Explained: The court tussle over potatoes used to make Lay’s chips

The battle over the potato variety grown exclusively for the popular Lay’s chips brand is on.

The Delhi High Court on 12 September, hearing a plea by PepsiCo India against a 2021 order revoking the patent of the company on the FC5 potato variety grown exclusively for its popular Lay’s potato chips, adjourned the case.

The matter will next be heard on 2 November.

But how did this legal battle over the FC5 potato variety begin? How did it reach the Delhi High Court? What does the law in India say?

Let’s have a closer look:

PepsiCo sues Indian farmers

It all kicked off in April 2019 with PepsiCo, alleging infringement of its intellectual property rights (IPR), suing nine Gujarat farmers for cultivating the FC5 potato variety.

That variety, registered in the US as  ‘FL 2027’ in 2005, was introduced in India in 2009.

In 2016, the multinational company listed the FC5 potato variety under the Protection of Plant Variety and Farmers Rights Act, 2001.

What does the law say? 

The Protection of Plant Variety and Farmers Rights Act, 2001, provides the “establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.”

Laying down the farmers’ rights, the law states that “a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before coming into force of this Act”.

However, farmers cannot sell branded seeds i.e. “seed put in a package or any other container and labelled in a manner” that signals it is of a protected variety under the Act.

Why is ‘FL 2027’ so special?

‘FL 2027’ has five per cent less moisture content (80 per cent) than other potato varieties (85 per cent). Due to this, FL 2027 is deemed more suitable for producing snacks such as potato chips, as per ThePrint.

Facing intense backlash from politicians and farmers, the company withdrew the lawsuit in April 2019.

PepsiCo said in a statement it was “relying on the said discussions to find a long term and an amicable resolution of all issues around seed protection”, reported ThePrint.

But the matter was far from finished.

ASHA challenges patent

In June 2019, Kavitha Kuruganti, farmers’ rights activist and convenor of the Alliance for Sustainable and Holistic Agriculture (ASHA), filed an application for revocation of intellectual protection granted to PepsiCo’s FC5 potato variety, accusing the company of violating farmers’ rights over plant varieties.

In December 2021, PPVFRA ruled PepsiCo cannot claim a patent over a seed variety.

The order noted discrepancies in the document furnished by PepsiCo claiming it was the owner of the FL 2027 potato variety.

“No doubts remain in the claim of revocation applicant (Kuruganti) that several farmers have been put to hardship including the looming possibility of having to pay huge penalty on the purported infringement they were supposed to have been committing which did not eventually happen as on date, simply because without being the legitimate breeder or his successor and also not being the assignee of the breeder of the potato variety FL 2027, the Registered Breeder (PepsiCo) exercised his Plant Breeder’s right to file a suit for infringement against farmers (though it was subsequently withdrawn) the fact is that they have been put to hardship. This violates public interest,” ThePrint cited the authority’s order as saying.

Kuruganti hailed PPVFRA’s decision as a “victory” for Indian farmers.

“This judgment is a historic victory for the farmers of India. It should also prevent any other seed or food corporation from transgressing legally granted farmers’ seed freedoms in India,” she was quoted as saying by The Hindu.

What do experts say? 

The PepsiCo case flared a row between farmers’ rights and plant-breeding companies’ bids for stringent intellectual property rights (IPR) in developing countries, notes IndiaSpend.

“The PepsiCo India case is reflective of how companies, when they have rights on seeds, tend to use it coercively to protect their interest, even if it means farmers’ interests are compromised,”  Kiran Kumar Vissa, a Hyderabad-based activist with the Association for India’s Development, told IndiaSpend.

Shalini Bhutani, an expert IPR in agriculture and biodiversity, was quoted as saying by The Hindu that that the order set a precedent that “farmers’ rights cannot be taken lightly by IPR-holders”.

“This should prevent further intimidation of farmers through vexatious IP lawsuits,” Bhutani was quoted as saying by Article 14.

Sarah Hasan Usmani, a Netherlands-based lawyer working with Corsearch, said PepsiCo suing Indian farmers was not correct.

However, Usmani stressed on the importance of IPR protection for plant varieties, saying a lack of protection harms breeders, reported IndiaSpend.

With inputs from agencies

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