Case Study: Hoodia Gordonii Cactus (South Africa)
The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as "Bushmen", although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia's properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing the appetite." Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring. In fact, they became aware of it only after the excessive media coverage of Phyopharm's sale of licensing rights to Pfizer.
The Chief Executive Officer of Phyopharm, Richard Dixey, claimed that CSIR had led him to believe that "the tribes using the Hoodia cactus were extinct." He went on to say "I honestly believed that these Bushmen had died out and am sorry to hear they feel hard done by"
San expert Sandy Gall maintains,
"these ancient peoples have been exploited for years and it is disgraceful that it is still happening…they have been displaces and dispersed, but for someone to claim they thought the Bushmen no longer existed is either naïve or deceitful." (ibid)
The CSIR, however, asserts that they had every intention of informing the San peoples after clinical trials had been completed, and that they are fully committed to benefit-sharing with proprietors of traditional knowledge. Yet, according to Alex Wijeratna, of the development charity ActionAid, "this is a major case of biopiracy. Corporations are scouring the globe looking to rip off traditional knowledge from some of the poorest communities in the world. Consent or compensation is rarely given." (ibid)
In 2001 leaders from various San communities met with prominent lawyer and San advocate Roger Chennels to "plan their strategy against this injustice." (ibid) Speaking on behalf of the San peoples, Chennels informed the media that, "they are very concerned…they do not object to anybody using their knowledge to produce a medicine, but they would have liked the drug companies to have spoken to them first and come to an agreement." (ibid) Shortly after, the San tribes (as represented by Chennels) threatened the CSIR with litigation. Hoping to avoid international scrutiny and bad press CSIR consented to entering into talks with the San peoples. Lee Gillespie-White and Eric Garduno of the International Intellectual Property Institute contend, "a dialogue between the CSIR and the San tribes was opened and on April 9th, 2002, the San tribes and the CSIR announced that they had concluded a Memorandum of Understanding (MOU), which would serve as the basis for benefit sharing negotiations." (Gillespie-White and Garduno 2002:1) The terms of the MOU state that if P57 enters the market (Pfizer predicts that the drug will be ready by 2007), the San Peoples will receive six percent of the royalties incurred. Gillespie-White and Garduno state,
The MOU between the San tribes and the CSIR presents a middle of the road option that may prove to be the most effective course of action for the protection of TK. Under the MOU, the CSIR recognized the San as custodians of TK associated with the uses of a large variety of plant materials, including the Hoodia cactus plant. The San, in turn, acknowledge that it was necessary for the CSIR to protect the work that had been done in isolating the active ingredient in the plant and that the CSIR had a right to patent it. (p.3)
Not everyone, however, is hailing the outcome of this case a success. Dr. Tewolde Berhan Egziabher, of the Institute for Sustainable Development in Ethiopia, said "they (pharmaceutical firms) are stealing the loaf and sharing the crumbs." Nevertheless, Egziabher goes on to concede "after centuries of unjust and unfair extraction of our resources that continues today, this is a small step towards justice."