Rachel Wynberg
Abstract: Hoodia gordonii, an indigenous plant used by San peoples in southern Africa to suppress their appetites, is just one of many indigenous plants that corporations and other organizations have sought to discover, patent, and market. Such efforts to co-opt and commercialize the traditional medicinal knowledge of indigenous peoples have been called “bioprospecting” and even “biopiracy.” The case of hoodia and other plants in South Africa suggests the problems with such arrangements, and the emergence of new, more equitable forms of benefit sharing.
Keywords: traditional knowledge, indigenous peoples, hoodia, southern Africa, Nagoya Protocol
Light green in color, snarled, prickly, bursting with promise when watered, withered and shriveled when not—who could have imagined that this unassuming plant would become so emblematic of indigenous peoples’ struggles and the fight for fair reparation?
The story emerges from the arid regions of southern Africa, where the succulent plant Hoodia gordonii, or hoodia, has long been used to stave off hunger and thirst by the indigenous San peoples. This knowledge was published by colonial botanists and was later used by the South African–based Council for Scientific and Industrial Research (CSIR), one of the largest research organizations in Africa, to investigate the plant’s potential as an appetite suppressant. In 1997, after a lengthy period of development, the CSIR patented use of the active constituents of the plant that are responsible for suppressing appetite. Deals were subsequently struck with the UK-based company Phytopharm and pharmaceutical giant Pfizer to develop an antiobesity drug. When these fell through, another agreement was negotiated—this time with Unilever, one of the largest consumer companies in the world, to develop a diet drink.
Up until 2001, San communities had no idea that their knowledge of hoodia had commercial application, and that this knowledge had led to research, scientific validation, and the filing of international patents by the CSIR. They were, moreover, excluded from lucrative deals being struck to develop commercial products. In 2001, the South African San Council was alerted to the use of San knowledge without consent. Astonishingly, the CSIR had told Phytopharm that the hundred-thousand-strong San “no longer existed”—a statement later defended by the CSIR as a response on their part to avoid raising expectations.
Political pressure and intense media coverage forced the CSIR to negotiate with the South African San Council, leading to the adoption of a benefit-sharing agreement in 2003. The agreement stated that San would obtain 6 percent of all royalties received by the CSIR from Phytopharm for products, and 8 percent of income received by the CSIR when certain product-development targets were reached. Money was to be paid into a trust set up jointly by the CSIR and the South African San Council, “to raise the standard of living and well-being of San peoples of southern Africa.” Strict rules were developed to distribute the funds. San representatives recognized that the San community held knowledge about the plant collectively, and therefore an agreement was reached to share the money among all southern African San.
The involvement of the indigenous San peoples, and the intrigue of a plant that may simultaneously tackle the Western affliction of obesity and the social and economic developmental challenges of San communities, triggered the public’s imagination at a time when disparities between rich and poor have never been greater. For some, the case illustrated the possibilities of bioprospecting—the search for biological material with commercially valuable genetic and biochemical properties—and a final, albeit tenuous and equivocal, delivery on the long-standing promises of equitable benefit sharing in the Convention on Biological Diversity (CBD) and its Nagoya Protocol. For others, it typified the problems of biopiracy, where traditional knowledge is appropriated without the consent of the holders of that knowledge.
The agreement was hailed initially as a significant breakthrough in the access and benefit-sharing impasse. Here was an example of how the CBD could work in practice to benefit both indigenous communities and those seeking to reap profit from traditional knowledge and biodiversity. The global weight-loss and weight-management market is currently estimated at a massive $148 billion; thus, returns were expected to be high. But very soon the cracks began to show. Further analysis revealed that although the San Council might receive a considerable amount of money, this would be minuscule in comparison with the profits gleaned. Monies received by the San Council would be extracted from royalties received by the CSIR, but profits of Pfizer and Phytopharm were to remain untouched. Was this equitable benefit sharing? The requirement for the San Council to have an exclusive agreement with the CSIR was also troubling, since it would reduce any other opportunities that might arise for the San Council to benefit from use of hoodia. What if the Pfizer deal fell through?
These concerns were to some extent prophetic. In 2003, Pfizer merged with Pharmacia and closed its Natureceuticals group, which had been responsible for developing hoodia. Pfizer discontinued clinical development of the drug and handed the rights back to Phytopharm. In 2004, the consumer giant Unilever stepped in through a joint-development agreement with Phytopharm and began investigating hoodia as an ingredient for its line of SlimFast drinks. A massive cultivation program was launched, involving over three hundred hectares of hoodia in South Africa and Namibia, clinical safety trials, manufacturing, and an agreement to develop a $75-million extraction facility.
Caught up in the hoodia frenzy, a swathe of opportunistic hoodia growers and traders emerged. The CSIR patent was focused on the hoodia extract, and nothing prevented other companies from simply selling raw hoodia material for incorporation into herbal supplements. Unregulated collection from the wild soared, and by 2004 concerns about the threats posed to natural populations had led to the inclusion of hoodia species in Appendix II of the Convention on International Trade in Endangered Species (CITES), an international agreement that aims to ensure that trade in wild animals and plants does not threaten their survival. Dozens of hoodia products were being advertised on the Internet and sold in drugstores and pharmacies as diet bars, pills, creams, and drinks, traded by a myriad of companies using the publicity and clinical trials of Phytopharm and Unilever. San were receiving no benefits from these products, many of which were also of dubious authenticity and quality. Rising concerns about environmental impacts and quality led to a more regulated industry based on cultivated material. Those involved in growing hoodia for the herbal and dietary supplement market also negotiated another benefit-sharing agreement with the San Council. As the hoodia industry became more organized, it was dealt a blow by the sudden withdrawal of Unilever in 2008, which announced that it was abandoning plans to develop hoodia as a functional food because of safety and efficacy concerns. Although some hoodia herbal products remain on the market today, the multi-million-dollar projections of profit remain elusive.
Despite these disappointments, the effect of the hoodia case has been catalytic. Although commercialization has generated relatively insignificant monetary benefits for San communities (about $50,000 to date), more importantly, the case has demonstrated a “workable” model for benefit sharing with indigenous peoples—a feat long considered unachievable by industry skeptics. At the same time, capacity has been built within San communities to negotiate with industry and leverage benefits. Claiming to be primary traditional knowledge holders of all southern African biodiversity, San communities are now at the frontline of any deals proposed to commercialize the region’s biological resources. This has paid rich dividends. South Africa’s Biodiversity Act, for example, requires any company wishing to exploit the country’s indigenous biological resources—or traditional knowledge associated with these resources—to demonstrate that it has both received prior informed consent of affected communities and negotiated a benefit-sharing agreement.
With the precedent set through hoodia, the South African San Council has since negotiated a suite of such agreements. Sceletium tortuosum, for example, a succulent plant well known for its mood-enhancing properties, is the subject of a 2010 benefit-sharing agreement between the San Council and HG&H Pharmaceuticals. This led to HG&H securing the first bioprospecting permit ever issued under South Africa’s Biodiversity Act. San Council benefits include 5 percent of net proceeds received by HG&H and an annual exclusivity payment of 1 percent on sales. In return, the San Council is expected to exclusively endorse products, allow the use of their logo, and assist with marketing and branding. The patented product, dubbed Zembrin, has secured GRAS (generally regarded as safe) status in the United States and is marketed as an evidence-based botanical supplement to treat stress and anxiety. To date about $50,000 has been received by the San Council from this agreement.
In a similar example, an agreement between the South African San Council, the National Khoisan Council, and a local pharmaceutical company, Cape Kingdom Nutraceuticals, gives San and Khoi communities 3 percent of the profits from products emerging from the use of buchu leaves (Agathosma betulina and Agathosma crenulata), from which an essential oil is extracted that is used widely in the international flavor and fragrance industries and that is also an important tonic, anti-inflammatory, antiseptic, and diuretic. As for plants of the Sceletium genus, the agreement stipulates that the San and Khoi communities will “offer their cooperation and collaboration” to provide endorsement and marketing assistance, although financial benefits to date have been scant.
A third agreement, founded on the back of the highly successful rooibos (Aspalathus linearis) tea industry, involves the San Council in an agreement with Nestlé, the world’s largest food company, based on the development of a novel tea product. Ironically, the agreement emerged following, and perhaps because of, a highly controversial case. Nestlé had previously filed several rooibos patents without first securing permits from the South African government. Negative media publicity and biopiracy accusations led to the subsequent withdrawal of these patents by Nestlé. While implementation of the agreement is still embryonic, it represents one of the first in an industry that, in contrast to the pharmaceutical sector, has very low levels of awareness about the contested arena of access and benefit sharing.
Such initiatives, on the face of it, signal a sea change in the way in which biodiversity business is conducted. Companies and researchers now have a legal obligation to “do the right thing.” Indigenous peoples are now duly included as beneficiaries in ventures exploiting their knowledge. Governments can now proudly assert their adherence to international agreements and their commitment to addressing poverty and inequality.
But amid this optimism there is some cause for concern. San remain among the most marginalized peoples in southern Africa, with a long history of dispossession, persecution, and relocation. Most live in remote, harsh, and arid environments, eking out a living through agriculture, livestock, wage labor, and the harvesting of nontimber forest products on land to which they have no rights or traditional claim. Many San live below the poverty line and face extreme hardship in terms of access to social services, employment, and income-generating opportunities. Introducing large sums of money into such communities could have potentially divisive and even catastrophic impacts, especially since local San institutions are extremely fragile and weak. The wide distribution of San outside of South Africa and across very remote parts of southern Africa makes the situation particularly fraught. Ensuring the equitable distribution of funds to such communities is a very hard task indeed.
Further complicating matters is the fact that several groups hold traditional knowledge about the same plants to which San communities lay claim. Almost all of such groups have, to varying degrees, San as their progenitors. The most significant of these include Khoi communities, originally pastoralists but today often urbanized, “hybridized,” and, more and more, politicized. Although absent from hoodia negotiations, the National Khoi-San Council, established by former president Nelson Mandela in 1999 to accommodate San and Khoi historical leadership within South Africa’s constitutional framework, has increasingly become a partner in various benefit-sharing agreements, in collaboration with the South African San Council.
What this means in practice is ambiguous, and is often embroiled in the politics of identity and representation, a lack of clarity about who exactly “qualifies” for being San or Khoi, and a concern that benefits will flow to an elite leadership. A further complication is that many contemporary San and Khoi have been dislocated and resettled over millennia and are today seldom found in areas where the plants over which they claim traditional knowledge grow. In contrast, present-day communities who reside in such areas have customary rights and ownership over these plant resources but do not easily identify themselves as “indigenous.” Increasingly, this speaks to a disconnect between, on the one hand, the realism of contemporary biodiversity custodians and knowledge holders, and on the other, a worldview, supported to a large extent by international agreements and global movements, that essentializes indigenous peoples. As a result, emphasis is given to priority, or “who was first,” without acknowledging either the wide distribution of herbal knowledge and resources, or the long chain of rural communities, healers, researchers, and drug companies that contribute in different ways toward product development.
The Sceletium case, for example, lauded by some as a gold standard in benefit sharing, had less illustrious beginnings than is commonly believed. In the 1990s, research took place with traditional healers of the indigenous Nama, a group within the Khoi. Patents were filed in 2000 based on this knowledge but without securing prior informed consent or agreeing on benefit sharing. The 2010 agreement with HG&H Pharmaceuticals thus recognizes San peoples as “primary knowledge holders” but also recognizes the contribution of Nama peoples. This has resulted in the allocation of 50 percent of royalties to the villages of Nourivier and Paulshoek—where the research was initially conducted, in the Northern Cape province of South Africa.
Elsewhere in the region, identities are even more ambiguous. Mountain communities in the Western Cape, for example, which include some of the only areas where buchu and rooibos grow naturally and are wild-harvested, comprise largely so-called coloured residents. These groups are typically mixed-race descendants of settlers, former slaves, and Khoi people. Nonetheless, the harvesting and use of these plants have formed a central part of the livelihoods and cultures of such communities for decades. Paradoxically, while the benefit-sharing agreements described have to some degree safeguarded the rights of traditional knowledge holders associated with contemporary San and Khoi political structures, they have not adequately integrated other communities into the trade to allow for a share of commercial benefits. In fact, most of these harvesters and small-scale farmers—who are also often traditional-knowledge holders—remain completely unaware of the access and benefit-sharing regulations that protect their rights.
The natural-product companies that purchase material from these communities are also skeptical. Faced with an edict from the South African government to negotiate benefit-sharing agreements with San and Khoi communities, companies trading buchu have expressed concern about the fact that they already engage with harvester communities (who do not readily identify themselves as San or Khoi) and would prefer to develop benefit-sharing agreements with these communities, where they have established relationships. As one such trader remarked, “We are already making such small profits but we have to do this whole bioprospecting process and there is just so much red tape that gets involved . . . and we have people who have been here for one hundred years but we can’t make a contribution to them, we have to give our money to somebody [the San and Khoi councils] in Kimberley, far away.”
In the politically contested spaces of the rooibos tea industry, small-scale producers have voiced similar concerns. Despite twenty years of democracy in South Africa, the rooibos industry remains largely untransformed, continuing to enjoy the benefits of having been propped up by the apartheid system. In 1954, the government established the Rooibos Tea Control Board, a government-controlled monopoly rights system that served as the sole buyer from producers and the sole seller to approved exporters and tea processors. The board also had the authority to prohibit producers from selling rooibos to any party without its approval. As a result of the establishment of the control board, the rooibos industry could be assured of direct government protection and support, including subsidies for affiliated producers and research, and the provision of extension services. The rooibos industry expanded, entering a period of substantial growth and development. But, in apartheid South Africa, the board system excluded the mostly coloured farmers of mountain areas such as Wupperthal and the Suid Bokkeveld, who had traditionally gathered rooibos tea from the wild.
Together with apartheid, the Rooibos Tea Control Board was abolished in 1993, and over the past two decades the democratic government has provided increasing support to small-scale black and coloured rooibos farmers. Nonetheless, most of these farmers remain marginalized, and will continue to be so—physically, because of their remote location; environmentally, because of the harsh, drought-prone conditions under which they farm; and economically, in terms of their limited marketing capacity and continued struggles to gain access to extension services, markets, credit, and land. Whether access and benefit sharing can help with their plight is questionable, especially in the context of the wider development challenges that are faced. As one rooibos farmer from the Suid Bokkeveld remarked, in response to the information that San were claiming benefits from rooibos, “Our people are the ones who collect seed. Are we going back to the old South Africa where people are classed by race? I don’t know where I belong—black, white, coloured?”
Learning from these experiences is perhaps the biggest challenge of all, in the context of government systems and approaches that are typically highly managerial, siloed, and territorial in their individual mandates. Despite their good intentions, African regulations dealing with access and benefit sharing are characteristically marred by insufficient human capacity, limited experience with community dynamics, and poor knowledge of the rapidly changing scientific and technological environment in which bioprospecting is located. The ability to make good decisions is often compromised in such circumstances. A persistent backdrop is the politically charged nature of bioprospecting and the often-competing directives of neoliberal governments to commoditize biodiversity and traditional knowledge and to get a cut for the state of what are perceived to be profitable activities. The concern, as evidenced in the South African example, is that governments react to these complexities and to the imperative of the Nagoya Protocol by entangling themselves in unworkable laws and by adopting a somewhat mechanical “tick-box approach” that aims to ensure regulatory compliance rather than creating a climate that is conducive to ensuring social justice and stimulating economic development.
Experiences emerging from southern Africa provide rich fodder not only for the emerging regime of the Nagoya Protocol but also for wider initiatives focused on reducing the profound inequalities that exist in our society today. While building on the impetus and goodwill to address these injustices, we should not forget the priorities faced by indigenous peoples and local communities throughout the world. Establishing greater benefits for communities or traditional-knowledge holders is essential, but this goal won’t be achieved by benefit-sharing agreements alone. Equal attention should be given to building the long-term financial and technical capacity of communities to engage in commercialization; transferring technology to African countries and adding value to raw material; facilitating market access; and interrogating the unequal power relations of African natural-product value chains, which often continue to be monopolized by a handful of corporations. Realizing such changes will not be possible without securing rights to the resources, knowledge, and land that have been trampled upon over centuries and challenging the broader threats that are causing rampant biodiversity and cultural loss—such as logging, mining, and commercial agriculture. Greater integration of these issues is vital if the dual objectives of achieving both equity and biodiversity conservation are to be achieved.
Dutfield, G. “Traditional Knowledge, Intellectual Property and Pharmaceutical Innovation: What’s Left to Discuss?” In The SAGE Handbook of Intellectual Property, edited by M. David and D. Halbert, 649–65. London: SAGE Publications, 2015.
“Responsible, Inclusive Innovation—The Buchu Plant.” https://www.youtube.com/watch?v=Nk_Tl7dK5O0. (This video features interviews about the buchu plant and its wide range of possible uses to improve health and well-being. Its purpose is to show how traditional knowledge holders can collaborate with responsible entrepreneurs and scientists to drive inclusive innovation.)
Wynberg, R. 2016. Making Sense of Access and Benefit Sharing in the Rooibos Industry: Towards a Holistic, Just and Sustainable Framing. South African Journal of Botany. http://dx.doi.org/10.1016/j.sajb.2016.09.015
Wynberg, R., D. Schroeder, and R. Chennells, eds. Indigenous Peoples, Consent and Benefit-Sharing: Learning from the San-Hoodia Case. Berlin: Springer, 2009.
The following websites providing further information about access and benefit sharing:
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RACHEL WYNBERG is an academic, activist, and policy analyst with a special interest in biodiversity use and benefit sharing, community rights, social justice, and environmental governance. She holds a Research Chair on Social and Environmental Dimensions of the Bio-Economy at the University of Cape Town, where she is associate professor in the Department of Environmental and Geographical Science. With a background in the natural and social sciences, she has a strong interest in interdisciplinarity and policy engagement across the humanities, arts, and sciences. Bridging the gap between the theoretical dimensions of academia and the real world of environmental, social inequality, and poverty challenges is her central passion.