Food Giant Nestlé Accused of Biopiracy
Nestlé, the world's largest food company, is facing allegations of biopiracy after it applied for patents involving two plants found in South Africa without having negotiated permission to use them with the South African government.
In what they have dubbed the "rooibos robbery," the Berne Declaration, a Swiss advocacy organisation, and Natural Justice, a South African environmental group, are accusing Nestlé of having violated South African law and the Convention of Biological Diversity (CBD).
At issue are two plants found in South Africa, rooibos and honeybush, both of which are commonly used to make herbal teas. Nestec, a Nestlé subsidiary, filed four international patent applications for using the plants or extracts from them to treat hair and skin conditions such as acne, wrinkles, and hair loss. A fifth application sought patent protection for using rooibos as an anti-inflammatory. It is seeking patent protection in a large number of countries around the world, including South Africa.
Benefit-sharing a key issue
According to Natural Justice and the Berne Declaration, the South African Biodiversity Act -- the country's implementing legislation for the CBD - requires companies to get a permit from the government if they intend to use South African genetic resources for research or patenting. These permits can only be obtained with a benefit-sharing agreement.
In a press release, Natural Justice and the Berne Declaration said that South Africa's department of environmental affairs told them that Nestlé never received permits to use rooibos and honeybush.
"Based on the information provided," the groups said, "it is clear the patents of Nestlé and the research on which they are based are in contradiction with South African law and the CBD."
Although best known for food product brands such as Nescafe, Nespresso, and Gerber, Nestle is active in the cosmetic industry. It owns over a quarter of l'Oréal, the world's largest cosmetics firm; the two companies together own Laboratoires Innéov, a nutritional cosmetics venture.
"Nestlé builds its new business on illegally accessed material, precluding South Africa of their rightful share of benefits. Such illegal behaviour must no longer be supported by the patent system and tolerated by our governments," said François Meienberg of the Berne Declaration.
Plants not sourced in South Africa, Nestlé says
Nestlé this week rejected the accusations. According to a report in the South African newspaper Business Day, company spokesman Ravi Pillay said that Nestlé had neither sourced the plants in South Africa nor done research on them there. South African suppliers had provided rooibos and honeybush extracts and material to two Nestlé research facilities in Switzerland and France, which then used it for basic research on active ingredients.
Following this research, he said, Nestec filed several patents to protect its research results, which showed potential benefits for consumers. "Nestec has not filed any patent relating to the plants themselves, or extracts of the plants. Nestlé has not made any commercial use of these patents, and has no plans to do so in the near future," he added.
Pillay said that if Nestlé decided to use the patents commercially, it would comply fully with the benefit-sharing provisions in South African law.
However, Johanna von Braun of Natural Justice in Cape Town said that, under South African law, the commercial phase of bioprospecting begins once a patent application has been filed. At this early phase, a permit - which would include a benefit sharing agreement and a material transfer agreement - has to have been submitted regardless of where the research takes place, she said.
Von Braun said that the companies that supplied the rooibos and honeybush to Nestlé had also not secured permits.
International law unclear on "ex-situ" resources
There is a lacuna in international patent law about who owns genetic resources once they have been removed from their country of origin. The Convention on Biological Diversity clearly specifies that genetic resources are under national sovereignty. But it is less clear about Nestlé's responsibilities vis-a-vis genetic resources from another continent supplied to it in Europe.
South African law, however, is quite clear: it specifies that all indigenous biological resources are those historically from South Africa.
The terms under which the South African suppliers provided the plants to Nestlé mattered, von Braun explained. "If they're exporting rooibos to make tea, they don't need a permit. But if they were going to be used for research, the suppliers would have needed an export permit including a bioprospecting application from Nestlé."
Since 2002, parties to the Convention on Biological Diversity have been negotiating an international regime on access and benefit sharing. This would create firmer rules about the use of genetic resources, including so-called "ex situ" resources that are no longer in their country of origin.
"The Nestlé case highlights the urgent need of a new protocol that prevents the misappropriation of genetic resources and associated traditional knowledge," said Kabir Bavikatte from Natural Justice. "Only a strong protocol will protect developing countries from an unlawful exploitation by companies."
ICTSD reporting; "Nestlé denies ‘Rooibos Robbery'," BUSINESS DAY, 28 May 2010.