The Nagoya Protocol and ABS for Botanical Sourcing

Botanical ingredients carry a legal history that many buyers never see. A drum of extract is not only a commodity; it is derived from a country's biodiversity, and since 2014 an international framework has governed how that biodiversity may be used and who shares in the value it creates. For anyone sourcing natural cosmetic actives, the Nagoya Protocol is no longer optional background reading.

What the Nagoya Protocol governs

The Nagoya Protocol was adopted in 2010 and entered into force in 2014 as a supplementary agreement to the Convention on Biological Diversity (CBD). It sets rules for access and benefit-sharing (ABS): access to genetic resources, and the fair and equitable sharing of the benefits arising from their utilisation. Crucially, it also extends to traditional knowledge associated with those resources — the practices of indigenous and local communities who have long used a plant. The underlying principle is sovereignty: a provider country decides the conditions under which its genetic resources may be accessed and used, and can expect a share of the resulting value.

PIC and MAT: the two building blocks

Two mechanisms sit at the heart of the system. Prior Informed Consent (PIC) is the authorisation a provider country grants before a genetic resource may be accessed. Mutually Agreed Terms (MAT) are the negotiated conditions attached to that access, including how monetary or non-monetary benefits will flow back — royalties, milestone payments, capacity-building, or shared research results. In practice PIC and MAT are secured together through the provider country's competent national authority, and the resulting paperwork is the foundation of any compliant sourcing file.

When sourcing counts as utilisation

The single most consequential distinction is between trade and utilisation. The Protocol's obligations attach to utilisation, defined as research and development on the genetic or biochemical composition of a genetic resource. Buying a finished commodity and reselling it unchanged is ordinarily trade and falls outside that definition. But cosmetic work rarely stops at trade: characterising an extract's actives, screening fractions for efficacy, or optimising a biochemical profile can all amount to utilisation. This is the grey area for cosmetic actives and extracts, and it means the trigger question is not "what did I buy?" but "what am I doing with it?"

Where the EU due-diligence rule bites

Within the European Union the Protocol is implemented by Regulation (EU) No 511/2014. It does not require a licence to trade; instead it imposes a due-diligence obligation on anyone who utilises in-scope genetic resources in the EU. You must seek, keep and transfer the information relevant to ABS: the country of origin, the date and place of access, and the PIC and MAT references. Records must be retained for twenty years after utilisation ends. Where the available information is insufficient, the obligation is to obtain a proper access permit or to stop using the resource. Scope matters here — material accessed before October 2014, or from countries that are not parties, may fall outside the Regulation, but that judgement should be made carefully.

The IRCC and the ABS Clearing-House

Compliance is far easier when a provider country has issued an Internationally Recognised Certificate of Compliance (IRCC). This certificate confirms that access was granted on the basis of PIC and MAT, and it is published on the ABS Clearing-House, the CBD's central online platform for exchanging ABS information. An IRCC is strong, portable evidence: if your supplier can hand you one, much of your due-diligence file is already built. Where no IRCC exists, you fall back on the underlying permits and agreements, which must be gathered and verified individually.

Practical due diligence for the buyer

A workable process is straightforward, if disciplined. Identify the country of origin of each botanical and confirm whether it is a party to the Protocol and what national ABS legislation applies. Request the ABS documentation — ideally an IRCC, otherwise the PIC and MAT — from your supplier, and pass those obligations down the supply chain in your contracts so that every tier is accountable. Keep contemporaneous records and store them well beyond the statutory period. Finally, revisit the trade-versus-utilisation question whenever your R&D activity changes, because a new development step can pull a previously out-of-scope ingredient into scope. Treated as routine sourcing hygiene rather than a legal afterthought, ABS compliance protects both the buyer and the biodiversity the ingredient came from.

This article is general information and does not constitute legal advice; assess your specific activities with qualified counsel.