Food and ganja for thought
Just thinking about the right (or wrong) types of food make many people hungry. When ingested in whatever form, tetrahydrocannabinol (“THC”), which is the active ingredient in marijuana, cleverly fits into a group of receptors in the brain which controls the sensitivity of, among other things, the human appetite and thought processes. It is submitted that the average person has to do a little bit more than think about THC to get hungry (imaginations welcome). That being said, securing Jamaica’s food and its marijuana is something to give serious thought to, with particular contemplation to be given to the legal framework which surrounds both issues.
The understanding of national food security is that a state is seen as being food secure when there is sufficient food to sustain a steady expansion of food consumption and to offset fluctuations in production and prices. The cornerstones of food security are availability, access, utilization and stability. Probably the most important factors in the availability of food are the production techniques employed. More and more funding is being poured into the science of food to ensure that certain plant varieties are as efficient as possible in terms of yield and quality. Interestingly, although much attention is being paid to certain plant varieties, the variety of plants that are consumed around the world has drastically decreased over centuries.
The Food and Agriculture Organization of the United Nations estimates that humans have used over 10,000 species for food throughout history. However, only about 120 cultivated species constitute 90 per cent of food requirements and 4 species (maize, wheat, rice and potatoes) provide approximately 60 per cent of human dietary energy for the globe’s population. There have been multitudes of crops developed by farmers over thousands of years, however over 75 per cent of them have been lost in the past 100 years.
This paints a picture of a growing world population, more convinced than ever of the types of food that it wants or is forced to eat, with a myriad of countries trying to produce these crops more competitively than each other. This is international capitalism at its finest. Innovation will always be the sharp end of the sword in globally competitive markets. Innovation is the fruit of investment, and wise investments have an affinity towards seeking protection.
The protection that small farmers, large agricultural powerhouses, scientists, and all other parties involved in engineering new plant varieties are all vying for is the intellectual property rights which can be grounded in plant genetics. One of the first living things to be afforded such protection was actually a form of bacteria which is capable of breaking down crude oil. After a long legal battle the United States Supreme Court ruled in favour of an engineer employed to General Electric who was then able to own the patent to the microorganism. This particular bacterium was seen as crucial as it has the potential of severely lessening the environmental damage which takes place in oil spills.
Plant varieties may be patented in some jurisdictions once they meet the applicable requirements. Governments around the world have an inherent interest in ensuring that they have the best science and technology available to them, particularly when these tools play an important role in the food security of a nation. It comes as no surprise then that these governments have agreed to share this technology, and by extension share their intellectual property through the medium of a Treaty.
The International Treaty on Plant Genetic Resources for Food and Agriculture (“the Treaty”) came into force in June 2004. Today, 131 countries are signatories to the Treaty. Jamaica signed the Treaty in 2006 and in January 2013 the Senate passed the Bill short-titled “The Protection of Plant Genetic Resources for Food Act” which gives effect to the Government’s decision to enact legislation to facilitate the country’s compliance with the Treaty.
The philosophical underpinning of the Treaty is the principle that plant genetic resources are a heritage of humankind that should be made available without restriction to anyone. This covers not only traditional cultivars and wild species but also varieties developed by scientists in laboratories. The Treaty is the first of its kind to provide a legal framework that not only recognizes the need for conservation and sustainable use of plant genetic resources for food and agriculture, but also delineates a regime for access and benefit sharing, and in the process provides direct and indirect links to intellectual property right instruments.
The Treaty ensures that Jamaica will have access to, and must give, information surrounding plant genetics as it relates to 64 crops regardless of what intellectual property rights may have been appropriated. This is interesting because although Jamaica may have valuable information about certain plant genetics, we certainly do not have any intellectual property rights in plant genetics to worry about.
Jamaica’s Patent Act (1857) limits patentability to industrial design and therefore disallows organic matter from being patented. Unique strains of plants that may have been developed and bred in Jamaica, cannot be protected under Jamaican law. This in turn signals that Jamaica has more to gain than give in signing the Treaty. From a negotiation standpoint, Jamaica might be seen as being in an enviable position as she has more to learn than to lose. However, as we sit on the throne of Dionysius, Damocles’ sword dangles. As indicated by Senator Marlene Malahoo-Forte in the debate of the Bill, the supporting legislation falls short of what is provided for in the Treaty.
The shortcomings of the legislative infrastructure which surrounds plant genetics will also have the knock-on effect of dwarfing the true potential of a crop which does not find itself in the Treaty, that being marijuana. There has been much consultation and public discussion recently on the wide-scale legalization of marijuana, both for medical and recreational purposes in Jamaica. Many entrepreneurs have been lobbying for its decriminalization citing inherent benefits to the economy. Although marijuana has been proven to assist in the treatment of glaucoma, the short-sightedness of those aligning themselves to the formalization of the industry is blinding.
The truth of the matter is that if Jamaica is truly going to add long-term value to innovation in a marijuana industry, it cannot be done unless we have the legal infrastructure to own our strains of marijuana. For those serious about such a prospect, this can currently only be done through making such patent applications to overseas jurisdictions like the United States. This process can be facilitated through Jamaican law firms with intellectual property experience.
Scott Jones is an Associate at Myers Fletcher & Gordon and is a member of the firm’s Commercial Department. Scott may be contacted at scott.jones@mfg.com.jm or through www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.