In Brazil, a Powerful Law Protects Biodiversity and Blocks Global Corporate Piracy

In Brazil, a Powerful Law Protects Biodiversity and Blocks Corporate Piracy

The country’s genetic heritage law aims to compensate Indigenous peoples for their knowledge of the plants and seeds that many US food and agribusiness companies use to develop profitable products.

An overhead shot of the Atlantic Forest in Brazil. (Photo credit: FG Trade, Getty Images)

An overhead shot of the Atlantic Forest in Brazil. (Photo credit: FG Trade, Getty Images)

This is the second of two articles about plant biodiversity and genetic resources. Read the first story here.

In the center of Rio de Janeiro sprawls a lush enclave of tropical flowers, vines, and palm trees, with howler monkeys screeching from the leafy canopies. Just blocks from the traffic-clogged bustle of Rio’s boulevards, the Jardim Botanico do Rio de Janeiro is a remaining 130-acre patch of the rainforest from which the city was carved three centuries ago. Locals and tourists alike go there to enjoy the bounty of Brazil’s legendary abundance of plant and animal life.

Part of the Jardim Botanico do Rio de Janeiro. (Photo credit: Jon Hicks, Getty Images)

Inside the Jardim Botanico do Rio de Janeiro. (Photo credit: Jon Hicks, Getty Images)

But if you are in Brazil representing a company in search of new food, drugs, or cosmetics, the Jardim’s research center is of far greater significance than the meandering garden paths. Here, inside a former colonial villa, the Jardim maintains what amounts to an inventory of the nation’s plant life, more than 65,000 samples.

Each one is a potential treasure trove for companies seeking new plant-based products. And each is now subject to a Brazilian law governing genetic resources, the Law on Access to Genetic Heritage and Associated Traditional Knowledge—known as the genetic heritage law—which is finally being implemented after almost a decade of political and logistical hurdles.

While data on the nation’s plant life is inventoried at the Jardim in Rio, the most powerful tool for implementing this ambitious new law resides in a locked chamber 600 miles away in the nation’s capital of Brasilia. There, in the basement of the Ministry of Environment and Climate Change, sits an extensive database for registering access to and paying benefits for the nation’s abundant quantities of genetic resources.

Each plant sample is a potential treasure trove for companies seeking new plant-based products. And each is now subject to a Brazilian law governing genetic resources.

It’s called SisGen, shorthand for the National System for Genetic Resource Management and Associated Traditional Knowledge. Commercial enterprises must register with SisGen when they leave a region with a sample and when a “finished product,” in the words of the law, “is developed as a result of the access.” Scientists must also register their access and sampling of a plant if they intend to use it for research. In other words, all possible uses of the plant, including efforts to obtain patent protection for any product developed from it, must be registered.

Furthermore, the Brazilians add a requirement to block any return to the days of biopiracy: All those accessing the resources must have a Brazilian partner (many U.S. companies have Brazilian subsidiaries). For the Indigenous people who provided the know-how necessary to turn plants into commercial products, SisGen is a potentially key pathway to ensuring compensation.

Numerous U.S. companies, universities, and research centers are already making regular use of such ingredients. Among the companies that have recently registered the export of plant or seed samples are agrichemical giants like Bayer Crop Science (which bought Monsanto in 2018); the biotech firm Novozyme; smaller firms like ProFarm, a company that sells biologically based fungicides, insecticides, and seed treatments; and the U.S. subsidiaries of European companies like Givaudan, which develops plant-based snacks and meat alternatives.

Centers of Food Origin: Genetic Treasure Troves

Leaf by leaf, flower by flower, Brazil is a genetic powerhouse. The relative stability of the nation’s climate—for thousands of years it rarely veered more than 10 degrees in either direction—has made it ideal for the rapid evolution and adaptation of species. It is one of a handful of countries located along the equator that are home to as much as 90 percent of the planets’ biodiversity.

It’s fair to say that most of the foods we eat in North America began their journey to our tables in one of these centers of origin. Corn originated in Mexico; potatoes in the Peruvian Andes; chiles in the mountains of Jamaica; apples in the rugged valleys of Kyrgyzstan’s Tian Shan Mountains; wheat in Syria and Lebanon; coffee in Yemen; peanuts, cashews, and pineapple in Brazil.

So, when new diseases strike, new pests emerge, and climate stresses increase on North American farms, scientists tend to look to places that are far from American farmland to find genetic resources in centers of origin that were never domesticated. There, plants haven’t had their survival characteristics bred out of them in favor of qualities like super-charged yields and other features of industrial agriculture.

For many years, Europeans and Americans took whatever they found in these and other biodiverse places without asking, or paying, anyone. For instance, when Dr. Moises Santiago Bertoni, an Italian-Swiss botanist, learned in the late 19th century about the stevia plant with the help of the Guaraní people in Brazil and Paraguay, he never had to acknowledge where or how he found the samples he took with him back to Switzerland.

Nor, a century later, did Cargill, PepsiCo, Coca-Cola or any other company have to provide payments or other benefits to the Guaraní community when they released stevia-enhanced products now worth more than $700 million in annual sales.

Bottles of Coca-Cola Life, a drink sweetened with cane sugar and stevia. (Photo CC-licensed by Mike Mozart)

Coca-Cola Life, a drink sweetened with cane sugar and stevia. (Photo CC-licensed by Mike Mozart)

Who, finally, gets the credit and gets paid for any products that may result from the use of these traditional plants? That is a raging question in Brazil and other biodiverse countries where people are tired of paying for imported foods or drugs that originated from plants in their own home territories.

A UN Law for Protecting Biodiversity

Brazil is now at the forefront of a group of nations who have demanded an end to this free-for-all. Beginning in 2018, the country joined forces with Indigenous groups around the world as well as Indonesia and the Democratic Republic of Congo, other mega-biodiverse countries, to demand that the U.N. recognize the sources of these genetic resources and find a way to provide benefits to the people whose traditional knowledge contributes to their use.

In December 2022, in Montreal, at the U.N. Convention on Biological Diversity, their efforts bore fruit. The Kunming-Montreal Global Biodiversity Framework, which emerged from that meeting, was seen as a major step toward reckoning with how we value the Earth’s resources and the people most responsible for conserving them.

Americans have largely sidestepped these debates over genetic resources, because the U.S. is the only country, along with the Vatican, that has not ratified the Convention on Biological Diversity. But the agreement will certainly impact the U.S., because it will play a role in shaping many of the foods, agricultural products, and drugs of the future, and many of the companies that develop and sell those products are global and have extensive markets in the United States.

The Montreal deal called for a global system to ensure that benefits are paid in return for providing access to living genetic resources and to the gene sequences within them that are increasingly providing the basis for new tastes, foods, and drugs. This is called, in U.N. shorthand, access and benefit sharing (ABS). Here, access means obtaining consent to access a nation or tribe’s genetic resources, and benefits means an equitable distribution of profits made from those resources. A U.N. working group of public officials and academics has been charged with devising the details for the system in time for the next Convention on Biological Diversity, to be held in Cali, Colombia, in October 2024.

After centuries of rampant biopiracy, Indigenous communities and their advocates hope that a sea change is at hand. And Brazil, with the most sophisticated system yet for ascertaining the value of genetic resources, is widely seen as a model for the world.

Political Drama and the Birth of Brazil’s Genetic Heritage Law

Brazil’s Law 13,123, the Law on Access to Genetic Heritage and Associated Traditional Knowledge, was born in May 2016, at a moment of great political drama. A new genetic heritage decree, formulated the previous May, was in its final negotiations. At the same time, left-leaning President Dilma Rousseff was being impeached after a group of conservative lawmakers accused her of corruption in an effort to oust her from office.

“Dilma was watching her impeachment on TV at the same time we were negotiating,” recalled Henry Novion, the former head of Brazil’s Department of Genetic Heritage, who co-authored the law. Later that day, he, two other government officials, and Rousseff’s legal adviser rushed to her office in the presidential palace to get her signature on the decree, which was the final step necessary to implement the nation’s new law governing its genetic heritage.

That eleventh-hour act, one of her final as president, would set into motion the unprecedented system that Brazil devised to track where its genetic resources are located and who was accessing them. It was also the first step toward the allocation of benefits for the insights that Indigenous and local people have long provided to outsiders about the characteristics of plants in their territories, what’s known as “traditional knowledge.”

The law calls for compensation if such knowledge, according to Novion, “adds significant value to the products’ functional characteristics . . . or its market appeal.” The new law replaced an earlier genetic resources law, passed in 2001, that put most of the responsibility for compliance on companies, had little enforcement muscle, and was widely seen, by Indigenous communities as well as the business community, as unwieldy and ineffective. Law 13,123, Novion said, was intended to correct those errors and give the regulations over genetic resources some teeth.

When Jair Bolsonaro was elected as president two years later, progress on implementing the new law—and many other environmental laws—was frozen. Novion stayed on at the department until 2020. He then spent two years working as an independent consultant for foreign governments—including Japan, Angola, and Mozambique—on their own rules governing genetic resources. Then, in February 2023, Novion got his old job back after Luiz Inacio “Lula” da Silva, who had served as president before Rousseff, returned to the presidency.

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Also in 2023, Lula reappointed Marina Silva, the one-time Green Party presidential candidate and environmental leader, as his Minister of Environment and Climate Change. The new team set out to slowly but steadily shift Brazil away from its heavy reliance on selling commodities—many of them grown in deforested areas—to what Lula has called a “bio-economy,” which creates value out of Brazil’s bounty of genetic resources. At last, the 2016 law began to be implemented across the country.

The document itself is an extremely complicated 22-page piece of legislation. It requires that any company or research institution accessing the country’s resources must engage with a Brazilian partner, and must register their accessions with SisGen. More than 16,000 plant accessions have been registered so far this year, says Novion. When a commercial product is developed from those resources, 1 percent of the annual retail sales must be either provided to the local community or deposited into the National Benefit Sharing Fund. (In some instances, companies may opt to provide services that amount to less than that figure).

The funds are to be dispersed to support local and Indigenous communities’ biodiversity conservation efforts. Thus far in 2024, 9 million reales—roughly $1.6 million U.S.—have been collected for the fund, according to Maira Smith, a biologist with the Ministry of Environment and Climate Change team, which is implementing the new law.

The program offers recognition and monetary compensation for conservation to three distinct Brazilian populations: Indigenous people living on the land long before the arrival of the Portuguese and other colonial powers; traditional small and subsistence-scale farmers who have lived off the land for long enough to develop their own knowledge of local genetic resources; and the Quilombolas, the Afro-Brazilian communities descendant from enslaved people who have been living in the tropical forests for generations.

The SisGen database represents the most substantive effort yet to identify the provenance of the country’s genetic resources, a key first step toward recognizing their ties to traditional knowledge. The global nature of farming and the mobility of seeds—which easily traverse national frontiers by means of wind, water, trucks or shipping containers transporting crops—means that the provenance trail is not always clear, however.

According to Novion, many crops grown in Brazil, like corn, soybeans, coffee, and sugarcane, did not originate there, and thus would not be subject to the genetic heritage law. But the many other plants that are clearly endemic to Brazil—açai, stevia, guarana are among the better-known examples—do qualify, and so companies that utilize them for any new products are subject to the registration requirements.

Many global food and agribusiness companies with large Brazilian subsidiaries are subject to these rules, including Corteva, Bayer, Pepsi, Coca-Cola, Nestlé, and Cargill.

And it gets even more complicated, explained Novion: “If a plant emanating from an exotic, non-Brazilian source finds its way to Brazil and develops independent of human intervention into another related variety, then it, too, is a Brazilian genetic resource.”

Smith explained that the law includes some sharp enforcement tools that will be used with any foreign company or institution. “If there is an American company that does not comply with our legislation,” she said from her office in Brasilia, “we can reach them through their subsidiary industry in Brazil.”

Many global food and agribusiness companies with large Brazilian subsidiaries are subject to these rules, including Corteva, an agrichemical and seed conglomerate which until recently was a subsidiary of DowDuPont; Monsanto and its corporate owner, Bayer; and the food processing and commodity companies Pepsi, Coca-Cola, Nestlé, and Cargill.

With potentially tens of millions of dollars’ worth of new plant-based products at stake, however, a number of major food and agribusiness companies launched a sustained campaign to weaken the measure as it made its way through the Brazilian Congress. Among the major lobbying forces were the Agricultural Parliamentary Front and the Pensar Agro Institute, which receive support from major international companies like Bayer, Syngenta, Cargill, and Nestlé, according to the Brazilian NGO De Olho Nos Ruralistas.

They succeeded in writing loopholes into the law big enough to steer an atmospheric river through.

Agribusiness Loopholes in the Genetic Heritage Law

Two major concessions to the agribusiness coalition exempted them from key provisions of the new law, according to Gustavo Soldati, a botany professor at the Federal University of Juiz de Fora, who has followed the law closely and worked with Indigenous communities to strengthen its enforcement.

Those making foods based on Brazilian plants must register with SisGen, but are exempted from seeking consent from communities or paying benefits. For example, if you’re looking to make a new facial lotion containing açai, you have to get consent from the local population and pay benefits; but if you’re making a new snack food with açai, no consent or compensation is required.

“We call this a juridical fiction,” says Naiara Bittenfeld, a lawyer for Terra de Cereitos, an organization that advocates for the land rights of Indigenous and local farm communities. As she sees it, the loophole lets many companies off the hook. “Traditional communities can always identify the [people] that produce knowledge. All knowledge has an origin.” She cites stevia as an example. “If Coca-Cola uses stevia in [products], then Coca-Cola needs to pay something. And they don’t need to ask the Guaraní for their consent to use it, though we know the knowledge about stevia comes from the Guaraní.”

Additionally, those seeking access to Brazil’s unique bounty of native seeds—defined in the legislation as “reproductive organisms”—have to pay into the benefits fund, but are exempt from having to obtain consent from local communities. The law states that, for seeds, there are “no recognizable sources” of traditional knowledge.

“Traditional communities can always identify the [people] that produce knowledge. All knowledge has an origin.”

Soldati asserts that such provisions “violate one of the most important rights of Indigenous people, the right to be consulted about every subject that involves their lives.”

Maira Smith explains the government’s view: Because many forest communities have practiced agroforestry for centuries, traditional knowledge is shared by many people; knowledge and seed have essentially evolved together. “The traditional knowledge is contained inside the seed,” she says. That makes it difficult to identify any one community as the primary source of traditional knowledge. In such instances, payments are made into the National Benefits Fund, which makes grants to communities that protect their genetic resources.

For the past year, Soldati, supported by the U.N.’s Green Environment Fund, has been traveling to many of the biodiversity-rich communities that are far from the corridors of power in Brasilia to explain their potential rights under the law, and lobby for an expansion of protections. “We want to plant the roots of knowledge deep inside the soil,” he said.

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In January 2024, Soldati and a coalition representing hundreds of Indigenous communities met with Minister Silva to discuss their concerns. Among their top demands, according to Soldati: Stronger enforcement of “prior informed consent” rules, and greater transparency to ensure benefits are paid. The current system requires navigating the complex SisGen database, and some of the information—like how much each company pays—is confidential.

The coalition also demanded government guarantees of access to their traditional tribal territories (many communities have been ousted from traditional lands by mining, ranching, and agribusiness interests), and government support for an Indigenous-run pharmacopeia of native plants that explains their history and uses. Those last two things are connected: Compiling such a guide would require revitalizing an effort, begun during Lula’s previous presidency, to clearly demarcate tribal lands.

Natural Resources as Property versus Relationships

Like the Brazilian initiative, the U.N.-led effort underway to create a global access and benefit-sharing system ahead of the October 2024 Convention on Biological Diversity requires navigating between two very different views of “genetic resources.” It can be murky territory, according to Preston Hardison, a longtime adviser to the Tulalip tribe in Washington state and a negotiator at the 2022 CBD in Montreal. The dominant view of such resources is steeped in U.S. and European principles of intellectual property, which considers them as singular organisms whose origins can be clearly delineated according to Western concepts of land and ownership.

By contrast, an Indigenous view, says Hardison, sees such “resources as part of their relationships with kin, with knowledge of their ancestors, and relationships with other animal beings.”

A stevia plant. (Photo credit: Leila Melhado, Getty Images)

A stevia plant. (Photo credit: Leila Melhado, Getty Images)

Daniele Manzella, a policy officer for the U.N. Food and Agriculture Organization (FAO), says the current ABS negotiations involve synthesizing multiple perspectives: impulses to conservation, open scientific exchanges, Western science, traditional knowledge, and the rapidly expanding technologies for reproducing characteristics obtained from plant DNA. “It’s different souls,” he said, “competing with each other.”

The SisGen computer, containing all that information about Brazilian plants and their possibilities, is whirring away in the middle of these contradictions, translating the evolutionary relationship between humans and plants into Western concepts of intellectual property and mechanisms of financial recognition. “We are working with different knowledge systems,” says Smith, at the Ministry of Environment and Climate Change. “We’re trying to encourage the flow of knowledge between the two systems.”

The Genetic Sequencing Twist

As the next U.N. Convention on Biological Diversity, to be held in Colombia, draws near, Colombian President Gustavo Petro says signing an ABS deal is one of his top three priorities for the conference. “Access and benefit sharing lies at the core of the Biodiversity Plan. This is a crucial issue in the negotiations,” reads a press release on the conference website. The Brazilians, who were key to passing the agreement in Montreal, are actively engaged in the negotiations, passing along their experiences with their country’s genetic heritage law.

At the heart of these negotiations is an attempt to also address the new frontier for genetic resources: the digital information contained within each plant. Now that the genomes of hundreds of thousands of plants have been mapped, and the data entered into global gene banks, food and pharma scientists are able to identify gene sequences that contain desired characteristics—the “sweet” sequence in a stevia leaf, for example, or the sequence in a seed that may convey resistance to drought. In other words, they may no longer need the physical specimen to get what they’re looking for. Once identified, that sequence delivering a specific characteristic can be synthesized with a technology known as Digital Sequence Information, or DSI.

At the heart of these negotiations is an attempt to also address the new frontier for genetic resources: the digital information contained within each plant.

The practice, now pursued by many food and seed companies, poses a profound challenge. DSI offers the real possibility of disconnecting an organism from its origins. Manzella says that the quandary inherent in the U.N.’s asset and benefit-sharing work lies in trying to place the high-speed, highly technical science of genetic sequencing alongside traditional knowledge based on millennia of experience and life on, and from, the land. Never before have negotiators tried to find a common ground between the two.

At a meeting of the U.N. working group assigned to hammer out a benefit-sharing plan in advance of the November meeting, the challenges presented by DSI were central to the conversation. Such questions included whether such a system should indeed be global, or give individual countries leeway to devise their own ABS systems, such as the one that now exists in Brazil. Other contentious issues on the table: How do you identify the source pool of a set of chromosomes, and who do you pay? What to do if no specific community source for the material—either physical or chromosomal—can be identified, or the trail leads to multiple locations?

Proposals being considered include a subscription service to seed banks or gene banks, with the subscription fees going toward indigenous-led conservation of threatened genetic resources. Then the question: Who pays? What restrictions are placed on taking such resources and placing them behind an intellectual property paywall? How negotiators deal with such questions on a global scale will determine the shape of genetic resource use for decades to come.

A global agreement has the potential to begin reversing centuries of unhindered extraction by funneling millions of dollars toward long-ignored communities. It could also flounder under the pressures of companies, scientists, and nations that perceive the recognition of traditional knowledge, and even minimal profit sharing, as a threat.

Meanwhile, in the realm of actual plants, almost a decade after Brazil passed its groundbreaking genetic heritage law, the country is preparing to unlock the first round of grants from the National Access and Benefit Sharing Fund. The fund will be offering an initial amount of 1,250,000 reales, roughly U.S. $235,000, for which any of the more than 300 officially identified Indigenous and local communities may apply.

The first round of awards will be in November, according to Smith. Twenty-four communities determined to be “guardians of biodiversity” will each be awarded grants of 50,000 reales (U.S. $8,940) based on their work preserving their genetic resources. It will mark one of the first times that funds generated through the sharing of traditional knowledge will be sent back, by the government, to those who shared it.

An earlier edition of this article misstated the 2024 amount gathered for Brazil’s local and Indigenous biodiversity conservation efforts. That figure has been updated.

Mark Schapiro is an award-winning investigative journalist specializing in the environment. His most recent book, SEEDS OF RESISTANCE: The Fight for Food Diversity on our Climate-Ravaged Planet, a journey in search of the seeds capable of resilience to climate change and the struggle with agri-chemical companies to control them, has recently been updated and published in paperback. He is a Lecturer at the UC Berkeley Graduate School of Journalism, teaching climate and environmental journalism. Read more >

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