Chargesheet against Bt firm in biopiracy case

COIMBATORE: A chargesheet has been filed against Maharashtra Hybrid Seeds Company (Mahyco), a subsidiary of Monsanto, the US agri business firm, for violating the bio-piracy laws in developing Bt Brinjal variety by using genes of local brinjal varieties without prior permission, according to Balakrishna Pasupati, chairman of National Biodiversity Authority.

Pasupathi spoke to TOI on the sidelines of a workshop on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) at the Institute of Forest Genetics and Tree Breeding (IFGTB) in the city. “We were convinced that there could have been a possible misappropriation of Indian biological varieties,” he said refusing to divulge more details. The chargesheet was submitted at the Dharwad principal sessions court against Mahyco and the University of Agricultural Sciences at Dharwad, he said.

Everyone is stealing germplasm: Dr. Hampaiah, Chairperson, AP Biodiversity Board

Author(s): Latha Jishnu

Date: Sep 15, 2012

When agronomist Ralladoddi Hampaiah was advisor to the Russian government, he discovered how easy it was to take genetic resources out of India. And also how easy it was to bring in such material—bypassing quarantining regulations and other critical formalities. He once took 100 seeds of maize for testing to Russia from Delhi, and at Moscow airport he was grilled thoroughly about the seeds, their origin and certification. On his return from Russia, he brought in an enormous quantity of seeds, all of 15 kg, but was waved through customs! No questions asked. That was in 1993 before the international convention on biodiversity came into being. But not much has changed since then, although India has passed its own laws on biodiversity conservation and has regulatory systems in place, says the man who is now chairperson of the Andhra Pradesh State Biodiversity Board. Coming to the post after a long innings with private seed companies, most of it with Pioneer Seeds, a multinational owned by DuPont, Hampaiah has a clear understanding of how the industry works. Everyone is stealing germplasm, alleges the official who has been in the news for several controversial actions, including a case against Monsanto. In a freewheeling conversation with Latha Jishnu, Hampaiah says biopiracy is a major concern, but shortage of funds and experts are hampering the work of state boards. Excerpts:

RALLADODDI HAMPAIAHWhy do you say our bio-resources are going out of India? We have laws to safeguard them.

It is not lack of laws but lack of understanding. Many of our ministries and departments don’t know the value of our germplasm. Till the mid-1990s, everything was exchanged freely. Look at the number of multinational companies (MNCs) that came to India because of our germplasm. It is all readymade for whoever wants to pick it from either the agriculture universities or research institutions in the country. Important germplasm resources we have are of sorghum, pearl millet, rice, cotton….Andhra Pradesh has a wealth of biodiversity and that may be the reason why we have hundreds of MNC operating in the state.

Is it all brazen theft?

No, the regulations also enable our germplasm to be taken out legally. Under Section 40 of the Biological Diversity Act, valuable material can be exported openly as “normally traded items”. It allows the Centre to exempt some items from the required permission from the National Biodiversity Authority (NBA) for use of biological resources. All kinds of germplasm are being sent out as “normally traded items”.

Who is sending out our germplasm?

Seed companies, pharmaceutical industry, researchers, just about everyone is stealing. The small seed companies steal from the big ones and the big ones get it from research institutions under various ploys after signing MoUs with them or with universities. No one declares the origin of the material. Other countries are particular about their genetic resources. In 1993, even before the Convention on Biological Diversity (CBD) was signed, I realised the difference in the way we treat our germplasm and other countries do. I took some 100 maize seeds to Russia when I was advisor to the government and they asked me for certification and other information. It was the same when I took out 15 kg of maize from Russia. The DNA of all the material is coded and registered and they follow the rules strictly. When I brought the seeds to India—and it was only to make a point—I was waved through customs. The plant quarantine officials were not present. So just to see how the system worked, I took the seeds to Faridabad where the office is located. They were taken aback and pleaded with me to take the seeds away quietly.

What is the way out?

Government should insist on a certificate of origin from NBA for all such items in addition to the phytosanitary certification. Every department should be sensitised to the value of our bio-resources, specially the customs. They have a major role to play.

Given these constraints, what have you done to protect biodiversity in Andhra Pradesh in the past six years?

We have taken a number of measures to spread awareness among the people by forming biodiversity management committees at the village-level and written to NBA about the trade in genetic material through the “normally traded” route. The regulator had no clue at the time about this. We had also filed a case for benefit-sharing against Monsanto for stealing the bacterium bacillus thuringiensis (Bt) from Mahanandi village in Kurnool district. (Bt is the most widely used bacterium in genetic modification of crops). Analysis of the soil shows that the bacterium comes from this area. We were claiming one to two per cent of sales revenue earned from the sale of Bt cotton (seeds) as royalty.

Are you saying Bt cannot be found anywhere else? What happened to the claim on Monsanto?

We have proved up to 99 per cent that Monsanto took Bt from Mahanandi. It did not contest this. But the case was not legally tenable because the notice to the US MNC was sent too late, in 2007. The germplasm was taken in 1992 and our regulation (BDA) came into force in 2002. The lawyers said the claim will now have to be fought in US courts.

Are there any other cases of biopiracy that you can cite?

Hundreds. In the case of Bt cotton, the germplasm was taken from Acharya Ranga Agricultural University in Hyderabad. What was used is a top quality variety called Narasimha. Unfortunately, the variety came into the public domain in 2004 when the registration period (18 years) ended. Similarly, so much rice germplasm has been taken away from the Directorate of Rice Research in Hyderabad which is a huge repository of our indigenous varieties. Nowadays MNCs are signing MoUs with it.

In the case of the Ongole bull, reports say the government gave a conservation award to a farmer for exporting its semen to Brazil at a time when Brazil is being accused of biopiracy. Doesn’t this undermine the board’s credentials?

No, that is not correct. The farmer was awarded for selling an Ongole bull to a Gujarat buyer for a big amount, Rs 35 lakh. Promoting this breed is a good example of conserving local biodiversity and creating awareness. I agree these bulls are taken to Bhavnagar for onward export to Brazil and other countries. But the problem is that the trade in Ongole bulls is huge. In a recent fair in Panama, a bull was on offer with a base price of Rs 3 crore. I have seen fancy catalogues of cattle fairs even in Australia where the Ongole bull is a prized breed.

At a recent fair in Panama, Andhra Pradesh’s Ongole bull was offered for `3 croreAt a recent fair in Panama, Andhra Pradesh’s Ongole bull was offered for Rs 3 crore (Photo: Guna Sekhar Pera)So what is the Andhra Pradesh board doing about it? After all Ongole bulls have been traded for over a 100 years and are now an international breed.

I spoke to the CBD executive secretary Braulio Ferreira de Souza Dias, a Brazilian, about this issue. He said we should have a cut-off date—1993 when CBD was established—otherwise, it would become too messy if we delved too far into the past. Now, another breed, the Punganur cow (from Punganur in Chittoor district), is becoming important and we want to create awareness about it.

What can the board do about conservation?

Spread awareness and ensure fair benefit-sharing from the use of bio-resources as we did in Amarchinta village in Mehboobnagar district. We found that a local company was sending big shipments of neem leaf to Japan but was paying the villagers just Rs 20 per kg. We helped the local biodiversity management committee to get a much better price of Rs 100 per kg for the neem. But I must admit that if the Japanese buyer had not insisted on a certificate of origin and forced the local exporter to come to us we would not have come into picture.

The focus seems to be just plants. What about other species?

What can we do without funds? So far, we were getting just a sustenance allowance and had no place even to sit. There is little we can do on awareness and capacity building at the grassroots. Only now, on account of the Conference of Parties to CBD in Hyderabad in October we are getting Rs 8 crore.

That’s a huge sum. What do you plan to do with it?

We have been granted six hectares so we will start building an office and museum.

British firm’s bid to patent ginger foiled: After Neem and Turmeric its Ginger’s turn

Kounteya Sinha TNN

New Delhi: India has foiled an attempt by a British pharmaceutical company to patent usage of ginger to treat cold. While Indians have been gulping down ‘adrak chai’ for generations as a home remedy, Nicholas John Larkins, London, filed a patent application (GB2436063) titled “Pharmaceutical composition for the treatment of excess mucous production” on March 16, 2006 at the British patent office. The firm claimed a “unique finding” in the use of ginger (Zingiber officinale) and kutki (Picrorhiza kurroa) for the treatment of cough and lung diseases.
“Within two weeks of India providing evidence (including 18th century texts), the attempt to pirate India’s traditional medicinal knowledge was struck down by the UK patent office in 2011,” a health ministry official said.
Remedy Rebound
British pharma firm files for patent in 2006, claiming it discovered use of ginger and kutki plant in treatment of cold India cited medicinal texts dating back to the 18th century on use of ginger to treat cough, asthma & lung diseases British patent office accepts Indian evidence, throws out application 5 years later Database helped thwart UK patent bid 
New Delhi: Countering the patent claims of British pharmaceutical company on using ginger for the treatment of cough and cold, the department of AYUSH and Council of Scientific and Industrial Research (CSIR) intervened and provided evidence from age-old ayurveda and unani books, dating back to the 18th century that talked about ginger and kutki being used alone or in combination with other ingredients to treat cough, bronchial asthma and lung diseases.
The books that were referred to as evidence by CSIR included Ilaaj-al-Amraaz (18th century), Bhaisajya Ratnavali and Bharata Bhaisajya Ratnakara (1000 BC), Bayaaz-e-Kabir (1938 AD), Muheet-e-Azam (19th century) and Khazaain-al-Advia from the 20th century.
“India through the Traditional Knowledge Digital Library (TKDL) submitted its prior art evidences on April 25, 2011. The examiner terminated the patent application before grant,” a health ministry official said. Till about 10 years ago, around 2,000 wrong patents concerning indigenous systems of medicine were being granted annually at the international level due to lack of evidence provided by India. The digital library has been a real boon for India. More than 2.26 lakh rare medical formulations which were part of the ancient Indian texts have been dug out, transcribed, documented and digitized into the path-breaking TKDL to protect them from biopirates.

Parliament told that Mahyco/Monsanto will be prosecuted for biopiracy in Bt Brinjal case

Funding of NBA on BT. BRINJAL
National Biodiversity Authority (NBA) has received a complaint from M/s. Environment Support Group, an NGO on the alleged violation by M/s. Mahyco / M/s. Monsanto and their collaborators for accessing and using the local brinjal varieties for development of Bt Brinjal. NBA has decided to proceed as per law against the alleged violators on the basis of reports of the State Biodiversity Board for accessing and using the local brinjal varieties without prior approval of the competent authority.

This information was given by the Minister of State for Environment and Forests (Independent Charge) Shrimati Jayanthi Natarajan in a written reply to a question by Shri M.P. Achuthan And Shri D. Raja in Rajya Sabha today.

Mahyco defends action in Bt brinjal trials

BS Reporter / Chennai/ Bangalore August 17, 2011, 0:33 IST

Seed company, Mahyco has clarified it has not violated any provision of the Biological Diversity Act, 2002, in its research to develop Bt Brinjal.

Recently, the National Biodiversity Authority of India (NBA) had recommended legal action against Mahyco and Monsanto for violating the biodiversity protection law in promoting Bt Brinjal. “Mahyco has not indulged in any activity which would be a violation of the Biological Diversity Act, 2002,” a company statement said.

In a resolution at its meeting on June 20, the NBA had decided to initiate legal action against Mahyco/Monsanto and their collaborators for using the local brinjal varities in developing Bt brinjal without a prior approval of the competent authorities, the Environment Support Group (ESG) said in a statement here, quoting from the resolution released on Thursday last in New Delhi.

The NBA decision was based on a complaint filed by ESG with the Karnataka Biodiversity Board on February 15, 2011.

“The state board investigated the matter and informed NBA on May 28 that six local varieties for developing Bt Brinjal were accessed in the state by the two companies without prior approval,” the statement said.

The board also recommended legal action against the University of Agricultural Sciences at Dharwad in north Karnataka, Tamil Nadu Agricultural University in Coimbatore, and Sathguru Management Consultants Ltd, representing the consortium involving the United States Agency for International Development and US’ Cornell University for collaborating with the seed firms in violation of the Biological Diversity Act (section 4).

The Bangalore-based ESG accused the agencies of illegally accessing 10 varieties of brinjal in Karnataka and Tamil Nadu without the consent of the regulatory boards although it was mandatory to protect the loss of biodiversity from contamination when transgencis are involved.

In addition, the law mandates that when biodiversity is to be accessed in any manner for commercial, research and other uses, local communities who have protected local varieties and have been cultivating for generations must be consulted, and if they consent, benefits must accrue to them as per the internationally applicable ‘Access and Benefit Sharing Protocol’.

The environmental release of the first ever Genetically Modified Food (Bt Brinjal — eggplant) in India, promoted by Mahyco (an Indian subsidiary of US-based Monsanto), was stayed by a February 2011 moratorium decision on the product’s environmental and commercial release by the then Environment Minister Jairam Ramesh. This decision was the outcome of public opinion gathered in a series of nation-wide public consultations that he held and was also based on a variety of scientific evidence and legal analysis.

NGO alleges ‘bio-piracy’ by Monsanto’s Indian subsidiary & its collaborators: True or false?

 Environmental Support Group (ESG), a NGO headquartered at Bangalore has levelled serious charges of violation of India’s Biological Diversity Act (BD Act), against Mahyco, (26% of which is owned by Monsanto) and its collaborators – the University of Agricultural Sciences, Dharwad (UAS) & Sathguru Management Consultants (P) Ltd., which was acting as a co-ordinator on behalf of USAID and Cornell University. The ESG website accessible over here has done an admirable job of making sure that all the necessary documents used as the basis of their complaint are freely accessible to everybody.

Image from here.
The target of criticism is a tripartite research and collaboration agreement, dated 23rd April, 2005 between Mahyco, UAS and Sathguru Pvt. Ltd (available over here and here) aimed at the development of pro-poor varieties of eggplant that are insect tolerant, a.k.a. genetically modified Bt. Brinjal which in itself has been the subject of considerable controversy over safety fears. Protests against the genetically modified Bt Brinjal were so vociferous that the then Minister for Environment Mr. Jairam Ramesh announced a moratorium on any further testing of Bt. Brinjal until there was public consensus on the safety issues. While the safety and regulatory aspect is dealt with by committees constituted under the Ministry of Environment and the Department of Biotechnology, the aspect of accessing biological resources are dealt with under the Biological Diversity Act, 2002 which is also administered by the Ministry of Environment and a statutory body which is the National Biological Authority.

As per S. 3 of the BD Act, foreign companies or citizens seeking to access biological resources in India are required to take the prior approval of the National Biological Authority while Indian citizens and companies are only required to intimate, not seek approval, of the State Biological Authorities’ for carrying out similar functions. As per Section 5(1) no approvals are required in the case of collaborative research between Indian and foreign parties provided that such collaborative research projects are approved by the Central Government and conform to guidelines issued by the Central Government. In the present case the guidelines were published by the Ministry of Environment in the Official Gazette only on the 8th of November, 2006. (These guidelines are available over here.)

In its complaint to the Karnataka Biodiversity Board, ESG has alleged the following violations by the three parties:

(i) That when the Central Government formulated and issued guidelines on the 8th of November, 2006 the three parties failed to approach the NBA, under S. 18, for approval and clarification on the guidelines. ESG also states that the three parties should have intimated the Karnataka Biodiversity Board, under S. 7 of the Act, of their intent to access biological resources within its jurisdiction. Under the BD Act, 2002 accessing biological resources in the country in violation of the Act can attract penal sanctions.

(ii) The second allegation pertains to the alleged violation of S. 41(2) of the BD Act, 2002. ESG states in its complaint that S. 41(2) requires the permission of not only the NBA and the State Board but also local biodiversity authorities and since such permission was not taken, the local communities who developed the biological resources were deprived of their right to benefit from the commercial gains that would be made by the three parties.

On the basis of the above allegations, ESG ‘demanded’ that the Karnataka State Board conduct a full-fledged inquiry and initiate criminal proceedings against all the above parties. ESG also provides a link to the Minutes of the NBA meeting on the 20th of June, 2011 which states that the NBA is going to initiate legal action against Mahyco and it collaborators for using local brinjal strains to develop the Bt Brinjal without prior approval of the NBA.

A. The counterpoint from Mahyco & its collaborators: ESG has also provided on its website scanned copies of the replies received by the Karnataka State Board from Mahyco and its collaborators on the issues raised by ESG. These replies are available over here.

The replies by these three parties are rather vague and don’t really rebut strongly any of the issues raised by ESG. At the most they provide a detailed factual background to the tripartite agreement and the Government of India’s involvement in the project. Both UAS and Sathguru have clarified that the Agricultural Biotechnology Support Project – II, managed by the Cornell University to transfer technical know-how to India, has the Department of Biotechnology, Government of India as one of its partners. The implication therefore being that the Government of India had complete knowledge of the program from the beginning. This is further confirmed by the website of Cornell University over here.

B. The possible legal roadblocks to ESG’s allegations: The weakness of both the allegations is explained below:

(i) The first allegation pertaining to the violation of the Central Govt.’s guidelines published under S. 5(3)(a) appears to be rather weak since the collaboration agreement under dispute was entered into with blessings of the Department of Biotechnology therefore implying that the Central Government approved of the project thus fulfilling the conditions of S. 5(3)(b). Since the conditions of S. 5(3)(b) are fulfilled, the conditions of the BD Act, 2002 are fulfilled and there is no violation of the law. Further, projects such as this are now officially a part of the Central Government’s agricultural policy especially in the context of the Indo-U.S. Knowledge Initiative on Agriculture which kicked off in 2006.

(ii) The second part of the first allegation pertaining to violation of S. 7 i.e. non-intimation to the Karnataka Biodiversity Board also may not stand in a Court of law since S. 7 clearance is required only in cases pertaining to ‘commercial utilization’ and the present tripartite agreement under dispute does not state that it has commercial goals. The focus of the agreement seems to be centred on technology transfer to the Indian partner. However I will concede that more information is required to decide this point.

(iii) The third allegation on the violation of S. 41(2) of the BD Act, 2002 is quite weak, since that provision requires the NBA and the State Boards, and not the applicant, to consult with local biodiversity management committees while taking any decision relating to the use of biological resources and knowledge associated with such resources. Therefore only the NBA can violate S. 41(2) and not UAS, Mahyco and Sathguru.

Heat on Monsanto over brinjal piracy

American seed giant Monsanto and its Indian collaborator, Maharashtra Hybrid Seeds Company (Mahyco) are to be prosecuted for allegedly ‘stealing’ indigenous plant material for developing genetically modified brinjal variety known as Bt brinjal.

The National Biodiversity Authority (NBA), a statutory body set up under the Biological Diversity Act, 2002, has decided to initiate legal proceedings against the two companies and their collaborators for using indigenous brinjal germplasm without necessary permission.
Taking plant material without any permission and using it for commercial purposes is considered an act of biopiracy.

“The authority has decided to proceed legally against Mahyco and Monsanto, and all others concerned to take the issue to its logical conclusion”, NBA secretary C Achalender Reddy said. The decision on the complaint filed by the Bangalore- based Environment Support Group (ESG) was taken in June by the authority and it was formally confirmed during its meeting held in New Delhi this week.

Any violation of the Biodiversity Act is a non- bailable, cognizable offence and the authority plans to initiate criminal proceedings against the offenders. It took almost one year for the authority to prepare a case against the two companies.

This is going to be a test case of biopiracy because for the first time a commercial entity will be booked under the Biodiversity Act.

ESG had accused the two seed companies and their Indian collaborators including UAS of using germplasm of six local varieties of brinjal for the development of Bt brinjal.

While Monsanto and Mahyco are trying to blame the University of Agricultural Sciences (UAS), Dharwad, for supplying the local brinjal varieties, this may not weaken the case against them as the law makes no such distinction. Even USAID which facilitated agreements between Mahyco and Indian universities will have to share the blame.

“This is an unprecedented development in the conservation history of India”, said Leo Saldanha of ESG who had filed the complaint against the seed companies along with Bhargavi Rao. “While we are happy that action is finally being initiated, it is also a sad indicator that NBA acted only on the basis of our complaint and our persistence that some action was taken”. When contacted Monsanto tried to distance itself from the case by saying that it had not developed Bt brinjal, but it had been ‘developed by Mahyco, with the Cry1Ac gene accessed from Monsanto, in collaboration with multiple public sector institutions’. This is a halftruth because Monsanto owns 26 percent of Mahyco, and also has a separate joint venture Mahyco Monsanto Biotech Limited which handles its business related to Bt.

Interestingly Mahyco also denied any violation of the Biodiversity Act and said the Karnataka Biodiversity Board had informed it in April that “there has been a violation by UAS, Dharwad in using six local varieties of brinjal. Information was sought pertaining to the objectives of the agreements between UAS, Dharwad and the same is under consideration by the authorities”.