In 1999 the NBI entered into an agreement with the Ball Horticultural Company of Chicago, USA with the aim of fairly and sustainably developing ornamental plants for the international horticultural market. This was the first agreement of its kind in the world. Read on to find out more about this fascinating venture…

History
For centuries plant hunters and collectors have been visiting the shores of South Africa to marvel at the astonishing plant diversity that South Africa has been blessed with. For centuries these plant collectors have been taking samples of these magnificent wonders back to be grown in glasshouses and conservatories in all corners of the globe. Some of the most successful of ALL ornamentally grown plants around the world today originated in South Africa and these include the likes of Geranium/Pelargonium, Gladiolus, Freesia, Gerbera, Osteospermum, Nemesia, Gazania and Bacopa to name but a few.

At the 1992 Earth Summit in Rio de Janeiro, world leaders agreed on a comprehensive strategy for "sustainable development" and the Convention on Biological Diversity (CBD) was proposed and ratified by 143 Countries. The aim of the CBD was to prevent illegal exploitation of one countries genetic resources by another country without the fair and equitable sharing of the benefits from the use of these resources. In light of this, the (then) NBI decided that it was time to put a stop to the free plunder of South Africa’s ornamental plants and decided to initiate it’s own ornamental crop development programme and so make sure that there, rightly, was at least some fair return of profits from the global sale of these plants. The NBI was, however, not sufficiently equipped with the research, breeding, marketing, large-scale propagation and distribution abilities required to effectively implement this project, so they sought out a partner in one of the largest and most reputable commercial horticultural firms in the world, the BALL Horticultural Company.
After close discussion and negotiation between the NBI and Ball, a formal SANBI-Ball Agreement was signed in August of 1999.

What is the SANBI-Ball Agreement?
In essence, the agreement between the SANBI and Ball allows Ball the opportunity to research, trial and evaluate the ornamental potential of a fraction of selected wild plant species from the SANBI’s living plant collections housed at the 8 National Botanical Gardens around South Africa as well as a small sample of wild plants collected for this purpose by the gardens. If one or a number of these plants trialed displays some ornamental potential, Ball may develop (through a process of breeding and selection) an ornamental plant product with the aim of commercialisation and, with the consent of the SANBI, introduction into the international horticultural marketplace. This will take place in a manner that ensures fair and equitable sharing of benefits (profits) and a transfer of technological skills to South Africa in the process. The plants that Ball might commercialise are strictly for ornamental purposes only. The SANBI-Ball Agreement is the first of its kind, setting a new precedent for ethical bioprospecting in the field of ornamental horticulture. Profits generated by the Agreement will be placed in an ear-marked account administered by the SANBI Board to be used for the protection and conservation of our critically endangered flora.

Who is the Ball Horticultural Company?
The Ball Horticultural Company is a family-owned company that is more than a century old, with headquarters just outside of Chicago, USA. Ball specialises in the bedding plant and cut flower markets and have large-scale seed and plug production plants for supply to the majority of North America. They also have a team of highly qualified plant breeders that are actively researching and developing new ornamental plant varieties. For more information click here: Ball Horticultural Company

What is bioprospecting?
Bioprospecting can be defined as the search for economically valuable genetic and biochemical resources from living organisms. Although the term is most commonly associated with the hunt for novel molecules with medical and industrial potential, it can also be extended to the search for plants with ornamental horticultural/floricultural potential. The bioprospecting issue is often surrounded by controversy. It can often be confused with 'biopiracy', the plundering of other countries' genetic resources, without fair and equitable compensation. Bioprospecting, however, is completely legal and a potential source of income for developing countries who are not in a position to competitively develop the commercial potential of their own genetic resources.

Will this agreement impact the use of South African plant material for pharmaceutical uses?
The agreement specifically prohibits Ball Horticultural from developing South African products for any use other than ornamental horticulture. It also prohibits Ball from disseminating the plant material to any other person or company for any purpose at all.

What is the Convention on Biological Diversity?
The United Nations Convention on Biological Diversity (CBD) is the first multilateral agreement to address the issue of Bioprospecting directly. It recognizes a country's sovereignty over its genetic resources, the right to restrict access to these resources, and determine mutually acceptable terms under which access is granted. It places the responsibility for taking 'appropriate measures' aimed at securing fair and equitable bioprospecting activities on governments (particularly those supplying genetic resources) and the parties involved in negotiating the agreements. It also recognizes the role of 'stakeholders' - NGOs, academic and research institutes, indigenous peoples, local communities, business and donors - and encourages their participation. For more information click here: Convention on Biological Diversity

Is a company based in the United States bound to adhere to the Convention on Biological Diversity?
The agreement between Ball Horticultural and South Africa is a legally binding contract. This agreement is subject to South African and U.S. laws, regardless of the status of the Convention on Biological Diversity. Royalty payments to South Africa are determined and required by the contract, not by the Convention.

What legislation is there in South Africa regarding access to genetic resources?
In 2004, the Department of Environmental Affairs and Tourism (DEAT) passed the South African National Environmental Management: Biodiversity Act (NEMBA). This act in part aims at more closely controlling both bona fide research and bioprospecting activities within the country. Official proposals of the research and/or bioprospecting activity must be submitted and the relevant permits may then be granted before these activities can be carried out. In the event of bioprospecting, Material Transfer Agreements and Benefit Sharing Agreements need to be signed by the relevant steakholders. The implementation of the Act, however, will probably only come into effect on the 1st of June 2008 after the Regulations have been adopted and passed. To view the Act, download the PDF here: The Biodiversity Act

Hopefully this new legislation will seriously curb biopiracy in South Africa and will effectively implement the of return royalties where they are due.

What right does SANBI have to enter into such agreements, and what is the SANBI doing?
The SANBI has a parliamentary mandate to "investigate and utilize, and promote the utilization of, the economic potential of indigenous plants". When South Africa ratified the CBD, the (then) NBI had already begun revising its policy regarding access to plants housed in its living collections. Access to these plants by foreign individuals was restricted, but still made possible via various legal agreements and for bona fide research. At the same time the NBI investigated local opportunities to cooperatively develop and exploit the ornamental potential of these plants. After several years it became clear that local capacity to competitively develop products for commercial exploitation in the international marketplace is limited. Problems associated with the production and marketing of products in the international ornamental horticulture industry also present a major challenge. To address these problems and challenges, the NBI developed the NBI-Ball Agreement.

How does this agreement impact South African floriculture and other industries?
This agreement will be positive for all of South Africa. Ball is one of the premier horticultural companies in the world and has done what few other companies have been willing to do: invest capital as well as time and effort, to continue to develop the South African marketplace. Ball Horticulture is the first and only ornamental horticulture company to invest in South Africa by partnering with Straathof – a local seed company, now Ball-Straathof. This is concrete evidence of the long-term investment Ball is making in South Africa.

CLARIFICATION OF POTENTIAL CONFUSION

Has the SANBI "sold the rights to South Africa's floral heritage?"
No. No-one can sell the exclusive commercial rights to a species or group of plants, or plants that are in their wild form. As such, the SANBI-Ball Agreement will not alter any rights that people have to access the plants in question. The SANBI has not sold Ball any of the plants that it has supplied in terms of the Agreement, it has granted Ball the right to evaluate, market and distribute these plants and commercial varieties that Ball develop from them. The SANBI will restrict access to some of the plants in its collections, but this does not mean that anyone else is prevented from obtaining access to these plants from other sources, or from marketing these plants or products that they develop from them. They will, however, be required by law to apply for valid bioprospecting permits to do so.

Has the SANBI "sold off the patent rights to huge sections of South Africa's floral kingdom"
No. Intellectual Property Rights like Patents and Plant Breeders Rights are only applicable to plants that are distinctly different from those found in nature, or those already in the public domain. For the most part, the plants that make up the SANBI's living collections are representative samples of what is to be found in nature, or 'wild' plants. Intellectual Property Rights do not apply to such plants, and only apply to a few plants in the SANBI's collections, which have been developed to be distinctly different from the original plants collected in nature. Ball will not sell "huge sections of South Africa's flora kingdom" either, Ball will concentrate on a fraction of South African plants that MAY be suitable for commercial introduction and the development of commercial cultivars.

Was the Agreement "signed behind closed doors"?
No. Prior to the signing of the Agreement, the (then) NBI consulted with a wide range of stakeholders, both directly, and via stakeholder meetings in Cape Town and Pretoria. These stakeholders included NGO's, academics, institutions, government departments, individuals and provincial conservation bodies. The NBI also released a press release to South African newspapers several months prior to the signing of the Agreement, thereby informing the public of its intention to enter into the Agreement with Ball. Articles like "Reclaiming the green gold", which appeared in the Sunday Times Lifestyle July 4 1999, are testimony to the NBI's transparency with regard to the Agreement. See also the detailed review of the Ball Agreement published by Henne and Fakir in: "NBI-Ball Agreement: A new phase in bioprospecting?" Biotechnology and Development Monitor, No. 39, p. 18-21. (1999).

Will Ball get "90% of the royalty profits"?
No. If a plant supplied by the SANBI to Ball is commercialized then the royalty profits will almost entirely come back to South Africa. If Ball develop the product to be more suitable, then depending on the methods used, SANBI and Ball share the royalty in a way that provides increasing returns to Ball. This is only fair, since product research and development can be very expensive, and Ball will be carrying this risk as well as providing their expertise.

Will Ball be given "ownership" of the plants?
No. Ball will not own the plants supplied to them from the SANBI's collections. Ball will have shared ownership on plants collected using the research funds provided by them in terms of the agreement, and will own the new plants that they develop. Other than the plants purely developed by Ball, this ownership will not prevent any body else from accessing the same or similar plants. Some of the plants that Ball develop and market may be protected with intellectual property rights, but these will not prevent people from accessing them, just from propagating and selling them.

Is it true that the "NBI-Ball Agreement "effectively kills off the potential of local companies to develop the floriculture export industry"?
No, far from it. The Agreement does not impinge in the least bit on the ability of local companies from developing the local floriculture export industry. If anything, the project should stimulate local companies to develop their markets further. To date, Ball have hosted 8 previously disadvantaged interns from South Africa in their horticultural internship programme in Chicago over the course of the agreement, and have also presented seminars to the local nursery industry on topics to do with international horticulture. If anything, the Agreement will provide an incentive for access control and a mechanism to boost local capacity and develop the local floriculture export industry. This after all is one of the main aims of the Agreement.

20 November 2007