by Maria Eugenia Trombini and Markus Pohlmann

Whether chocolate, candy or drinks and sweeteners – products with Stevia are part of our everyday life. Coca-Cola Life and Lipton Ice Tea Green also use molecularly replicated stevia additives. The Belgian chocolate manufacturer Cavalier and the Swiss candy manufacturer Ricola have also launched products sweetened with Stevia. Sugar-free or calorie-free are the additives on the labels, which many of us are fascinated by. It is the promise of a brave new world – eating sweet food without calories, without getting dental caries or having a heart attack. Scientific progress and the big agribusiness and food companies make it possible. The medical studies are almost all positive: the plant-based stevia prevents diabetes and can be taken by diabetic patients. It’s also good in cases of tooth decay or cardiovascular disease. And the list of positive effects is much longer. So is it possible to snack without a bad conscience?

The market for stevia

Cargill is the world’s largest food company and the largest private company in the US. In November 2019, they started commercial scale production of Eversweet, its “next-generation stevia sweetener”. Together with Dutch food giant Royal DSM, Cargill succeeded in deciphering the molecular biological structure of the stevia leaf with the support of Swiss biotech company Evolva after years of effort. Only through the use of genetic engineering was it possible to produce the sweetener. The fermentation facility, a 10,000-square-foot addition to Cargill’s Nebraska plant, cost 50 million dollars, a modest sum considering the return it will bring when the more than 300 food and beverages in which the substance is being tested hit store shelves. The figures for the global stevia market really render enthusiasm to anyone operating within this branch: by 2025 a market value of USD 940.4 million is expected.[1]

The History of Stevia

To understand the popularity of the plant whose principal component makes its leaves 20 to 30 times sweeter than sugar we need to go back in time. For centuries the Guarani, indigenous people who live on both sides of the border region in Paraguay and Brazil, have been using “Ka’he’ê”, or “sweet herb” in the indigenous language. In 1887 a swiss botanist, Moises Bertoni learned about the properties of the wild plant from the Guaraní and Mestizos in north eastern Paraguay, classified it as a member of the sunflower family (Asteraceae), and – completely immodestly and without reference to the natives – gave his last name to the scientific nomenclature stevia rebaudiana Bertoni. If in the 19th century the export of raw materials from the southern part of the earth’s hemisphere was rather low, in the 20th century, as  raw materials trade grew and former colonies with large amounts of plant biodiversity realized that it was not them, but mostly foreign corporations who profited from their biological resources, the open access to genetic resources was called into question. The exploitation of genetic resources, among which those of the Guarani, nevertheless continued – now quite post-colonially. It was only later that political opposition began to emerge.

The protection of biodiversity and intellectual property

In 1993, United Nations members gathered at the Rio conference on Environment and Development agreed on the Convention on Biological Diversity (CBD), a legal document which accords sovereign rights to each state over their genetic resources. Translating to legal terms: whosoever wishes to access agrobiodiversity resources needs to consult the government in question and conclude a contract with the custodians of the associated knowledge establishing fair and equitable benefit-sharing. To remedy the inadequate implementation of the Convention at national level, the contracting states then adopted the Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (Access and Benefit Sharing, ABS) in 2010. Under this protocol, access to resources is subject to “prior informed consent” (PIC) and sharing is subject to “mutually agreed conditions” (MAT). These can take both monetary (i.e. royalties and joint ownership of intellectual property rights) and non-monetary (i.e. research, training, technology transfer) forms, if the indigenous or local communities possessing the traditional knowledge so decide. However, the problems did not end there, they only really began. The sweet life of the “biopirates” is hardly affected by this to this day.

The Loopholes

This is because the legal framework of the convention is seldom respected and even more rarely lawsuits for it to be upheld are successful. [2] Besides, the USA, for instance, is a user country who is not a party to the Convention (CBD), rendering its content unenforceable. In Germany, a national law implementing EU Regulation No. 511/2014 and adapting the Patent Act and the Environmental Audit Act in accordance the Nagoya Protocol entered into force on July 2016. The Act attributes the enforcement task of ABS rules to the auspices of the Federal Agency for Nature Conservation (i.e. Bundesamt für Naturschutz “BfN”). Intentional or negligent violation of the obligations is considered an administrative offence that may be punished by a regulatory fine of up to EUR 50.000. Also, the genetic material can be seized/confiscated and utilization stopped. However, food companies often do not use the plants, but their products are based on the chemical reproduction of their molecules. This makes the protection of “intellectual property” much more difficult to enforce.

Another loophole is that the EU regulation limits obligations to biological resources that were only made physically accessible in the countries of origin after the ratification of the Nagoya Protocol both by the EU and by the country of origin. And this is not usually the case of stevia. The Swiss Nagoya Ordinance provides an alternative interpretation to the temporal scope as it “encourages users to voluntarily share the benefits arising from the utilization of genetic resources or associated traditional knowledge in a fair and equitable way even when there is no legal obligation to do so. It [the Federal Office for the Environment] aims to ensure that the benefits are used to conserve biological diversity and the sustainable use of their components.” [3] In contrast, existing national legislation at provider countries (such as Brazil, India, South Africa and the Philippines) consider that the utilization of a genetic resource triggers obligations, rather than the acquisition, independently from where and when the physical access took place, which would safeguard Guarani´s claim to stevia.

Loose regulations and the corporate strategy

As a result, regulations are contradictory, mild and full of generous loopholes in Europe and Switzerland. At the institutional level, therefore, all preconditions are given to avoid the allocation of responsibility for the intellectual property of the Guarani and at the same time to meet the growing normative pressure with a reference to a possible future concession. However serious manifestations of willingness to abide may be: Corresponding contracts with the Guarani have not yet been concluded. In a joint report, the University of Hohenheim and civil society supporters of the indigenous people state that “neither the Guarani (Paî Tavyterâ and Kaiowa), who discovered Stevia’s sweetening properties, nor Paraguay or Brazil, the countries of origin of the plant, are receiving a fair and equitable share of the benefits arising from the commercialization of steviol glycosides.” On the contrary, companies like Cargill are filing patents for their artificially produced steviol glycosides and at the same time claiming their naturalness to consumers – without making any concessions to the Guarani. Even after paying $6.1 million for mislabeling their sweetener in the USA, the company continued to insist on the natural origin of its product. [4] A second civil lawsuit with a fine of $1.65 million for misleading consumers in connection with PureVia (another sweetener containing purified stevia extract instead of the natural plant) did nothing to change this.

What can we do about it?

But of course, the Guarani are also overstrained to find their way in the world of agreements, legal rules with loopholes and big corporations. For this they already fundamentally lack a collective form of organization to formulate their claims in a consensual way. This is why international NGOs are taking over, albeit without much success so far. One example, however, that the international patent system in particular could exert a corrective influence here is the controversy over teff – a grain that has been cultivated in Ethiopia for more than 3,000 years and is a key ingredient in the country’s culinary tradition (GIZ, 2008). In 2019, the intellectual property rights claimed by two Dutch companies on this grain, now dubbed a “cosmopolitan superfood”, were declared invalid in a lawsuit due to the lack of inventiveness. [5]

How can we increase the likelihood of compliance with the legal framework of the convention? It surely takes international cooperation, but sanctioning deviant, irresponsible actions by corporations depends on procedures at the national level: from the adoption of laws that prevent and prosecute the illegal use of genetic resources as a criminal offence, to verifying whether the patent system is in conformity with the current provisions against biopiracy.

This is still a long way off, and even Stevia will not sweeten the pot sufficiently. Because Stevia otherwise lets us eat without a guilty conscience, we should pay respect to the Guarani and their traditional knowledge and make sure that corporations commit to obligations on access and benefit sharing.

References:

[1] Bloomberg (2019). Global stevia market to witness a CAGR of 8.2 % during 2019-2025.

[2] Carmeliet, Tine & Eveline Van Keymeulen (2019). The Nagoya Protocol five years into play: key points of attention when working with genetic resources.

[3] Der Schweizerische Bundesrat/federal Council (2015). Ordinance on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation.

[4] Watson, Elaine (2014). Settlement fund in stevia deceptive marketing lawsuit alleging Truvia is not ‘natural’ rises to $6.1m. FoodNavigator.

[5] Schemm, Paul (2019). How Ethiopia got its grain back. Washington Post.

 

ALS, Stellungnahme Nr. 2019/22. Journal of Consumer Protection and Food Safety (2019).

Chen, C. , Gilmore, M., 2015. Biocultural Rights: A New Paradigm for Protecting Natural and Cultural Resources of Indigenous Communities.The International Indigenous Policy Journal, 6(3)

Deazley, R. 2004. On the origin of the right to copy: Charting the movement of copyright law in eighteenth-century Britain (1695-1775). Oxford: Hart Publishing.

GIZ, 2008. Utilising biodiversity-cui bono? The case of stevia, the sweetener of the Guaraní people. Issue Papers: People, Food and Biodiversity

OLG Karlsruhe, 2013. Beschluss, vom 31.10.2013 – 4 U 117/13.

OLG Rostock, Beschluss vom 05.09.2014 – 2 U 9/14.

Public Eye (2015), Der bitter-süsse Geschmack von Stevia.

Rabitz, F., 2015. Biopiracy after the Nagoya Protocol: Problem Structure, Regime Design and Implementation Challenges. Brazilian Political Science Review, 9(2), 30-53.

Sirakaya A. Balanced Options for Access and Benefit-Sharing: Stakeholder Insights on Provider Country Legislation. Front. Plant Sci., 01 October 2019.

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