The example of Sacha Inchi
In October 2009, the Greentech company specialized in green active ingredients, abandons the patent it had filed in 2006 [1] for the use of Sacha Inchi (Plukenetia Volubilis), a plant of the Andean foothills of Amazonia which grows between 100 and 1000 meters of altitude. Already, Cognis France had given up (early 2009) a patent application concerning the cosmetic and dermatological use of the oil and proteins extracted from the nut of the plant. In both cases the same reason, the accusation of biopiracy made against these companies by NGOs but also by the very official National Peruvian Anti-Biopiracy Commission (Comisión Nacional para la lucha contra la biopiratería).
"Sacha Inchi was probably already cultivated by pre-Inca civilizations, 3000 or perhaps 5000 years ago, specimens of the plant were actually discovered in tombs. But the farming of the plant was nearing extinction in the 1980s", explains Daniel Joutard, creator of the brand Aïny, which built its reputation on the utilization of plants and knowledge of indigenous-people. "The seed of Sacha Inchi which has the shape of a star contains almonds rich in omega 3".
The vast majority of cases handled by the National Peruvian Anti-Biopiracy Commission concern pharmaceutical uses of plant extracts. But the Sacha Inchi case, one of the recent cases having received strong media coverage, shows that the cosmetic industry is not spared from such problems.
Especially as the concept of biopiracy doesn’t limit itself to cases of patent registration on traditional knowledge. According to Daniel Joutard it must be understood in its broadest sense as "an access to resources and collective knowledge, with no prior information on intentions and researches, with no explicit approval of local communities and states concerned, with no compensation mechanism, and possibly, by filing a patent of limited innovative significance".
Legal and media risks
For companies, danger comes first from the media. Because being accused of robbing indigenous peoples of their ancestral know-how is unlikely to benefit to their brand image. The chances are even higher because the attitude of the biopirate is then perceived as being at odds with the ethical, responsible and sustainable attitude often thought to be at the origin of the research and of the use of herbal ingredients.
"Biopiracy not only affects the interests of states and indigenous people, keepers of genetic resources and traditional knowledge, but also those of consumers of ’natural’ products, who surely care about the fact that these products respect the anteriority of customs and knowledge coming from indigenous people" argue the members of the Collectif Biopiraterie. [2]
But the risks is also legal. It occurs mainly with the risk of forfeiture of intellectual property rights sometimes hard-won. Indigenous peoples often lack the legal resources and financial means, which need to be mobilized in order to hope gaining an intellectual property right internationally acknowledged. Their traditional know-how benefits however, from the partial protection of the United Nations Convention on Biological Diversity, adopted at the Earth Summit in Rio de Janeiro in 1992, which attempts to regulate access to living resources, and entered in international law the recognition of traditional knowledge.
The Convention establishes the principle of prior consent of affected populations and that of the sharing of biodiversity benefits. But again, procedures are cumbersome and often costly. The people alone don’t have the means to defend themselves. Especially since it is not always easy to demonstrate the anteriority of traditional use. "The power struggle may seem disproportionate, but the benefit of obtaining a patent becomes increasingly limited compared with the chances of ill-publicity the company has a chance to face with a problem of this type," notes Daniel Joutard.
As for cosmetic brands, general awareness seems to be very slow to emerge. This issue is far from their everyday concerns. As far as sustainable development is concerned, there are often many more priorities to be solved before this one really emerges. Yet, brands are far more vulnerable than ingredient suppliers whose names are rarely known to the general public. If a major media campaign is triggered by NGOs, it will necessarily be the brand’s products using the incriminated ingredients that will be put forward.
Hence the importance there is to question oneself about the precautions to take before using a novel plant ingredient, and the contents of specifications to be provided to suppliers.
