On July 5th, the Delhi High Court dismissed PepsiCo India Holdings’ appeal[1] to overturn an order from the Protection of Plant Varieties and Farmers’ Rights Authority, effectively cancelling[2] PepsiCo’s registration of the FL 2027 potato variety. This appeal was filed by an advocate for farmers’ rights and a member of the Alliance for Sustainable and Holistic Agriculture (ASHA). The advocate had previously accused PepsiCo of being unfriendly to farmers. Before this, PepsiCo was involved in a controversial operation where they investigated farmers’ use of the disputed potato variety, resulting in legal action against nine farmers accused of infringing PepsiCo’s rights. Initially, PepsiCo sought significant damages from these farmers, but after public backlash, they reached an ostensibly ‘amicable’ resolution with unappealing terms including provisions that restricted the farmers from further utilizing the contested potato variety.
In this piece I will be dissecting some important constituents of this order and provide considerable interpretations regarding the issues revolving around inaccuracies in the applicant’s information, Registrar’s due diligence lapses in granting the application, and the Court’s apparent disregard for the public interest element of the case.
Erroneous Information and the Registration Process
The submission of inaccurate information by PepsiCo during the application process for the Certificate of Registration deserves a closer examination.
In February 2012, PepsiCo made an erroneous classification of a specific potato variety, incorrectly labeling it as a ‘New Variety’ instead of an ‘Extant Variety’ during the registration process. It’s important to note that Section 15(2) of the Protection of Plant Varieties and Farmers Rights Act, 2001, doesn’t require novelty for the ‘extant variety’ category. However, due to a timeline discrepancy in the application, it did not meet the criteria for classification as a ‘new variety.’ Despite this, the Registrar took the initiative to reclassify it as an ‘extant variety’ and proceeded with the registration, overlooking certain ambiguities in the documentation.
The controversy also centered on a Deed of Assignment that occurred between the plant breeder and Recot. Inc., which later transformed into Frito-Lay North America, Inc. (FLNA). Notably, the original legal document lacked the necessary official stamping and lacked witness attestations. An intriguing element arose when PepsiCo argued that FLNA had orally transferred the rights to the FL 2027 potato variety to PepsiCo. It’s worth mentioning that the Chairperson of the Protection of Plant Varieties and Farmers’ Rights Authority deemed this oral assertion as lacking validity. However, a significant development occurred on September 12, 2019, when FLNA corresponded with the authority, confirming that they had indeed granted PepsiCo authorization to submit the registration application.
Subsequently, the Protection of Plant Varieties and Farmers Rights Authority initiated a comprehensive re-evaluation of the application in accordance with the provisions outlined in Section 34(a), (b), (c), and (h) of the PV Act, which ultimately led to the revocation of the certificate.
Upon reviewing this case, the Court determined that the Authority had appropriately revoked the registration, adhering to the stipulations delineated in Section 34 of the PV Act. Through meticulous consideration, the Court established that PepsiCo’s communication did not conform to the officially prescribed Form PV 2 and had been submitted after the registration had already been approved. As a result, the Court rightly acknowledged that PepsiCo had obtained the registration without adhering to the prescribed procedural prerequisites, and their efforts to rectify the deficiency in documentary evidence only materialized when the authority questioned the legitimacy of the registration.
Court’s Interpretation of Public Interest
The court’s ruling may initially appear to favour the farmers but overlooks the crucial aspect of ‘public interest,’ which formed the basis for the Protection of Plant Varieties and Farmers’ Rights Authority’s decision to revoke the Certificate of Registration. From the Authority’s perspective, ‘public interest’ encompassed the adverse consequences faced by the farmers and the looming financial burdens from allegations of infringing on the protected plant variety. Conversely, the Court argued that even if the company’s infringement claims lacked merit, they should not be seen as conflicting with ‘public interest.’ This stance was upheld despite the farmers’ prolonged legal battles, risking their economic stability.
The Court refrained from specifying criteria for revoking registration under Section 34 (h) of the PV Act. A closer look at this provision, particularly the phrase “the grant of the certificate of registration is not in the public interest,” reveals its broad interpretation by the Authority. However, by overturning the previous decision, the Court not only departed from this interpretation but also failed to provide guidance on a more precise interpretation, potentially influencing future legal interpretations.
Implications and Conclusion
Recognizing the Registrar’s oversight in scrutinizing the application before approval prompts consideration of potential legal repercussions for legitimate certificate holders. The irregularities surrounding the registration certificate issuance highlight the need for adherence to statutory safeguards. This case, despite such safeguards, exposes lapses in the overseeing authority’s duties, underscoring the importance of vigilance. Furthermore, the case emphasizes precision and diligence in registration processes, questions the role of public interest in revocations, and calls for clearer criteria to protect farmers’ rights amidst corporate interests.
Firstly, it sheds light on the importance of accurate information and due diligence in the registration process. PepsiCo’s erroneous classification of the potato variety as ‘New Variety’ rather than ‘Extant Variety’ raised questions about the company’s understanding of the legal requirements, while the Registrar’s lapses in not declining the application despite discrepancies added to the controversy. This case underscores the need for a meticulous review process in granting plant variety registrations to maintain the integrity of the system.
Secondly, the court’s interpretation of the public interest dimension is a matter of concern. While the Protection of Plant Varieties and Farmers’ Rights Authority cited public interest as a reason for revoking the registration, the court disagreed, potentially leaving farmers vulnerable to prolonged legal battles and financial burdens. This raises questions about the role of public interest in such cases and calls for a clearer delineation of criteria for revoking registrations to ensure the protection of farmers’ rights.
Lastly, the case highlights the broader issue of the corporatization of agriculture. PepsiCo’s attempt to assert exclusive rights over the potato variety, the legal actions against farmers, and the subsequent ‘amicable’ resolution with unpleasant terms raise concerns about the power dynamics between multinational corporations and small-scale farmers. The court’s decision to annul PepsiCo’s registration can be seen as a positive step towards averting the corporatization of agriculture and protecting the interests of farmers.
In conclusion, the Delhi High Court’s decision in the PepsiCo FL 2027 potato variety case underscores the importance of accuracy and due diligence in plant variety registrations raises questions about the interpretation of public interest, and highlights the need to safeguard farmers’ rights in the face of corporate interests. It serves as a notable case in the ongoing debate about the role of corporations in agriculture and the protection of farmers’ livelihoods.
[1] Pepsico India Holdings Pvt. Ld. vs Kavitha Kuruganti on 5 July 2023, Delhi High Court, https://indiankanoon.org/doc/144350514/
[2] PUBLIC NOTICE 19 OF 2021 -ORDER DATED 3rd DECEMBER, 2021 OF LD. CHAIRPERSON – REVOCATION OF FL 2027 POTATO VARIETY REGISTERED IN FAVOUR OF PEPSICO INDIA HOLDINGS PRIVATE LIMITED, https://www.plantauthority.gov.in/public-notice-19-2021-order-dated-3rd-december-2021-ld-chairperson-revocation-fl-2027-potato-variety
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