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Cablegate: Brazil to Introduce New Biopiracy Legislation

VZCZCXRO8405
PP RUEHRG
DE RUEHBR #0401/01 0661323
ZNR UUUUU ZZH
P 071323Z MAR 07
FM AMEMBASSY BRASILIA
TO RUEHC/SECSTATE WASHDC PRIORITY 8294
INFO RUEHRI/AMCONSUL RIO DE JANEIRO 3970
RUEHSO/AMCONSUL SAO PAULO 9360
RUEHRG/AMCONSUL RECIFE 6326

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

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