The following post was written by Alanna Shaikh. Alanna is a global health professional who blogs at UN Dispatch and Blood and Milk.
There is a fight brewing over Plumpy’nut, a fortified peanut butter product used to treat malnutrition in children. The company that invented Plumpy’nut has a patent on the product. Two American NGOs want to make their own version, but rather than pay a royalty fee, they are trying to break the patent. They have two main points. First, that Plumpy’nut as a product is too simple to be patentable, and second, that the patent is limiting access to the product.
Plumpy’nut is a bona fide miracle product. It’s easy for health care providers to administer, and it’s easy for patients to consume. Vacuum packed and shelf stable, it’s easier to store and transport than the fortified formulas that are otherwise used to treat malnutrition. It doesn’t require access to clean water like the formula powders do. And children love it and can eat it on their own, without parental help. Using Plumpy’nut instead of traditional F100 or F75 formulas increases cure rates to levels that have never consistently been seen before. It’s not surprising, therefore, that its patent has caused a lot of resentment.
Nutriset, the French company that invented Plumpy’nut, argues that the patent is not about profit. They claim that it is needed to protect the quality of the peanut paste. They were quoted in the Associated Press as saying “The limits let the company maintain quality while licensing production in the developing world – helping alleviate hunger and create jobs…” Their commitment, they state, is to “nutritional autonomy.” Letting products flood the global market would keep countries from being able to establish their own production. And it’s true that their field operation has helped several countries set up factories to produce Plumpy’nut. Lastly, Nutriset states that according to UNICEF, worldwide production capacity for Plumpy’nut is already double the existing demand.
It’s too easy to frame this as business versus humanitarianism. The Plumpy’nut patent is not global, and Nutriset actively encourages the production of Plumpy’nut in the developing world. Flooding the market with cheap American-made products would discourage countries from developing their own production; it would also help malnourished children by improving access to peanut paste.
The media coverage seems to missing the third side of this story: the economic view of the lawsuit. From that perspective, both sides have some major flaws in their arguments. Where is the incentive to develop products for poor people if there is no profit in it? We want the private sector to work to meet the needs of the poor. If products that do that can’t be patented for humanitarian reasons, who will bother to develop them? And why exactly do we care if countries can produce their own Plumpy’nut? What is the value of “nutritional autonomy,” anyway?
That makes me wonder if there is a solution to be found by economists. Could we have advance market commitments for peanut butter?
22 Comments
As a patent attorney, let me be first to admit that the patent system has many flaws. However, in this case the patent system seems to be doing what it is intended to do. The inventors have created something which is very useful and which no-one had done before, and in exchange they have been granted a short-term monopoly on making and selling the invention.
It might be an abuse of the monopoly if the patent owner failed to meet reasonable demand for their product, but that does not seem to be the case.
I’m guessing that the product is being paid for by aid money, not the ultimate recipients, so the moral argument against the patent seems fairly weak.
Further information: the invention is the subject of French Patent 2771259, US Patent 6346284, European Patent 1032280 (validated in Germany, Denmark and Spain), and Canadian Patent 2312025. It was also the subject of applications in the ARIPO (English-speaking African countries) and OAPI (French-speaking African countries) regions, but the status of those applications is not readily available online.
Interesting post – I didn’t know of this product – useful links too.
Out of interest, have there ever been allergic reactions to this product? As a parent, in the west there seems to be either a (thus far) unexplained increase in allergic reactions (e.g. anaphylactic shock) to peanut butter in children, Or more kids have access to peanut butter than before making it appear that allergies are on the rise….
In any case the fear towards peanut butter is getting a tad absurd (I’m not allowed to give my children anything nut based – cookies, sandwiches, breads – in their UK pre-school on the presumption another child may be, or will develop, allergic reactions..even when none of the children currently are allergic). For those who are allergic to peanut based products – I have, of course, every respect for how dangerous it can be…but wonder sometimes if peanut-based allergies can really be rising on the scale they are made out to be in UK schools etc, and if this is refelected in other countries (not the least indonesia where peanut is a staple food product).
Do you know whether such allergies are being seen in areas where plumpy’nut is used?
I’m curious to know about how the American producers would procure the peanuts/peanut butter for the product. The last time I looked into the peanut industry in the US, it was HIGHLY restrictive to protect a handful of US peanut growers. Does anyone know what the situation is now? What effect would that have on the outcomes of the American groups entering the market?
Nice that a patent attorney states that the patent system has many flaws. Perhaps he and his learned colleagues should stop filing thousands of junk patent applications. That would deal with the greatest flaw.
The idea for an NGO to fight any patent instead of paying royalties is called : PUBLICITY
The NGO’s need press coverage, publicity, and what could be better than getting heroic press coverage for battling multinational companies who appear to harm poor starving kids?
Nobody will ever mind or look at the merit of the case, as the NGO has already achieved its goal.
Furthermore, Nutriset filed more patents to cover their invention & product, for instance FR2815825 , much more detailed claims, hence more limited and applied for in the same countries.
Therefore, nothing more than a bogus battle in search of publicity for themselves.
Even if valid OAPI & ARIPO patents exist, they are not enforced in Africa – some countries don’t even publish or process the national patents, so they are in fact non-existent in those countries. Therefore, there would be no royalties due anyway.
Who’s gonna collect them in Darfur?
Not to mention that countries can force licensing in case of epidemics, famines, etc.
If access if the problem, it should be possible for other producers and aid agencies to purchase the patent rights from the original developer. If they can’t put together a sum big enough to make that offer attractive, maybe it’s better off being kept by Nutriset. It would be a mistake to assume that because they have peanut based nutritional suppliments cornered that there is no other way to deliver nutrients to the developing world. Why don’t they spend their effort coming up with fortified chocolate or some baked good or something like that. Large profit margins attract entry, and that is true even when entry may be limited by patent rights.
I’ve been following this legal fight for
over a year as the dialogue has gone from simple property rights to
entrenched moral posturing. See yesterday’s NYT.
The product is peanut butter fortified with vitamins, and plumpy nut
is gaining huge name recognition, almost a generic in a very short
time. Fighting to preserve what amounts to no-compete status on
purchase orders from the UN and others, plumpy has been suing anybody
who makes anything like this peanut butter which leads to counter
suits from groups that would like to make and sell the product to
donors and from still others who want to buy it via competitive bids
for a lower price. If it is a proprietary recipe, then those things
cannot happen, price remains high, and supply remains limited.
On property law in the US, and correct me if I am wrong, one cannot patent a recipe–
hence the secret recipes of Coca Cola and KFC– but in other
countries it seems you can. Plumpy is arguing that the French patent is transferable worldwide. Those who want refuge from potential suits and their costs
disparage plumpy as profiteering charlatans.
Meanwhile, other organizations are making this type of RUTF (ready to use theraputic food) at no profit. Plumpy wants to enforce the patent to force them to buy their vitamin powder as specified in the patented recipe.
Interesting story; did an initial TEE scan of Breedlove Foods (http://www.breedlove.org) and Mama Cares Foundation (http://www.mamacares.org).
T – Neither of the websites easily provide a description of the governance structure, registration and biographies of the SMT and Board of Directors. Breedlove has names but few bios.
E – Neither easily provide audited financial statements available for download.
E – Neither easily provide any neutral demonstration of programme effectiveness.
This type of scan does not make any evaluation of the organisations reviewed. Rather it looks at the web sites on which, due to the very low costs involved, at minimum T and the first E information can be easily included. Non-inclusion therefore indicates choice rather than cost.
For any interested donors, in the presence of a marketplace with similar organisations and missions, conducting further due diligence on Breedlove and Mama Cares will cost more than with those that already have the aforementioned type of information easily available via a web site.
That will be $500 please.
@avam From what I have read – Nutriset has looked at this – there are almost no peanut allergies in sub-Saharan Africa.
@jon You can patent a recipe in the US but Coca Cola has not because to patent you have to publish the recipe
With regard to Coca-Colan if they published the recipe it would become public after a few years.
The truth is patents have become a massive scam.
@geckonomist: Thank you for your helpful suggestion about how I can improve the quality of my patent applications.
While it is rare for companies to be interested in filing OAPI and ARIPO patent applications, and it is extremely rare for patentees to want to take enforcement proceedings, “justice” is usually available to companies that have sufficient means to seek it, just as is the case in the US. For example, Pfizer successfully enforced an ARIPO patent in Kenya in 2006. With regard to your Darfur example, I suspect that a Sudanese court would be quite willing to enforce an ARIPO patent against a US aid agency.
1. Nutritional autonomy reeks of nutritional autarky, which isn’t good for anybody.
2. Although neoliberals today generally champion intellectual property rights and libertarians generally agree with them, it would be a mistake to view IP rights as wholly a market creation. They are the state trying to assign property rights-like values to intangible objects, and that’s something that not all libertarians agree with. I’d recommend reading Against Intellectual Monopoly for an introduction to IP bashing. (Thankfully the authors have put their money where their mouth is and have the whole book available free online in PDFs.)
Regardling whether allergies to peanuts have been reported…..apparently not. Actually, in Israel, a peanut-based food called Bamba is used as a weaning food…. and peanut allergies are extremely rare.
There have even been some arguments that delaying giving children various foods can actually increase the risk of allergies.
http://www.isrealli.org/british-american-and-israeli-study-draws-a-nutty-conclusion/
Peanut is one of the most healthy fruit. It also helps in beauty essentials.
re Alanna: “@avam From what I have read – Nutriset has looked at this – there are almost no peanut allergies in sub-Saharan Africa.”
Thanks for your response – that’s really interesting….esp given the supposed high rates in the west.
re: Charlotte – thanks for your response as well. The link you posted is quite illuminating – esp with the UK figures it lists.
Living in the UK it’s noticeable how frightened people (esp new parents) are of giving their kids anything nut based..this is encouraged by the health system (midwives, health workers etc), which teach pregnant women than even using a body cream – that may have some nut-based product in it – during pregnancy could drastically increase a nut allergy in the unborn child. As I’m half north-american (and therefore grew up on peanut butter!) I have often wondered if the strict aversion to peanut-based products is, in fact, the problem. The link seems to support this view.
This is a disappointing blog post – it is thin on detail and facts. If you’re going to address an issue, actually discuss it…
For example, it would have been helpful to mention that RUTF products are designed for acutely malnourished children…. in other words, children on the verge of death. While I am a die in the wool Capitalist, do you really want to patent emergency relief materials? Should we also patent CPR techinques and training?
It also would have been good to mention, UNICEF’s “unique relationship” with Nutriset.
Bring back Easterly!
Oh Plump’nut, what a Catch-22.
When I was working with health centers in Rwanda, we had an really interesting situation related to Plumpy’nut.
As the article above states, Plumpy’nut is very effective for combating malnourishment. However, in the area of Rwanda that I was working it was not effective at addressing the root cause of malnourishment.
Malnourishment is a common symptom of two different causes:
1. Lack of food (no food to eat)
2. Ignorance about proper nutrition (eating the wrong food)
The first cause is hard to address with a healthcare/education based intervention – it’s an economic problem.
However, the second cause is treatable through healthcare/education interventions and, fortunately, much more common in the area of Rwanda I worked.
There are many patients that actually have access to food, but are not eating the right foods (leafy greens, legumes, etc). Simply put, a potato is starchy-sweet, easy to cultivate, and leaves you feeling full. For too many of our patients, this was the go-to option instead of a varied diet.
The problem with Plumpy-Nut is that it addresses the symptom – malnourishment – and not the causes.
We had many patients that came to the health center with malnourishment. Plumpy-Nut helped these patients get better quickly. Possibly too quickly, because their underlying habits did not change and in a few weeks or months they were back with malnourishment again.
Perhaps it is unfair to blame the issue on Plumpy-Nut itself. There is certainly a role for the product in a robust nutrition education program. However, too often these “miracle products” represent an easy, cheap way to make a short-term visible impact. The invisible impacts – deep programmatic, educational interventions – tend to be much more sustainably effective.
‘Plumpy nut’ is actually a couple of different products (I’m a little sketchy on the details). There’s the RUTF which is for acutely malnourished hospitalised kids; which has been evaluated in trials as a “medicine” where I would imagine the end-point would have been mortality rates. But Nutriset also make at least one other plumpy nut product for community ‘treatment’ of chronic moderate malnutrition, where you would use stunting as an endpoint for evaluation. I know that the patent on that type of plumpy nut is more contentious… because it’s not strictly a medicinal product, and really is more like just peanut butter with some extra nutrients and it’s not new that many groups think that it’s so basic so as not be a patent-able.
First, it is only useful, if it is readily available. Despite Nutrisets claims, the supply chain is highly unrealiable.
Also, Nutriset essentially ripped off Mark Manary’s Peanut Butter Project (Malawi), a peanut based paste used for malnutrition. Sound familiar?
For more information:
http://news.wustl.edu/news/Pages/2708.aspx
Third, you assume the patent is valid…
I would have thought that you, as a health expert, would want more suppliers and providers in the marketplace, not less.
At least, economists know the benefits of market competition.
@Keith:
Seems that Manary borrowed his idea from them not the other way around. Nurtiset’s patent claims a priority date of 1997, manary got started in 2001.
And then there is this from the article:
“Health-care workers in Malawi believed starving children needed to take nutritious food home from the hospital. After consulting a French nutritionist who was developing peanut butter recipes, Manary launched the Peanut Butter Project in 2001.”
“it would also help malnourished children by improving access to peanut paste.”
For a while. Until the NGO providing the food loses interest and redirects its resources elsewhere.
The point is to give the locals the capacity to produce their own food. A for-profit company has an incentive to do this. A typical NGO has no such financial incentives. This often leads them to operate in ways that are insensitive or even antagonistic toward local businesses and regional economies, both of which must be healthy to sustain the population long after the NGOs pack up and leave.
Another angle: consider the situation with oral rehydration therapy. Believe it or not, for something so simple, it took a fair amount of research to figure out the right formula. And yet the folks who did that, did not choose to patent the product. Now it is both sold and made locally at home. There is no problem with access or quality of the product. A patent was not needed to protect either. I
@Keith: in fact, many emergency relief materials are patented. Just sayin’.
Re allergies: as several people already mentioned, allergic reactions seem to be rare. Nevertheless, it is seen as best practice to monitor patients at the start of the use of peanut-based RUTF and to have stand-by treatment (F-100/F-75 and similar) available for the rare cases in which they do occur.
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