Growing protection for plant varieties: changes coming to Canada’s Plant Breeders’ Rights Regulations

The Canadian Food Inspection Agency (CFIA) published proposed amendments to the Plant Breeders’ Rights Regulations (PBR Regulations), initiating a public consultation period that will close on October 18, 2025. The changes are proposed to strengthen protection for plant breeders by providing additional incentives for investment and innovation. 

What you need to know

If enacted, the proposed amendments would implement the following:

• Narrow the scope of the farmers’ privilege exemption. Farmers’ privilege exemption would be narrowed to small grain agricultural crops, such as cereals (wheat, barley, oats, etc.) and pulses (peas, lentils, chickpeas, etc.).
• Increase the duration of PBR protection. For potatoes, asparagus and woody plants, the duration of PBR protection would be increased from 20 to 25 years.
• Exclude advertising from novelty determination. Advertising would be excluded from determination of novelty such that a plant variety would still be eligible for PBR protection if advertised before being available for physical sale.
• Update PBR filing requirements. Three key updates to the PBR filing application requirements are proposed to encourage PBR applications: (1) simplifying the assignment requirements; (2) reducing the online PBR application fee; and (3) authorizing the Commissioner to grant applicants additional time to submit propagating material in exceptional circumstances.

Key changes introduced by the proposed amendments to the PBR Regulations

Narrowing the scope of the farmers’ privilege exemption

Farmers’ privilege is an exemption to plant breeders’ rights that provides farmers with the ability to save and reuse seeds from protected plant varieties in subsequent years¹. While the exemption recognizes the long-standing practice of farmers in relation to certain small grain agricultural crops, such as cereals and pulses, farmers’ privilege is currently not limited to those crop types.  

Under the proposed amendments, seeds from the following plant types will no longer qualify for exemption:

• fruits, vegetable and ornamental plants;
• plants reproduced through vegetative propagation (e.g., via cutting, budding, grafting, etc.); and
• hybrid varieties, including their parental varieties.

The proposed amendments to the farmers’ privilege are intended to align with other jurisdictions and be consistent with the International Union for the Protection of New Varieties of Plants (UPOV)’s interpretation of the exemption.

Extending the duration of plant breeders’ rights protection for potatoes, asparagus and woody plants

Under the current PBR framework, a maximum of 20 years PBR protection is provided for potatoes, asparagus and woody plants (e.g., berry fruit and flowering shrubs)². The proposed amendments seek to extend this maximum duration to 25 years for these specific crops, taking into consideration the time frame required to breed and support market adoption of these crops.

This change is intended to more closely align Canada’s PBR protection terms with the terms of key trading partners, such as the European Union, which provides a 30-year term of protection for these crop varieties.

Excluding advertising from novelty determination

To apply for PBR protection, a variety must be considered new or novel³, which is assessed based on determination of prior sale⁴. Based on the current definition of “sell” in the Plant Breeders’ Rights Act, any advertising of a plant variety without physical sale would bar the plant variety from being eligible for PBR protection. The proposed amendments would exclude “advertising or any exposure that is not for a consideration” from determination of novelty, so that a plant variety would still be eligible for PBR protection if advertised before being available for physical sale.

The proposed amendment is intended to align with international standards and remove any ambiguity regarding the novelty requirement.

Updating PBR filing requirements

The proposed amendments include several modifications to the filing requirements for plant breeders’ rights:

• Simplified assignment requirements. The current procedures require an original witnessed assignment, where applicable. The proposed amendments remove the requirement for a witness and for an original document (a digital copy will suffice). A counter-signature is still required, and timing requirements still apply.
• Application fee adjustment. The current fee structure requires applicants who file electronically to pay both the UPOV PRISMA online filing fee and the Canadian filing fee to the Plant Breeders’ Rights Office (PBRO). The proposed amendment would reduce the Canadian electronic filing fee by the amount of the UPOV PRISMA filing fee to encourage online applications⁵.
• Submission of propagating material. Currently, an applicant must provide the PBRO with a sample of propagating material (e.g., seeds) at time of filing a PBR application⁶. The proposed amendments would allow the Commissioner to grant additional time for submitting the propagating material in exceptional circumstances.

What’s next

Comments on the proposed amendments to the PBR Regulations may be made online until October 18, 2025. Once the consultation closes, all submitted comments will be published online, and the CFIA will consider the feedback and publish the final regulations in the Canada Gazette, Part II, which is anticipated in 2026. The proposed regulations will come into force on the date of publication in the Canada Gazette, Part II.