PATENTS ON LIFE
The whole world in whose hands?

by Catharine Lo

Hawai'i has earned the dubious reputation as the world capital for developing genetically modified crops.

"In the past ten years or so, we have had here more than 2,000 field tests of experimental genetically-engineered crops in more than 6,000 locations around our small state," says Earthjustice attorney Paul Achitof. "And this is more than any place in the world."

When it comes to Hawaiian taro, genetic engineering is more than an agricultural or environmental issue.

"Taro is a sacred plant to us. It's believed to be a body form of the Hawaiian god Kane," says Ku Kahakalau, director of Kanu o Ka Aina New Century Public Charter School in Waimea.

The controversy has sparked ongoing action in the state legislature, and even the Hawai'i County Council recently weighted in. On January 8, the Council's Committee on Environmental Management passed two resolutions supporting bills currently in the state legislature. Senate Bill 958 S.D. 1 would "impose a ten-year moratorium on developing, testing, propagating, cultivating, growing and raising genetically improved taro in the State of Hawai'i." House Bill 1577 H.D.1 would prohibit the growing of genetically modified coffee for five years, while permitting research in an "environmentally secure facility." Both bills passed by a 7-0 vote. (Councilmembers Yagong and Higa were absent.)

The resolution is not binding; the council obviously can't compel the legislature to pass the two measures.

The underlying causes lay much deeper. Native Hawaiians, who historians have called the "most sophisticated horticulturalists in Polynesia," have cultivated more than 300 varieties of taro for the past thousand years. 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. In the early 1900s, Kane'ohe, La'ie, Kahalu'u, Manoa and Waikiki looked just like Hanalei: green storybook terraces of kalo lo'i.

As buildings went up, taro cultivation went down to an all-time low of 4.3 million tons in 2005 (a drop of 19 percent over the previous year). On Hawai'i Island, the value of the taro crop shrank from $443,000 to $142,000 between 2001 and 2005 (the most recent figures available). The 2005 crop was half of the previous year's-250,000 pounds versus 500,000 pounds in 2004. Some obvious culprits were heavy rains and pests: apple snails, pocket rot, leaf blight.

University of Hawai'i researchers sought ways to address those pest problems. They injected disease-resistant genes from rice into Chinese, Hawaiian and Samoan taro varieties, in attempts to create a genetically modified organism (GMO), but found 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. As a result of the conflict, UH declared a temporary moratorium on genetic experimentation with Hawaiian taro strains.

Back on the farm

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 require 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-GMOs, also called transgenic organisms.

These new foods are sold, unlabeled, to consumers. Corporations (and sometimes research institutions, such as UH) own patents on the seeds to the new foods, and license their use. Sometimes birds and bees carry these seeds to small farms. The corporations call that stealing, and they sue the small farms. More and more, the food we eat comes from the new corporate-owned seeds. The number of predominant GMO crops-canola, corn, soybeans, and cotton-covered 3.7 million acres in 1996 and 100 million acres in 2003.

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."

Second Mahele

Big companies have 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.

Ritte calls the bid to own Hawai'i's biodiversity the "second Great Mahele."

"They want to buy and sell, manipulate and own the mana," he 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.

"That's like saying, if I don't rape you, somebody else will, so let me rape you first," Ritte responds.

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.

Hawaiian studies professor Lilikala Kame'eleihiwa doesn't buy that argument. "But we didn't change the Hawaiian people. We attacked the disease," she says.

But genetic engineering is a major tool in attacking disease, as well, in both plants and people. 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. 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?

UH 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 claim to have 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 Hawai'i 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-so far has failed to pass. Senate Bill 958, which would impose a ten-year moratorium on GM taro growing or research, was introduced in January, 2007. It survived several committee votes, but was carried over to the 2008 legislative session.

Biopharming

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 must 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 to fight cholera, spinach carrying a rabies vaccine. They can be toxic to humans. The Union of Concerned Scientists shows Hawai'i is a hotbed for biopharming, with 40 previously approved pharma crops; the state is tied with Puerto Rico and grows more biopharm strains than any other state.

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."

Patent problems

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.

"The central problem is, are we going to have an economic or an ecological vision," says former USDA attorney and environmental activist Claire Hope Cummings. 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 noted.

"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," Cummings concluded.

Research or theft?

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. The convention 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, in areas under their jurisdiction. Applicants who are bioprospecting don't have to reveal their intent. Aside from 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 Hawai'i)."

In March 2006, UH trumpeted the discovery of a staph-fighting bacterium from a marine organism in Kane'ohe Bay on O'ahu. 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 samples...." If any of the biogenetic material proves to be commercially viable, UH receives royalties 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 approach even 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 March, 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. A bill to establish a "temporary commission to address issues of bioprospecting" (SB 151) was introduced in the last legislative session and carried over to 2008.

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 must learn the hard way that it's not.

Additional reporting by Alan D. McNarie.

Top of Page