Biopiracy/Nestle-Rooibos case

In 2010, Natural Justice partnered with the Berne Declaration to raise awareness regarding 5 patent applications by multinational food giant Nestlé. The patent applications, related to the use of South African Rooibos and Honeybush to treat skin and hair ailments, were in contradiction to both the South African Biodiversity Act and the United Nations Convention on Biological Diversity.

Rooibos and Honeybush are endemic to South Africa’s Western and Eastern Cape Provinces and have long been used for medicinal purposes. Any company intending to conduct research on commercial applications of genetic resources are obliged by South African and international law to enter into a benefit-sharing agreement and obtain a subsequent permit from the relevant government agency. The South African Department of Environment confirmed that it has not granted any such permits to Nestlé.

After substantial media campaigns (see below), Nestlé entered into negotiations with South Africa’s Department for Environmental Affairs, the agency mandated to issue bio-prospecting permits. However, after a pre-examination report by the World Intellectual Property Organization concluded that the patents failed the patentability criteria of novelty and inventive step, Nestlé decided to let the applications expire and negotiations subsequently ended.

This case highlighted the importance of the recently adopted Nagoya Protocol on Access and Benefit Sharing. Once the Protocol will be implemented on a national level, companies that use Indigenous biological resources for bio-prospecting, even if they access the resources outside of the country of origin, can be challenged through the courts of the country where the companies are located. However, in the meantime, more awareness-raising regarding appropriate conduct for bio-prospecting will be necessary.

We hope that as a result of this experience, Nestlé and its suppliers will from now on engage with the relevant authorities of the resources in question at the beginning of new bio-prospecting activities.

Resources

Read the joint press release and briefing paper, “Dirty business for clean skin: Nestlé’s rooibos robbery in South Africa” from NATURAL JUSTICE and the Berne Declaration.

The story has been covered by various media outlets, including News24, Times Live, Daily Dispatch Online, Business Report, Legalbrief Today, Undercover COP, and the UNU-IAS TK Bulletin. Nestle’s initial response was covered by Business Day and Natural Justice defended the allegations in a May 30th article by the International Centre for Trade and Sustainable Development. A full list of online media coverage from May 27-30 can be found here.

Nestle denied allegations of biopiracy in a follow-up article in the June 6th edition of the Times Live. Natural Justice and the Berne Declaration responded to the denials on June 21st. On July 2nd, the South African Civil Society Information Service published, “A Story of David versus Goliath”, which uses the Nestle patent challenge to exemplify civil society’s efforts to expose the malpractices of multinational corporations.

At the recent resumed 9th Working Group on Access and Benefit Sharing in Montreal, Natural Justice and the Berne Declaration hosted a side event on the Nestle-Rooibos and Honeybush case. On July 18th, Natural Justice was featured in a German news programme on the Nestle case and another biopiracy case involving Schwabe. The video (in German) can be viewed here.