Brazil has moved to relax a draconian 15-year old law against “biopiracy” that had the unintended consequence of halting much international research into the plant-based biodiversity of Latin America’s largest nation.
Nationalist sensitivity and excessive bureaucracy have been slowing down Brazil’s ability to harness its own rich biodiversity, while indigenous communities – supposed to benefit from the riches of the global cosmetic industry – had seen little benefit.
Dating from 2001, a law known as MP 2186 was designed to ensure Brazil’s ethnic communities received adequate recognition and compensation for information handed to ethno-botanists and field researchers working for international drug companies seeking to identify medicinal plants from which they synthesize active compounds.
The law was triggered by popular criticism of a pact (subsequently annulled) between pharma giant Novartis and a local non-profit, that handed the Swiss company exclusive rights to microbes collected in the Brazilian Amazon.
But over time its loosely-drafted provisions were used to ban the export of plant and animal samples for pure research, landing bona fide local and foreign scientists in serious legal trouble, because the assumption was that any kind of research was precursor to commercial exploitation.
Scientists would get into trouble if, prior to starting research, they had not negotiated commercial benefit-sharing clauses with indigenous or traditional communities – regardless of their practical intentions. Biodiversity came to be perceived as such a prized strategic asset that researching it had become a sensitive issue – even for Brazilian institutes.
The MP 2186 even created its own “biodiversity police force” in the shape of a regulatory agency named the Genetic Heritage Management Council (CGEN). Those working in the plant-based cosmetics and natural extracts industry found CGEN’s regulatory oversight as onerous as that of ANVISA, the federal medicines regulator.
On May 20th Brazilian president Dilma Rousseff signed new biodiversity legislation that will continue to provide recognition of the intellectual property surrounding plant-based medicine built up by indigenous communities through traditional practices.
The main change is that while MP 2186 obliged scientists to negotiate a share of any eventual benefits from their work before they even began studying, the new law (called 13.120/2015) allows them to simply register an interest so that royalties can be worked out later on – if substances have commercial potential.
While the new law proposed by Science Minister Aldo Rebelo, still prohibits foreign scientists from prospecting for genetic resources in Brazil with a view to commercial benefit, Brazilian scientists are no longer required to have their activities licenced by CGEN and the process of filing an interest has been made much less bureaucratic.
Although the new legal framework is still couched in terms of protecting Brazil’s “genetic patrimony,” President Dilma made clear in a speech that Brazil’s commercial interests were being hobbled by the old law. She said “they tell me we are still playing catch-up in the pharmaceutical industry but in biotechnology we need to be out in front.”
Portuguese readers can study an account of the new legislation on the Brazilian Ministry of Science, Technology and Innovation (MCTI) website.
According to MCTI news reports Rebelo said: “we had a protectionist legislation which was actually criminalizing some research. This was holding back scientific research and development as well as biodiversity investment – both public and private.” He added: “the new legislation will protect the environment, research, the knowledge base of traditional communities, and benefit industry, leading to the creation of new jobs, income and tax revenues.”
The new law provides for the creation of a national benefit sharing fund (FNRB) designed to capture a share of proven commercial benefit from any traditional plant-based knowledge transferred by any indian or traditional communities.
Any company manufacturing products based on these remedies will transfer 0.1%- 1% of revenues to the fund, which in turn will distribute benefits to traditional communities.
The new law also acts to curb the power of federal bureaucrats controlling CGEN by forcing them to share management with nominated figures from civil society, including representatives of indigenous communities, farming communities, academic and business interests.
In a news report published by Science magazine, senior scientists are quoted as welcoming the changes. One expert quoted by the U.S. publication is Prof. Carlos Joly of Campinas University. Prof Joly is also the coordinator of the Biota programme maneged and financed by the São Paulo Research Foundation. Biota has been running for over a decade and has involved hundreds of foreign scientists.
The changes have won approval from the international cosmetics industry which has been investing in Amazon-sourced natural products and the means to industrialize supply chains. You can read an article about this by clicking here.
The changes to the biodiversity law were proposed by by science Minister Aldo Rebelo, appointed in January.
The changes to MP 2186 come as a further indication that Rebelo – a veteran socialist/communist politician who has long been pilloried as a nationalist warhorse by urban intellectuals – is in fact a savvy operator who in recent months has made a string of far-sighted decisions designed to assist Brazil’s progress toward knowledge society status.
The exploitation of the Amazon by rival colonial powers and pillaging of Brazil’s valuable biological resources has been a subject of national hysteria since even before the nation existed. Foreign naturalists were banned from travelling in Brazil until Spix and von Martius, a German duo of botanist and explorer, travelled into the interior in 1817.
On occasions Brazil’s suspicions have certainly been justified: British adventurer Henry Wickham in 1876 smuggled 70,000 seeds of Hevea brasiliensis out of the Amazon to eventually establish Malaysia’s rubber industry, thereby eclipsing Brazil’s own rubber boom. Likewise the anti-malarial cinchona containing quinine or “Jesuit Bark” was taken from Peru’s indigenous Andean community without any compensation after 1650.