Increasing interest in cover crops, especially mixtures of crop varieties, is generating questions from producers, seed retailers and seed variety owners. All seed sold for use as a cover crop must be labeled according to state seed laws.

“Most varieties of cereals and legumes utilized in cover crops are protected by intellectual property laws,” says Ken Bertsch, North Dakota’s state seed commissioner. “Plant variety protection (PVP) and plant patents granted to variety owners prohibit the unregulated purchase and/or sale of most of these seed products and must be observed when buying or selling seed that is used for any purpose. The days of going to the local elevator and buying common oats or barley to spread as a cover crop are gone.”

Seed laws and variety protection laws can be confusing, but there are some general rules that apply in nearly every case:

• If the seed is being sold, whether for commercial crop production or cover crop use, it must be labeled. The label must include seed purity, germination, noxious weed seed amounts and name of the seed variety (when applicable under seed law).
• In most cases, if a farmer wishes to use his own grain as a fallow cover crop, he may do so without restriction. PVP language includes a “saved seed” provision, which means cereal crop varieties (commonly used as cover or in a cover mix) may be replanted on your farm. However, seed that is protected by any version of PVP may not be sold or transferred to another party without the approval of the variety owner. This “replant provision” does not apply to seeds that are protected by a patent. Patent protection is more common in the marketing of soybean and corn seed.
• If the seed is being sold as a cover crop mixture or blend, each of the components must be tested, listed and labeled appropriately.

“The issue of the sale of cover crop mixtures is more complex if the mixture contains a PVP Title V variety,” Bertsch says. “PVP Title V requires that the seed only be sold as a class of certified seed (foundation, registered or certified) and be labeled accordingly. However, when certified seed is mixed with noncertified seed, the resulting mixture no longer is certified and cannot be represented as such on labels or containers.”

Certified and noncertified seeds may be used in mixes if the following requirements are met:

• The seller obtains permission from the variety owner to use the protected variety in a mixture.
• The seller uses a PVP Title V variety that has been certified by an official seed certification agency, such as the State Seed Department, and labels the seed as a protected variety.
• The seller retains proper records of the seed mixture and its components. It also is advisable for the purchaser to retain labels/records of seed purchased for cover crop use.

Any questions regarding variety protection, seed labeling or seed laws can be directed to the State Seed Department at (701) 231-5400. State seed laws may be found at http://tinyurl.com/ndslaws.

NDSU Agriculture Communication – Aug. 28, 2014