Fontes: Drs. Simone Paschoal Nogueira and Marina Vieira Freire
Brazil adopts business-friendly biodiversity law
Friday, 19 June 2015 (3 hours ago) • Alison O’Connell
Credit: Dlumen (ThinkStock)
Brazil's new Biodiversity Law – aimed at cutting the red tape around research and
development for suppliers and manufacturers in the cosmetics, food, and
pharmaceutical industries – has been welcomed by counsel in the country.
The law, sanctioned by President Dilma Rousseff on 20 May, regulates and simplifies
how companies utilise natural biological resources and associated traditional
knowledge, as well as stipulating how resulting benefits should be shared.
The law has been welcomed by many in the business and science community who
have long criticised the country’s regulations for being too complex and bureaucratic.
“For so long, companies have not had any legal security and support to properly
explore and take advantage of Brazil’s vast biodiversity, so the idea is to ensure easier
access to research involving biodiversity,” says Caio Schuck, legal coordinator at a
speciality chemicals company.
Brazil holds one of the richest biodiversities in the world and has for a long time been a
source of innovation for natural ingredients used in food, cosmetics and pharmaceutical
products. Despite this, much remains to be explored according to Werner Grau, of
Pinhiero Neto.
“There are currently a huge number of requests which would take years to be
approved, and that is where the new regulation aims to provide a better process
[...]Faster authorisation of procedures means a less expensive phase for research and
the development of new products,” he says.
Authorisation to access biodiversity for research and development has until now been
granted by a national council of genetic heritage. Under the new law, companies will
only have to register on an online database. “Both national companies and companies
located abroad associated with a national institution for scientific and technological
research, public or private, will benefit from this,” says Simone Paschoal Nogueira
and Marina Vieira Freire, of Siqueira Castro Advogados. “It replaces the long
authorisation process with a simple register, accelerating the procedure and eliminating
the bureaucracy of the previous system.”
According to Carlos Humaire, assistant professor of law at Univesidade Paulista and
former legal coordinator at Axalta, the new law is a result of pressure to reduce
bureaucracy for companies and the need to attract investment focusing on research
and innovation at a time when the country’s economy is facing challenges.
“It brings legal certainty and simplifies processes for companies,” he says, adding:
“Over 600 penalties for violations, worth over R$ 230 million in fines, have been issued
since 2005, so the fact is that clearer rules and reduced risks of fines and litigations
make research and development even more attractive in Brazil.”
The new law also sets new rules for sharing benefits with indigenous peoples when
research and development leads to a product, such as a drug, shampoo, energy drink,
or industrial enzyme.
According to the legislation, companies are required to deposit up to a maximum of 1
per cent of the revenue made from selling the final product into a fund to be used by
indigenous communities. “The funds will be managed by the Ministry of Environment,
and indigenous and traditional communities will have the right to participate in the
decisions about the allocation of the resources,” says Nogueira and Freire.
Small companies and suppliers will be exempt from sharing their profits due to their
lower production capability. For Juliana Kakimoto, regional legal manager at Givaudan,
this is an addition advantage. “We [Givaudan] are considered a medium sized
company, so we will no longer be required to pay a percentage of our income to the
local communities […] it has always been hard for us to get the required documents
from local communities and negotiate the percentage of benefit needed to be shared,
so we expect to foster our research with ingredients from Brazilian biodiversity, since
the process will be much simpler from now on,” she says.
While the new law has been praised by government agencies and the business
community, it has also been criticised for its bias towards companies and industry.
“The new law stipulates that the benefits from exploring these areas of research
commercially can be paid in cash or by "non-monetary" measures, like investments in
conservation projects for example, so many opponents have argued that it will be
difficult to quantify the real contributions made by companies,” Humaire point out.
Another controversial point is that fines previously issued to companies for biopiracy
and carrying out research without permission will be annulled.
Many indigenous groups, traditional farmers, and environmentalists have also argued
that they have been excluded from the debates so far. In a recent interview with Radio
Nacional da Amazonia, Maria Emilia Pacheco, President of Consea (National Council
on Food and Nutritional Security) said “More than 300 inquiries were conducted with
industries. The traditional communities had little chance to give their opinion. They
should have been heard since they are the true owners of the genetic wealth.”
Despite the criticisms, many in the legal community believe the law is a step up from
the previous rules.
“This law is a good start to cleaning up what was previously a bureaucratic mess,” says
Schuck. “As legal counsel, we still face challenges due to the whole environmental and
regulatory system in Brazil, which is slow and bureaucratic; however, this new law is
starting to simplify things and will encourage more business and research in Brazil that
will, in the long term, benefit everyone, including companies, communities and the
government.”