Steeped in Controversy: Why The Market for Clear Skin Has Been Blemished by Biopiracy & Inequi(tea)
Updated: Oct 3, 2020
By: Nabihah Khan
(Photo Credits: Oxpeckers.org and Cedar Vista Farming)
Under azure skies, neat rows of viridian shrubs line the landscape, with the rich botanical fragrance of Aspalathus linearis awakening the serene atmosphere. Better known as rooibos, this plant has been the lifeblood of the Bantu, San, and Khoi people of South Africa, with its coveted medicinal properties driving a $17 million industry (R300 million). However, this seemingly innocuous verdure’s history has been one fraught by turbulence and inequities, with global companies attempting to co-opt its anti-inflammatory properties to drive cash flow, seemingly at the expense of the indigenous peoples and slave descendants who have farmed rooibos for centuries.
Rooibos Rooted in Controversy:
Rooibos, meaning ‘red bush’ in Afrikaans, is a plant endemic to South Africa. It is known to require sandy terrain for proper harvesting and also necessitates a symbiotic relationship with certain soil microorganisms to sustain its growth. Moreover, the plant has been found to grow abundantly only in certain parts of the Cederberg Mountains, with farmers in China, Australia, and the United States failing in their attempts to grow rooibos in the wild.
The indigenous San and Khoi people have long lived in the rooibos-dominant region of the Western Cape province, and are believed to have been the first to brew the plant into a delicious and healing tea. Its popularity as a refreshing beverage has been long-enduring and rooibos tea is a staple of South African households even today. Thus, it is no surprise that rooibos has catalyzed a lucrative industry both in the South African marketplace and international economy.
(Photo Credits: MedicalNewsToday.com and Amazon.com)
To better contextualize the contemporary contention surrounding the rooibos industry, one must first understand the Nagoya Protocol, a supplementary component of the United Nation’s Convention on Biological Diversity, which provides an international framework that enables the equitable sharing of benefits that may arise from genetic resources (e.g. medicinal plants). South Africa also has its own codes to prevent biopiracy, such as its 2008 Bioprospecting, Access, and Benefit Sharing Regulations, in which bioprospecting is understood as the exploration of natural resources for biologically active compounds to develop commercially relevant products for various fields, such as medicine and nanotechnology. This is in sharp contrast to biopiracy, in which natural resources are exploited and their use by the general population (and the original product pioneers) is restricted through the use of patents claimed by other entities (e.g. global corporations, research facilities, etc.). Thus, the Nagoya Protocol and other legal frameworks play an important role in ensuring that traditional knowledge is duly protected and that these often-marginalized populations are fairly compensated if they choose to share their insight with bioprospecting researchers.
However, many believe that this traditional knowledge of rooibos has been exploited, with little benefits, monetary or otherwise, being transferred to the Khoi and San populations. Moreover, government-commissioned researchers found significant evidence highlighting the vitality of San and Khoi knowledge in crafting our contemporary application of rooibos as both a remedial and refreshing resource. Following this study, South African researchers urged companies domineering the rooibos industry to explore benefit-sharing options, but this was met with an icy reception, as many in the field dismissed the historical evidence as baseless.
Matters were further complicated by other parties who believed they were entitled to compensation for their rooibos innovations. Many activists admit feeling caught between a precarious chasm, in which they hope to advocate for the Khoi and San people to be fairly compensated for sharing their traditional knowledge, but also recognize the role of other stakeholders who contributed their efforts into making the rooibos name so well-known. For example, in the 1920s, Tryntjie Swarts was instrumental in locating hard-to-find rooibos seeds in ant hills, and thus helped catalyze the rooibos industry as we know it today. Annekie Theron was a South African woman who noted that the tea helped mitigate her child’s allergic reactions, and this helped drive its popularity in Pretoria and elsewhere. Moreover, Barend Ginsberg had an ambitious goal of making rooibos the “Ceylon of the Cape” and helped popularize the tea in the international markets at the onset of the twentieth century.
Thus, there are many stakeholders hoping to receive the economic stimulus associated with benefit-sharing frameworks, as the fiscal roots of this botanical industry run deep in South African history and traverse a diverse array of populations. The fear experienced by rooibos farmers with San, Khoi, or slave descendant backgrounds is understandable, as they believe that their grip on this industry is currently tenuous, at best. Their access to the rooibos lands was once revoked during apartheid, in which the government unfairly claimed a 40-year monopoly on rooibos, preventing indigenous populations from enjoying the fruits of their labor while also further stemming their social mobility.
But what exactly is in this plant that makes it such an attractive botanical for large corporations to pursue?
What's (in) the Tea?
For South Africans, rooibos has long served as a natural remedy for inflammation, skin disorders, asthma, gastrointestinal distress, cardiovascular ailments, and immune system complications. The plant contains many biologically active compounds that are of particular interest to researchers worldwide.
Many noteworthy compounds have been isolated from the rooibos plant, including the following:
Luteolin: a compound which has been found to reduce cardiovascular disease burden and symptoms
Quercetin: another compound used to prevent cardiovascular disease and also help with stroke and cancer recovery
Rutin: a compound that helps maintain the integrity of vascular vessel walls
Aspalathin: rooibos is the only plant from which aspalathin, an antioxidant, can be naturally isolated and it serves as a promising compound for the treatment of diabetes
Thus, it is unsurprising that many global firms are interested in harnessing the medicinal properties of rooibos to curate new products for global audiences. Currently, there are over
100 patents filed for rooibos, ranging from cappuccinos to lipstick to skincare, and these claims have been mostly facilitated by foreign firms outside of South Africa.
A Global Plea of Equitea from a Corporation Nestled in Secrecy:
In 2010, the international watchdog organizations, Berne Declaration of Switzerland and Natural Justice of South Africa, sounded an alarm to the international community when they came across concerning patents filed on behalf of Nestlé, a major economic powerhouse that held a 30% stake in L’Oréal, the world’s premier cosmetic company, and a 50% stake in Innéov, a beauty and wellness supplement company. Nestlé had filed four out of five patents detailing the use of rooibos and honeybush, another endemic South African medicinal plant, to treat hair and skin ailments. The fifth patent entailed developing a therapeutic supplement for inflammatory conditions using rooibos.
(Photo Credits: NaturalJustice.org and CGTN.com)
Nestlé’s interest in rooibos and honeybush clearly fell in the realm of bioprospecting, as they hoped to study biomolecules isolated from genetic resources to develop commercially relevant products for their respective business endeavors. Thus, in accordance with both South African law and the Nagoya Protocol, Nestlé would have had to receive consent and have had their bioprospecting permits approved before they could even begin their proposed projects. However, the Department of Environmental Affairs of the South African Government confirmed they had never received such permit applications, putting Nestlé in direct conflict with both the United Nations’ Convention on Biological Diversity and the Nagoya Protocol.
The Berne Declaration and Natural Justice organizations published a report providing evidence of Nestlé’s apparent wrongdoing. Following its wide circulation, Nestlé quickly shifted the onus onto South African exporters, claiming their suppliers had provided them the rooibos and honeybush extract, and so these South African intermediaries were actually the ones at fault as Nestlé did not realize such an endeavor could be seen as a violation of the Nagoya Protocol. However, many have pointed to the multinational corporation’s significant economic prowess and in-house legal team, stating that this apparent feigning of ignorance should not excuse them for their grievous misstep, especially given the ample financial and counseling resources at their disposal.
Furthermore, upon review of Nestlé’s patents, the World Intellectual Property Organization (WIPO) found that the submitted proposals failed to meet the criteria needed to be granted a patent (e.g. novelty and industrial applicability). In particular, the use of rooibos as an anti-inflammatory agent or skin therapeutic could not be considered new or groundbreaking as such application for rooibos had already existed within the San and Khoi communities for many years.
Such a rooibos patent, if granted to Nestlé, could have limited the mobility of indigenous populations, as it would have severely restricted their access to a significant source of their income, thus catalyzing years of stress and financial uncertainty. However, since the initial controversy in 2010, Nestlé has cooperated with the Nagoya Protocol guidelines and has initiated a framework for benefit-sharing with the South African government as they continue to pursue their commercial rooibos and honeybush initiatives.
Why Is This Important?
Much of contemporary medicine has been rooted in the innovations uncovered by traditional knowledge. However, the implicit power differential that exists between bioprospecting entities and native communities can often be quite significant, and thus, guidelines like the Nagoya Protocol are critical for ensuring that the use of traditional knowledge is fairly compensated. Fortunately, steps have been made to ensure rooibos profits are returned to the South African government and its people, such as when rooibos tea gained certain protections under the European Union through geographic indicator status, which concretized the tea’s origins as South African. However, much work still remains to be done both in South Africa and abroad to ensure that the benefits of knowledge are fairly shared, and not unfairly sequestered and secluded.
Please consider watching the mini-documentary included below as it discusses more about the Nestlé and rooibos controversy, as well as the work done by the Berne Declaration and Natural Justice organizations to combat these research and economic inequities.
Furthermore, Dr. Rachel Wynberg has written prolifically on strategies to make the rooibos industry more sustainable and equitable. I have included a brief excerpt of her suggestions from The Conversation on how to help mitigate these disparities.
Implementing access and benefit sharing in the rooibos industry requires a unifying, integrative and inclusive vision. Such an approach needs to:
- recognise the historical and existing injustices of the sector;
- acknowledge the significant contributions that have been made by traditional knowledge holders, researchers, individuals, farmers and commercial enterprises;
- regulate research and development to optimise benefits from bioprospecting;
- take action to deal with the environmental problems;
- embed access and benefit sharing within a wider developmental agenda involving access to markets, credit and land; and
- set in place restorative measures to transform the industry.
Berne Declaration and Natural Justice (2010, May 27). Dirty Business for Clean Skin: Nestlé's Rooibos Robbery in South Africa. Web: https://www.cbd.int/abs/side-events/resumed-abs-9/id2114-berne-policy-brief.pdf
Convention on Biological Diversity (2015, Jun 9). About the Nagoya Protocol. Web: https://www.cbd.int/abs/about/
Government Gazette (2008, Feb 8). National Environmental Management: Biodiversity Act, 2004: Regulations on Bio-Prospecting, Access, and Benefit-Sharing. Web: https://www.environment.gov.za/sites/default/files/legislations/nemba_regulations_g30739rg8831gon138.pdf
Natural Justice (2012, Mar 27). Rooibos Robbery: A Story of Bioprospecting in South Africa. Web: https://www.youtube.com/watch?v=GH5JF-n-rnA&feature=share&list=FL5BLrcEp1kF7lHGeXJgC2oQ
Price, Claire (2012, Feb 27). Climate change threatens S. Africa's Rooibos Tea. Phys.org. Web: https://phys.org/news/2012-02-climate-threatens-safrica-rooibos-tea.html
Wynberg, Rachel (2016, Nov 22). How justice can be brought to South Africa's rooibos industry. The Conversation. Web: https://theconversation.com/how-justice-can-be-brought-to-south-africas-rooibos-industry-68693
Wynberg, Rachel (2017, May). Making sense of access and benefit-sharing in the rooibos industry: Towards a holistic, just, and sustainable framing. South African Journal of Botany. DOI: https://doi.org/10.1016/j.sajb.2016.09.015