BRAZIL TO INTRODUCE NEW BIOPIRACY LEGISLATION

UNCLAS SECTION 01 OF 02 BRASILIA 000401 SIPDIS SIPDIS STATE FOR OES/PCI/LPOULTON, LSPERLING; OES/CDAWSON; WHA/BPOPP, ARADETSKY PLEASE PASS TO LHIRSCH AT SMITHSONIAN E.O. 12958: N/A TAGS: SENV TBIO KSCA BAIO BR SUBJECT: BRAZIL TO INTRODUCE NEW BIOPIRACY LEGISLATION REF: 06 BRASILIA 2686 ¶1. (U) Summary: The Government of Brazil (GOB) is preparing new legislation to address biopiracy in Brazil, which the GOB believes fuels a USD 100 million a year market for chemical, pharmaceutical and cosmetics industries worldwide. The new legislation will feature electronic registration for researchers seeking government authorization and may also require payment into a "conservation and development" fund, for use by the Ministry of the Environment. If passed, the new law would seek to help combat biopiracy while at the same time improve bureaucratic efficiency for scientific research requests and encourage foreign investment in biotechnology. End Summary. ¶2. (U) On September 28, 2007, SCI officer met with Eduardo Velez, Director of the Brazilian Ministry of Environment's Genetic Heritage Department (CGEN) to discuss biopiracy in Brazil. Velez said that for the GOB, biopiracy remains a constant threat to Brazil's natural resources and poses problems regarding access to and benefits from those resources for indigenous and local communities. Biopiracy in Brazil Defined -------------- ¶3. (U) Velez explained that the GOB sees biopiracy as the act of transferring genetic resources (animal or plant) and/or traditional knowledge associated with those genetic resources from Brazil without the prior authorization of the GOB. Such an act, Velez stated, violates not only local law, but the laws established by the Convention on Biological Diversity (CBD). Perhaps just as important to the GOB, according to Velez, biopiracy involves the unfair and unequal sharing (between the GOB, local communities and bio-prospectors) of the financial benefits that come from the commercial exploitation of these resources and traditional knowledge. ¶4. (U) At the moment, the Brazilian Ministry of Environment (MMA) is investigating approximately 1,200 patents and/or patent requests in the United States, European Union and Asia, involving substances related to 40 species of Brazilian plants and animals that are suspected of involving biopiracy. In Brazil, the most commonly discussed incidents of biopiracy involve food and medicinal products. For example, the brand curpulate (chocolate made with the seeds of the cupuacu fruit) was registered by Japanese company Asahi Foods in 2002. EMBRAPA (Brazilian Agricultural Research Authority) also claims that it holds the patent for this brand and has brought a case against Asahi before the WTO. In the medical field, Merck laboratory holds the patent for the isolation of an enzyme, the policarpina, from the jaborandi plant. Merck uses the enzyme to produce medicine for treatment and control of glaucoma. According to Velez, the plant has also been used for centuries by local Indians to make medicinal teas yet the Indians receive no benefits from the Merck patent. Legislation - Old and New -------------- ¶5. (U) The current Brazilian regulatory system for access to genetic resources and associated traditional knowledge requires bio-prospectors or scientific researchers to reach a contractual agreement with the land owner where the activities would take place. Both parties then go to the GOB for approval of the agreement and benefit sharing. The administrative requirement to approach the GOB second, and other flaws in the law such as lack of transparency, Velez explained, has led to an inefficient authorization process, a lack of monitoring and enforcement, and has also scared away bonafide foreign investment in the development of Brazil's biotechnology sector. ¶6. (U) The proposed new legislation, which is being drafted with input from local scientific, private sector and non government organization communities, will attempt to improve bureaucratic efficiency, Velez said. Velez added that with this new law, the GOB hopes that it can also reach the type of success in attracting foreign investing in biodiversity/biotechnology that, e.g., Costa Rica has been able to achieve, while at the same time, create more efficient channels for scientific research. ¶7. (U) The new law will institute, inter alia, an online registration for research and bio-prospecting authorization requests. Authorization requests would be directed to CGEN prior to reaching an agreement with the local land owner. The new law would also seek to better establish benefit sharing contracts, which will now have to be negotiated directly with the MMA and not with the owner of the land where the research or bio-prospecting takes place. Moreover, the new law may include a fund that researchers and BRASILIA 00000401 002 OF 002 bio-prospecting companies would be required to pay into that would be used to support sustainable development and conservation activities in Brazil. Velez said that the GOB had not yet determined how the conservation fund would be managed. While the current idea is that the funds would be under the control of the MMA for use in sustainable development and conservation activities, he could give no guarantees or plans for transparent use of the money. ¶8. (U) Comment: The GOB is keen to end biopiracy in Brazil as shown through its support of local and international efforts. For example, at the Common Agenda for the Environment meeting in Brazil in December 2006, Brazil reiterated its interest in including biopiracy in the scope of Coalition Against Wildlife Trafficking (CAWT),most likely due to its view that biopiracy includes plant and animal species. Moreover, at a recent meeting of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Council, Brazil reiterated its support of an amendment to the TRIPS Agreement that would entail incorporating a requirement to disclose the origin of genetic resources and associated traditional knowledge in patent applications along with evidence of prior informed consent and benefit sharing. Perhaps most importantly, however, the proposed new national legislation that would require a contractual agreement be negotiated directly with the GOB, may appear to mean that contrary its commitments under the CBD, the GOB may have interest in entering into bilateral agreements for conducting bio-prospecting in Brazil. End comment. Chicola