Patents on Life
Apr 5, 2006 |
Image: Illustration: Solomon Enos
Design: Ilsa Enomoto
In the early 1900s, Kane’ohe, La’ie, Kahalu’u, Manoa and Waikiki looked just like Hanalei-green storybook terraces of kalo lo’i. On the neighbor islands, Api’i thrived in Waipi’o; Red and White Moi dominated Wailua; Hanalei boasted Lehua Maoli and Maui Lehua–taro once reserved for the ali’i. Over the course of a millennium, Hawaiians, called by historians the ‘most sophisticated horticulturalists in Polynesia,’ cultivated more than 300 varieties of taro.
As buildings went up, taro cultivation went down. Today, taro production is at an all-time low since crop yields were first published. In 2005, four million pounds were harvested, down 19 percent from 2004. On the Big Island, 50 percent less taro was brought to market–250,000 pounds versus 500,000 pounds in 2004. The obvious culprits are heavy rains and pests–apple snails, pocket rot, leaf blight.
Inside the labs at the University of Hawai’i, researchers are looking for ways to address the problem. They injected disease-resistant genes from rice into Chinese, Hawaiian and Samoan taro varieties, finding success only with the Chinese Bun Long variety, on which they continue to experiment. They also crossbred Maui Lehua taro with Palauan taro and came up with bigger taro that was also more resistant to leaf blight and pocket rot. In 2002, they patented three of these hybrids, raising the ire of the native Hawaiian community that, according to Hawaiian mythology, traces its genealogy back to the first taro plant Haloanakalaukapalili, the elder brother of Haloa, from whom all Hawaiians are descended. Haloa, they insist, is not for sale.
is the great frontier.
Meanwhile, in the fields, the farmers are looking to nature for an answer. They say taro will thrive with an adequate supply of clean, cold water, long fallow periods, fertile soil, crop rotation and diverse small plantings–in other words, good farming. ‘The earth-loving planter finds something very real and sensual about feeling the ‘good earth,” Hawaiian scholar George Kanahele wrote, describing the soft mud of the lo’i that oozes around the fingers and toes of a taro farmer planting his huli.
Organic farmers believe the current model of industrial agriculture is flawed. Here’s the basic low-down: Food comes from farms. Big companies own big farms (that use big machines, pesticides and fertilizers that use a lot of oil). They search for ways to push production. One way involves borrowing tools from other living things to make ‘new’ and ‘improved’ food–genetically modified organisms (GMO), also called transgenic organisms. These new foods are sold, unlabelled, to consumers. The big companies own the seeds to the new foods, and they won’t share. Sometimes birds and bees carry these seeds to small farms. The big farms call that stealing, and they sue the small farms. More and more, the food we eat is the new food from the big farms. The number of predominant GMO crops–canola, corn, soybeans, and cotton farm–covered 3.7 million acres in 1996 and 100 million acres in 2003.
Big companies also figured out that Mother Nature holds the remedies for all kinds of human predicaments–a South African cactus that is a hunger suppressant, a deadly Filipino sea snail whose venom makes a great painkiller, an Andean root that’s a natural Viagra, and so on and so forth. So now they’re trying to own it all. They call this mission biotechnology.
But some are wary of the leap from nature to technology. Longtime Hawaiian activist and Moloka’i taro farmer Walter Ritte prefers a spiritual rather than scientific approach. ‘Hawaiians call it mana. It’s our spiritual power, the essence of who we are. It’s kept us alive for thousands of years,’ he says. ‘The problem is that someone gave the mana a new name–biodiversity.’
He calls the bid to own Hawai’i’s biodiversity the ’second Great Mahele.’ ‘They want to buy and sell, manipulate and own the mana,’ Ritte says. ‘But they picked the wrong plant. They picked on our brother.’
Andy Hashimoto, dean of the UH College of Tropical Agriculture and Human Resources where the taro research is based, points out that as the world develops, the proprietary knowledge that was commonly shared in the past is now being patented. ‘If someone else patents it, we will have to pay the royalties,’ he warns.
Ritte says, ‘That’s like saying, if I don’t rape you, somebody else will, so let me rape you first.’
Hashimoto recognizes the conflict is a clash of native Hawaiian values and academic values. ‘If the sentiment is don’t mess at all with the Hawaiian varieties of taro, personally I would accept that. But I would hope they would understand the long-term consequences: In 100 years, Hawaiian taro is not going to be here,’ he says. Hashimoto explains that genetic modification is an important tool that researchers can use to protect plants from diseases, pointing out that the taro is vulnerable the way early Hawaiians were susceptible to plague. (To which Hawaiian studies professor Lilikala Kame’eleihiwa responds, ‘But we didn’t change the Hawaiian people. We attacked the disease.’)
But Hashimoto is right. Not only can genetic modification protect plants from disease, it protects people from disease. In 1982 Eli Lilly & Co. introduced Humulin, a human insulin produced by bacteria. It became the first genetically engineered drug approved by the FDA, to the great relief of 177 million diabetics. By 1997, 10 of the world’s 25 top-selling drugs were genetically engineered. According to the United Nations Environment Programme, more than 40 percent of all prescriptions written in the U.S. contain at least one drug that originates from wild species of fungi, bacteria, plants and animals. Food-wise, GMOs have the potential to be more disease- and pest-resistant, more delicious and more nutritious. So why do GMOs get such a bad rap?
The warrior papayas
In 1998, the University of Hawai’i in collaboration with Cornell University introduced the first genetically modified trees via two transgenic varieties of papaya: the yellow-fleshed Rainbow and the red-fleshed Sunup. These warriors were resistant to the ringspot virus, which in the early ’90s threatened to devastate Hawai’i’s fifth largest crop and second biggest commercial fruit export. Since then, more than 100 million pounds of GMO papaya have been sold, and now more than 50 percent of Hawai’i’s papaya trees are GMOs. UH researchers, who ostensibly saved the $47 million industry, were awarded the prestigious 2002 Alexander von Humboldt Foundation Award for Agriculture.
However, organic papaya farmers who made the switch say GMO papaya fetches 600 percent less in price, and they lost many customers (like Japan, formerly Hawai’i’s biggest papaya importer) that refuse GMOs. They also discovered the GMO papayas to be vulnerable to blackspot fungus, so they have to be sprayed every 10 days.
In 2004, an independent study by reputable scientific lab Genetic ID showed that the genetically engineered seeds went slummin’. More than half of 20,000 organic and wild seeds on the Big Island tested positive for GMO contamination. Organic farmers were outraged, fearing both a loss of their organic certification, the end of the natural papaya industry and lawsuits for unintended patent infringement.
New Scientist magazine illustrates the borderless nature of genetic modification by stating the limitations of natural crossbreeding: You can cross a donkey and a horse to make a mule, but you can’t cross a donkey and an oak tree. Genetic engineering, however, lets you try.
More GMO field tests are conducted in Hawai’i than in any other state–more than 4,000 to date. Proposed state legislation that limits genetic modification–specifically on Hawaiian taro and coffee–continues to be defeated. Cross-pollination happens, the GMO industry shrugs. It’s the birds, the bees, the wind. So now organic farmers who want to claim organic and mean it have to put plastic bag condoms over the flowering buds. But there’s no way to keep all the plants from unprotected sex, and should a natural plant meet a dodgy biopharmaceutical in some dark alley, the consequences could be fatal.
That is a risk inherent in biopharming–growing modified plants to develop drugs and chemicals. These pharma crops look just like natural plants, but they’re not: spermicidal corn used for contraceptives, potatoes loaded with genes for cholera, spinach carrying a rabies vaccine. They are toxic to humans. The Union of Concerned Scientists shows Hawai’i is a hotbed for biopharming, with 40 previously approved pharma crops, tied with Puerto Rico and more than any other state.
To put a finer point on it, the USDA Inspector General’s 2005 audit report concluded that the Animal and Plant Health Inspection Service (APHIS), the agency that issues permits for field testing genetically engineered crops, is doing an inadequate job in monitoring whether companies are complying with containment standards, whether there are harmful environmental effects, and what happens to the harvest after the field test ends. ‘Of primary concern,’ the report states, ‘the precise locations of all GE field test sites planted in the United States are not always known.’ It’s hard to monitor an experiment if you don’t know where it’s happening.
This little factor contributed to a landmark 2004 ruling in which a federal judge ordered the disclosure of biopharm open-field test sites in Hawai’i. The locations were used to buoy a lawsuit filed by Earthjustice representing the Center for Food Safety, Friends of the Earth, Pesticide Action Network North America and KAHEA: The Hawaiian-Environmental Alliance, charging that biopharmaceutical companies violated the National Environmental Policy Act and the Endangered Species Act by failing to submit mandated environmental impact statements before conducting open-air field tests.
According to Earthjustice attorney Paul Atchitoff, biopharming is opposed by a broad spectrum of interests, from the National Academy of Sciences to the Grocery Manufacturers of America. ‘They’re terrified of the possibility that they’re going to wake up one morning and read in the newspapers that some pharmaceutical drug has been found in a box of corn flakes, and they’re going to be liable,’ he says. ‘They’re very upset that the government continues to allow this. It’s crazy to use the same crops that you use to feed humans and livestock–you can’t visually tell the difference between one ear of corn and another–to grow things that aren’t suitable for human consumption, especially given the likelihood of contamination. It’s a public health and environmental disaster just waiting to happen.’
The problem with patents
At the heart of the problem is the ownership issue. After all, as Ritte points out, ‘Nobody’s going to invest in biotech unless you can own the product–biodiversity.’ But why use private property laws to govern what ought to be owned by the public?
Anyone who wants to grow the taro that UH has patented must pay royalties equal to 2 percent of their gross revenues after three years. Farmers, whose taxes help fund the university, are not allowed to sell or give away any huli. Dean Hashimoto says revenues from licensing the taro would be split 50-50 between the faculty member and the university.
Exclusionary by nature, the patent doesn’t require the patent holder to exercise the invention; it just keeps others from doing so. Think of it as a second homeowner’s beach house that removes the ocean view from the public eye–even if he doesn’t use it, nobody else can, unless you pay him to rent it. These patents go so far as to assign ownership over the fundamental building blocks of nature–the natural-born organisms that, like the primary colors, combine organically to create the earth’s rainbow of biodiversity. Science News reports that nearly 20 percent of all human genes have been patented, 63 percent of them by private companies. The beachfront property’s going quickly.
Former USDA attorney and environmental activist Claire Hope Cummings says, ‘The central problem is, are we going to have an economic or an ecological vision?’ She envisions a system in which local and regional farming are promoted, and government isn’t hamstrung by ‘their only idea of economic development [as] a large resort owned by a multinational corporation where the money doesn’t stay in the county and is based on tourism–versus providing fresh, sustainably raised foods for people that employ local people.’
She continues, ‘People who don’t have enough–people on food stamps and suffering from diabetes and social health inequities–don’t know that when they buy this highly processed food they’re participating not only in an industrial ag system but hurting their own personal health.’
Looking for life in all the best places
Since Hawai’i is the most biologically diverse state in the country, with more than 22,000 species of plants and animals, 9,000 of which are not found anywhere else, it’s a gold mine for bioprospectors.
The 1992 United Nations Earth Summit established the Convention on Biological Diversity (CBD), which created a global protocol for bioprospecting. It emphasizes the importance of conserving biodiversity, prior informed consent for its exploration, sustainable use of its components and fairly shared benefits from the use of genetic resources–including the acknowledgment of indigenous rights. The U.S. is not a party to the CBD (a distinction we share with East Timor, Iraq, Brunei, Andorra and Somalia), and no state, including Hawai’i, has enacted legislation governing bioprospecting.
In a regulatory vacuum, bioprospecting quickly becomes biopiracy. To wit: In 2004, researchers from Massachusetts received permission to collect a specific marine mollusk from Hawaiian waters. They collected more than 10,000 mollusks and shipped them from O’ahu to Boston, ultimately to be sent to a pharmaceutical company in France–until the U.S. Fish and Wildlife Service impounded the shipment.
The Division of Forestry and Wildlife (DOFAW) and Division of Aquatic Resources (DAR) of the Department of Land and Natural Resources (DLNR) require a written permit for the collection of plant, animal and geological materials, and a few marine species, respectively, in areas under their jurisdiction. Applicants who are bioprospecting don’t have to reveal their intent. And besides threatened and endangered plants and animals, biodiversity samples are not prohibited from being taken out of Hawai’i.
According to a January 2006 report to the state legislature by researcher Peter G. Pan, the University of Hawai’i is currently involved in six bioprospecting projects (none of which the DLNR claims to have permitted). One of these is an ominous-sounding initiative, funded by the UH Accelerated Research Commercialization Program and described as an effort in partnership with Hawaii Biotech, Inc. to ‘identify bioterrorism drug candidates from plants and marine algae in UH Biological Collections (not all specimens from Hawaii).’
Two weeks ago, UH trumpeted the discovery of a staph-fighting bacterium from a marine organism in Kane’ohe Bay. The research was conducted as part of an exclusive agreement with Diversa Corporation, a San Diego biotech firm. The contract states UH will be ‘responsible for the collection, processing and shipment to Diversa of environmental samples from diverse habitats and/or DNA samples isolated from such environmental samplesÖ’ If any of the biogenetic material proves to be commercially viable, UH receives royalties that commensurate with the industry standard for that particular kind of invention.
While exact numbers aren’t disclosed, Kevin Kelly, managing director for UH’s Experimental Program to Stimulate Competitive Research (EPSCoR), says typical payouts for active compounds start at 0.5 to 2 percent. Enzymes might fetch a little more, but royalties never even approach 5 percent. Kelly explains the academic standpoint: Biological discoveries will help develop the life sciences industry in Hawai’i, diversifying the economy and bringing more research opportunities and high-paying jobs. Why should companies stand to gain from something taken from Hawai’i’s biodiversity? If researchers can take a microorganism from a spoonful of dirt and develop a beneficial end product, that process is valuable and worthy of protection. Without it, the spoonful of dirt remains a spoonful of dirt.
But watchdogs point out that those spoonfuls of dirt (or drops of seawater) belong to the public. According to the state attorney general’s office, if the state doesn’t reserve title to biogenetic resources on public lands, then the state doesn’t own them. Bottom line: If Diversa produces a staph-fighting drug from the Kane’ohe marine species, the state has no way to exact compensation for the exploitation of the resources from its public lands, which are supposed to be held in the public trust–and in the case of ceded lands, for the benefit of native Hawaiians.
Last Friday, a concurrent resolution requesting the establishment of a temporary advisory commission on biological prospecting passed the House Agriculture and House Economic and Business Concerns committees with broad support from all the relevant government agencies, UH, OHA and the biotech industry. Everyone agrees that rules must be made before things get out of hand. ‘The fear is that bioprospecting facilitates the creation of artificial mutations that, when propagated, could cause unintended, uncontrollable, and irreversible harm,’ the legislative report says.
Current laws allow these mutant makers to act like parents who say, if the kid’s doing something good, he’s my kid–they claim ownership; if he’s acting up, he’s your kid–they’re not liable. Given the blurring of science and nature, the precautionary principle becomes a valuable implement for regulators. The burden of proof should rest on the innovators to show a new product is safe lest everyone else have to learn the hard way that it’s not.
Claire Hope Cummings:
Putting the culture back in agriculture
In the 1930’s, Hawai’i was completely food self-sufficient. Today, we import 90-95 percent of what we eat. At a time when that lifeline is threatened by our dependence on non-renewable resources and manipulated by corporate claim jumpers, people are beginning to recognize the importance of finding a different, sustainable approach to agriculture. Can Hawai’i feed itself? Environmental and native land rights lawyer and journalist Claire Hope Cummings says yes. The former attorney for the U.S. Department of Agriculture has served as general counsel for numerous environmental organizations including The Cultural Conservancy, which she also founded. She will give a talk on ‘Food Security: Hawai’i’s Sustainable Future’ at Patagonia in Hale’iwa on Saturday Apr. 8 at 6:30PM.
How did food crops leave the hands of local community farmers and turn into an experimental playground for biotech companies?
What drives this is a perceived need by universities to do research to improve crops. The real perspective is that indigenous people and farmers have always done the research themselves. In the last half of the 20th century, universities took over that function. It used to be in cooperation with farmers and farm organizations, but in the ’90s, corporations took that over and the whole research system became privatized. That was partly because of the 1980 Bayh-Dole Act [that] allowed universities to benefit by taking out patents on their ‘inventions.’ As a result, it put profit into the whole picture. Once profit became the motivating force in agricultural research, it changed a lot about what questions get asked and why certain crops are developed and why others might be neglected.
So profits have driven us to treat plants and crops as commoditiesÖ Can we lose the idea of ownership?
Our private property legal system came out of economic imperative. Given climate change, the end of oil, and environmental issues we’re facing now in the 21st century, we’re going to have to come up with a new system. The good news is the system we had before is not set in stone. We made it up in response to certain exigencies. We can make up another one that works better now for restoring ecological balance.
How are the patents encroaching on the rights of indigenous peoples?
The concern with the utility patent-like the ones UH has on the taro-is that it doesn’t just apply to the particular genetic structure that was altered. For example, it’s kind of playing out that Syngenta owns x number of varieties of rice. They’re asserting ownership not only on the genes they’ve manipulated, but on the genes that nature provided the world and that indigenous people and farmers who developed rice varieties over centuries provided.
What’s being disregarded is the relationship between the people and the plant, between the farmer and the taro. When the farmer goes out and chants to his taro, when he observes how it reacts to snail infestations, when the schoolchildren learn their taro heritage-those cultural relationships are what’s important. Economically, [the GMO] model hasn’t proven itself. What I’m concerned about is the whole love affair with technology and the sacrifice of culture.
As far as policy is concerned, what changes should be made?
I’m a big fan of an architect by the name of William McDonough. He basically says that regulation is a design flaw-if you have to regulate, you’ve got a design problem. So I would rather re-design than re-regulate. The re-design would encompass allowing assertions of sovereignty by native people over their biodiversity. They could have informed consent and decide to participate in prospecting, but it’s really important that they also have a right to decline: They could say, no, this is sacred, we don’t allow any tampering, it cannot be removed.
Are you optimistic that change will happen?
The agriculture system we have is zombie agriculture. Twenty-six billion dollars worth of subsidies are making this look like it’s a living system, but it’s been dead for a long time. I just read a report by the USGS that says U.S. farmers are putting 1 billion pounds of pesticides on the ground every year, and now 90% of all the rivers and streams in the US are contaminated with cancer-causing pesticidesÖ. And now with the World Trade Organization and peak oil, there’s huge pressures on this industrial agriculture system. It has to change. Change is inevitable.
How long will it take?
A decade. We are at an agricultural tipping point. There are a few ingredients that have to come together like policy, investment, technology. Is the technology there? Yes. Do the communities have the ability to do it? Yes, communities all over the world have revitalized their local agriculture. Oil is going to drive this, the end of subsidiesÖ. We now have the technology to provide all the fuel and power we need with existing alternative fuel technology, and we have the technology and the know-how to provide food for everyone on the planet using sustainable growing methods. The collective knowledge of 30 years of organic farming has proven this productivity.
So, we’re there. The missing piece is leadership. We’re used to thinking of leadership as Gandhi or Martin Luther King. The way leadership is happening now is going to come from thousands and thousands of small organizations becoming self-aware and networking.
