An analysis of questioning made to the Supreme Court that did not have the merit analyzed

A controversy surrounding the rules of citrus production recently reached the Supreme Court (STF) through the Direct Action of Unconstitutionality (ADI) 7.045, filed by the Brazilian Democratic Movement Party (MDB). The action questioned the constitutionality of the requirement to produce citrus seedlings with substrate that does not contain soil,[1] established in Article 28 of the Normative Instruction 48/13 (IN 48/13), the Ministry of Agriculture, Livestock and Supply (Map).

The court did not analyzed the merits of the ADI since Minister Carmen Lucia, rapporteur of the action, in December 2021, pointed out procedural defects and denied continuation, a decision that passed in judgment in February this year.

By the weight of this culture in the country's economy - Brazil is a world leader in the production and export of oranges and concentrated juice – it is worth making a brief history of the facts that serve as a context for the formulation of Article 28 of IN 48/13 and to evaluate whether the norm established by it hurts the Constitution.

The State of São Paulo concentrates the largest production of orange and orange juice in the world[2]. It develops excellent work in the area of research and development,[3] vital activity for the modernization of the sector and its adaptation to the growing regulatory requirements, both internally and externally. These requirements are expressed, for example, in state[4] certification requeriments  of independent bodies.

Particularly in the citrus industry, there is an increasing demand for the quality of products and the way they are produced, in addition to the concern about the impacts on the environment and the way the social benefits of this activity are distributed.

Some of these issues were already somewhat present in the late 1990s when there was a change of technology in the installation and production of seedling nurseries and citrus seeds. The measure aimed to prevent the spread of diseases that impacted citrus production in the country and that could endanger the environment, and consumer health and impact the economy.

Until 1997, the production of seedlings for citrus planting in the state of São Paulo occurred in the open, which facilitated the spread of diseases, especially those whose contamination occurs directly through the soil.[5] With Ordinance CATI-7/1998,[6] the marketing and transport of rootstocks and citrus seedlings produced in this environment were prohibited, which contributed to containing the spread of diseases and pests.

Currently, all the production of citrus nurseries in São Paulo follows state and federal legislation on the subject and seeks to align with the technological and scientific advances achieved in the area.

Article 28 of IN 48/13 is part of this context. But, at the disposal that "the production of citrus seedlings will be allowed only with the use of a substrate that does not contain soil", is he in front of the Constitution?

At the federal level, Article 1 of the Law 10.711/03 establishes that the national system of seeds and seedlings, "established in accordance with this law and its regulation", "aims to ensure the identity and quality of the material of multiplication and plant reproduction produced, marketed and used throughout the national territory".

That is, there is an express legal authorization of regulation for infralegal acts. The same interpretation may be given to Article 23, Caput, and §4, which conditions the certification process of seeds and seedlings and production to compliance with "the relevant standards and standards".

In addition, Article 2 of the Federal Decree 10,586/20, which regulates Federal Law 10.711/03, establishes that the Map is responsible for "the edition of the complementary acts and norms provided for in this Decree".

Article 54, which states that the "seedling production process comprises the production of propagating material and the production of seedlings in the nursery or in vitro propagation unit, in accordance with the provisions of a complementary standard, shall also be noted, and is finalized with the issuance of the sales invoice by the producer", and Article 102, which provides that "commercial operations of export and import of propagating material shall be carried out in accordance with the provisions of this Decree and complimentary standard".

It is concluded, therefore, that the provisions of IN 48/2013 followed the federal legislation on the matter, before the express authorization for the Map to regulate the production of seedlings and seeds.

From the point of view of the Constitution, the Supreme Court has a consolidated understanding that the "constitutional text of 1988 is clear when authorizing state intervention in the economy, through regulation and regulation of economic sectors", provided that in accordance with the principles of the economic order.[7]

For all this, it does not seem possible to affirm that Article 28 of IN 48/2013 violates Federal Law 10.711/03 or the Constitution and, therefore, would not fit the questioning under ADI 7045.


[1] In 2017, the deadline for producers to meet this standard ended.

[2] This concentration brings us a relevant data: for every five glasses of orange juice consumed in the world, three were produced in the country. Information on the citrus industry and the orange market can be found on the website of the National Association of Citrus Juice Exporters (CitrusBR). Available in: https:// Access: 3.4.2021.

[3] See the agronomic institute (IAC), which maintains in Cordeirópolis, interior of the state, the Sylvio Moreira Citrus Center, and also several partnerships with various associations and foundations.

[4] In this scenario, the newly created "Seal More Integrity" Award, through Ordinance 402 of February 23, 2022, of mapa, is highlighted, aimed at rewarding companies and agribusiness cooperatives that develop good practices of integrity, ethics, social responsibility and environmental sustainability.

[5] For example, the Phytophthora (Nicotianae Phytophthora, which is the common cause of rot of the foot and root, and Phytophthora Palmivora, which causes brown fruit rot, as well as root rot in poorly drained soils with high groundwater). Information available at: Access: 2.4.2022. And nematodes, organisms of varying sizes and abundant in soil and water. Information available at: Access: 2.4.2022.

[6] SÃO PAULO (State). Ordinance CATI 7, of February 10, 1998. Official Gazette of the State, Executive Branch, São Paulo, 13 Feb. 1998. Section 1.

[7] "(...) the constitutional text of 1988 is clear when authorizing state intervention in the economy, through the regulation and regulation of economic sectors. However, the exercise of such prerogative must be adjusted to the principles and foundations of the Economic Order, in accordance with Art. 170 of the Constitution. Thus, the faculty granted to the State to create norms of state intervention in the economy (...) does not authorize the violation of the principle of free enterprise, the foundation of the Republic (art. 1) and the Economic Order (art. 170, caput) - (RE 422.941 - Rel. E. Ministro Carlos Velloso DJ 24.03.2006).