Can You Patent Life-Saving Nutrition?

In Normandy, France, a company makes a nutritional supplement called Plumpynut that offers the best hope for the world’s starving children.

Invented in 1999 by French pediatric nutritional scientist Andre Briend, who is affiliated with the World Health Organization (WHO), and manufactured under the flagship French company Nutriset, which was formed in 1986 to address the nutritional problems of populations at risk, the product is manufactured under license from the company in several African countries where, in the past five years, it has transformed the treatment of malnourished children.

According to Doctors Without Borders’ chief nutritionist, Dr. Milton Tectonidis, the product is remarkable in that it delivers a mega-burst of essential nutrients like protein, calcium, vitamins and minerals from a sterile, single-serving packet that doesn’t require any refrigeration, cooking, or clean water.

The nutrition provided is so complete that, without hospitalization (or in fact any intervention except delivery of the pouches), starving children can be brought back from the brink in 21 days.

Inspired by Nutella, which was invented in the 1940s by Italian firm Ferrero as a nutritional spread that substituted hazelnuts for chocolate made scarce by the war, Plumpynut is made of peanut butter paste, vegetable oil, powdered milk, powdered sugar for energy, and supplemented with vitamins and minerals, the substance is, in the worlds of one Doctors Without Borders worker, “transformational”.

Because it contains a range of vitamins – A, B-complex , C, D, E, and K – and minerals calcium, phosphorus, potassium, magnesium, zinc, copper, iron, iodine, sodium, and selenium, in 92-gram packets that deliver 500 kilocalories of highly specialized nutrition, Plumpynut works where local food and even family food fails. This is because, past a specific stage of malnutrition, children are unable to digest “regular” food and need intense nutrition.

At about $1 per day, or 12 Euros a month, for a regimen of two packs per day for from two to four weeks, the nutrition is also affordable, even in very poor nations like Niger, where Plumpynut went through field trials during the food crisis in 2005. Equally as important, children – even those weakened by malnutrition – can feed themselves simply by squeezing the envelope. Plumpynut also comes in small tubs, like margarine.

In fact, according to Dr. Tectonidis, if the United States and the European Union were willing to spend part of their food-aid dollar on Plumpynut, more companies would start making it.

And there’s the rub, because Nutriset controls the U.S. patent 6346284 , and aside from its packaging licenses given to businesses in Malawi, Ethiopia, Niger, the Democratic Republic of the Congo (DR Congo), Mozambique, and the Dominican Republic, the product can’t be replicated, or even imitated, even by manufacturers who suggest they could produce the same substance at lower cost.

According to Nutriset officials, the patent is needed to insure that greedy manufacturers don’t flood the market with inferior product that could actually make the malnutrition problem in the third world worse (by, for example, substituting items like melamine, as the Chinese did).

Two U.S. nonprofits disagree, and in January said they would sue to challenge the patent, which Director Mike Mellace of the California-based Mama Cares Foundation describes as “so broad and generic that the patent has already been violated by a whole range of foodstuffs”.

The other nonprofit is Lubbock, Texas-based Breedlove Foods , whose CEO, David Fish, is working with Mama Cares and Dallas-based patent attorney Bob Chiaviello. Chiaviello’s firm, Fulbright & Jaworski, is working pro bono to overturn the patent and provide a landscape in which firms like Mama Cares and Breedlove can act to provide cheaper nutrition supplements, which both nonprofits charge Nutriset with preventing.

In fact, Nutriset, under its patent, now provides about 90 percent of the global supply of therapeutic foods. This, according to Mellace, outlines the monopoly that prevents his product, Re:vive (and similar supplements, also called RUTFs, or Ready-to-Use Therapeutic Foods) from competing.

To support his claim, Mellace notes that only about two million children worldwide are receiving Plumpynuts, even though fully 150 million suffer from some degree of malnutrition.

For Nutriset, the picture is very different. If the patent is overturned, officials say, Nutriset licensees, or partners, in Africa will not be able to compete in a global marketplace with better funded and better equipped American and European manufacturers. And that, in turn, would defeat the “nutritional autonomy” or food security provided by having the product made where it is most often used.

The problem with U.S. production, says Nutriset, is that funding for humanitarian food and nutritional supplement suppliers requires that almost all the aid money be spent on American-grown surplus crops. This means that third world peanut farmers would get short shrift in a global marketplace, further increasing poverty in those countries at highest risk of childhood malnutrition.

But the argument loses its potency when one considers the fact that the French company has just extended its franchising to a Rhode Island firm called Edesia, which will become the United States’ first RUTF production facility.

Mellace and Fish aren’t the French company’s only opponents. In November of 2009, Norwegian RUTF manufacturer Compact confronted Nutriset for blocking shipment of its product to Kenya, from whence Compact intended to ship to Somalia and the DR Congo. In the same year, the Indian government blocked aid agencies using Plumpynut to treat regional pockets of malnutrition. India’s claim? Plumpynut prevented the use of locally grown food.

The question remains; is Nutriset’s defense of its patent purely altruistic, aimed at providing nutritional sovereignty and preventing shoddy nutritional supplements, or is the consistent attack on companies in the same venue an effort to preserve its market base in a constantly changing and increasingly hungry world?

Article by Jeanne Roberts appearing courtesy Celsias.

photo: IRIN Photos