permit from the Department of Agriculture of the State of Illinois is required of every person: 

    (a) Whose name and address are required on the label or invoice of any seed distributed or 

    (b) Who opens any bag or container of seed and sells any part of its contents. This includes persons who either label or package seed or relabel and repackage seed. A separate permit shall be required for each store or place of business where such seed is sold or offered for sale or 

    (2) No permit shall be required of persons selling only the packaged lines which have been packed and distributed by a person, firm or corporation holding and having a permit in force. No permit shall be required of persons selling, offering or exposing for sale seed of their own production provided that such seed is sold and delivered only on the farm or premises where grown. 

    (3) All permits shall be conspicuously posted in the place of business to which it applies. The permit year shall be 12 months, or any fraction of 12 months, beginning on July 1 and ending June 30. Application for permits shall be made upon forms approved and furnished by the Department of Agriculture.

Code of Federal Regulations

7 C.F.R. §201.43

“The following are minimum sizes of samples of agricultural seed, vegetable seed and screenings to be submitted for analysis, test, or examination:

    (a) Two ounces (57 grams) of grass seed not otherwise mentioned, white or alsike clover, or seeds not larger than these.

    (b) Five ounces (142 grams) of red or crimson clover, alfalfa, lespedeza, ryegrass, bromegrass, millet, flax, rape, or seeds of similar size.

    (c) One pound (454 grams) of sudangrass, proso millet, hemp, or seeds of similar size.

    (d) Two pounds (907 grams) of cereals, sorghum, vetch, or seeds of similar or larger size.

    (e) Two quarts (2.2 liters) of screenings.

    (f) Vegetable seed samples shall consist of at least 400 seeds.

    (g) Coated seed for a purity analysis shall consist of at least 7,500 seed units. Coated seed for noxious-weed seed examination shall consist of at least 30,000 seed units. Coated seed for germination test only shall consist of at least 1,000 seed units.”

7 C.F.R. § 201.54

“At least 400 seeds shall be tested for germination; except that in mixtures, 200 seeds of each of those kinds present to the extent of 15 percent or less may be used in lieu of 400, in which case an additional 2 percent is to be added to the regular germination tolerances. The seeds shall be tested in replicate tests of 100 seeds or less.”