Access and Benefit Sharing Agreements, Commercialisation of IP, Council of Scientific and Industrial Research, Hoodia Gordonii Cactus, Kalahari Desert, Phytopharm, San People, South Africa, Southern Africa, Threat to Biodiversity, UK Pharma
By Wanjiku Karanja**
The Hoodia Gordonii is a species of cactus originating from the Kalahari Desert of Southern Africa. The indigenous San people of Southern Africa have used this plant for generations to stave of hunger and thirst in their harsh arid environments. It is in this respect one of the most famous bio-piracy cases due to the questions that it raises on the efficacy of access and benefit sharing agreements (ABS) in the protection of traditional knowledge.
The San’s traditional knowledge of Hoodia’s appetite suppressive qualities was published by apartheid era botanists and used by South Africa’s Council of Scientific and Industrial Research (CSIR) in isolating an appetite suppressing molecule which they christened P 57. CSIR patented the extraction process and licensed it to UK pharmaceutical firm Phytopharm. Phytopharm then developed a new “cure” for obesity on the basis of P 57 and obtained a patent for its application, which they licensed to Pfizer for US$ 21 million. Its application into a food supplement and/or prescription medicine had considerable financial potential due to the large market potential for the dietary control of obesity; an estimated $3 billion per annum in the United States alone.
The San were not informed of the commercialization of their traditional knowledge nor was their consent for the same obtained. They were, moreover, excluded from lucrative deals being struck between CSIR and Phytopharm (UK) to develop the drug. When questioned Phytopharm’s director went as far as to state that he believed that the San were extinct. Their claim to their traditional knowledge of the plant and its uses continued to be ignored until the year 2003 when CSIR, after intense political pressure, negotiated an access and benefit sharing agreement with the South African San Council.
This agreement, which established the collective ownership by the San community of their traditional knowledge on Hoodia’s appetite suppressing properties provided that:
– The San would receive 6% of all royalties received by the CSIR from the sale of Phytopharm products and 8% of milestone income when certain targets were achieved.
– The revenue earned would be paid into a Trust jointly established by the CSIR and the South African San Council with the objective of raising the San’s standard of living.
While this agreement was, at the time, hailed as a breakthrough in the successful negotiation of an ABS designed to benefit the indigenous community, it had the following shortcomings.
Firstly, although the San could receive a considerable amount of money, this would be only a fraction of net sales of the product. This is because monies received by the San would be extracted from royalty and milestone payments obtained by the CSIR. The agreement further explicitly protected Pfizer and Phytopharm from any further financial demands by the San.
The agreement prevented the San from pursuing viable commercialization options based on non-patented herbal medicines as opposed to patented pharmaceutical drugs or other products. It further precluded the San from claiming any benefits from Hoodia-based products, which use San traditional knowledge of Hoodia in their promotion and did not require CSIR or Phytopharm to prevent other products from emerging on the market that would infringe the patent and thus limit the benefits received by the San.
Furthermore, it failed to provide for the use of CSIR’s royalties in assisting the San with training in cultivation, harvesting of material for clinical trials, education, conservation or capacity building. It ignored the fact that local San institutions were weak and not equipped to handle the inflow and distribution of potentially large sums of money.
Pfizer’s merged with Pharmacia in 2003 and transferred its rights back to Phytopharm temporarily hampering the implementation of this agreement. In 2004 however, Unilever entered into a joint development agreement with Phytopharm and launched a mass cultivation programme of the cactus for the implementation of the P27 molecule in its Slim Fast ® line of diet drinks.
Unilever’s involvement generated a large amount of interest resulting in the unregulated collection of the cactus from the wild by opportunists seeking to profit from the hype generated by Unilever’s clinical trials. This unfettered exploitation resulted in the inclusion of the species in Appendix II of the Convention on International Trade in endangered Species (ITES). Unilever eventually abandoned its clinical trials citing safety concerns. The much-touted million-dollar income for the San from the exploitation of the cactus was thus relegated to a pipe dream and the San to-date remain amongst the most marginalised people in Southern Africa
Aside from establishing the environmental and commercial risks in bio prospecting, this case raises pertinent questions as to the actual benefit realised by ABS agreements to the indigenous communities. It illustrates the importance of:
– Placing access and benefit sharing agreements in the context of the infrastructural and developmental challenges faced by indigenous communities.
– Recognising the broader threat posed to biodiversity by “linear” ABS agreements.