The Rooibos Patents Nestlé Quietly Let Lapse

Here is a thing worth knowing before your next cup. In 2008 and 2009, a subsidiary of Nestlé filed patent applications covering the use of rooibos and honeybush, the two red-bush plants of the Cape, for skin, hair, and the calming of inflammation. It held no permit to do so, though South African law plainly required one. Today not a single one of those patents exists. And the part worth sitting with, the reassuring part, is that nobody had to win a courtroom to make them go away. They were simply left to expire.

That is not the shape most of these stories take. Here is how it actually happened, with nothing tidied up that ought to stay untidy.

Five applications, one priority date

The applicant was Nestec S.A., the arm of Nestlé that holds much of its research. All five applications shared a priority date of 9 June 2008, the earliest filing they could each later claim credit from. They were filed in June 2009 and published in the opening weeks of 2010, and you can still read their legal histories today on the public patent record.

Four of the five concerned skin and hair. Two claimed the use of rooibos or its extracts for cosmetic ends, two claimed the same for honeybush, and two of those four folded in prebiotics alongside the plant. The fifth, titled "Rooibos and inflammation," reached further, into the gut, into osteoarthritis, into rheumatoid arthritis. Together they tried to draw a fence of exclusive rights around uses of two plants that the Khoi and San peoples of the Cederberg had known and practised for generations, long before anyone thought to write them into a patent claim.

The permit that was never obtained

South Africa does not leave this to good manners. Its National Environmental Management: Biodiversity Act of 2004 requires a permit before anyone may do commercially minded research on, or patent the use of, an indigenous biological resource of the country. A permit is only granted once a benefit-sharing arrangement has been settled with the people whose knowledge is being drawn upon. It is the law's way of saying that old knowledge is not simply lying around free for the taking.

In 2010 two organisations, the NGO Natural Justice and the Swiss group then called the Berne Declaration, now Public Eye, laid the five applications side by side with that law and called what they saw "Rooibos Robbery." South Africa's own Department of Environmental Affairs confirmed to them the plain fact at the centre of it: Nestec had never been granted the permits. News24 carried the story under the headline "Nestlé slammed for bio-pirating," and the agricultural network GRAIN wrote it up too. The first fact of this story is a hard one. A very large company filed claims on uses of plants it had no confirmed right to claim, resting on knowledge that was never its to own.

What the company said, and what it did

Nestlé's answer at the time is where the story starts to sit oddly. The company said, in effect, that it had no intention of making commercial use of the plants. And yet, as Natural Justice noted while the coverage rolled on, it was at that same moment still hoping for the twenty-year protection the patents would bring. It had not withdrawn them. It denied the ambition while keeping the applications alive.

That contradiction is the hinge of the whole affair, so hold it a moment. A public denial of intent, paired with a private unwillingness to let go.

How it actually ended: not with a verdict, with a lapse

Now to the quiet part, the reason this one is worth telling at all.

The five patents were not struck down. No judge ruled against them. There was no grand renunciation, no press conference of apology, nothing you could point a camera at. What happened instead is the thing that happens to most patent applications in the world, the ordinary administrative death. Nestec simply stopped paying to push them forward.

The record shows it clearly. The international applications carry the status "Ceased." The European counterpart of the inflammation patent, EP2133088, reads "Withdrawn." None of the five ever entered the national phase in any single country, which is the step where an international filing becomes a real, enforceable patent somewhere. The patent office recorded formal notices of non-entry into the national phase, one for Germany dated 10 December 2010, another at the European Patent Office in 2011. The anticipated expiry was logged, and the files went still.

In plain terms, Nestec did not fight for these patents and did not dramatically surrender them either. It let them fall off the table. That is how a great many contested claims actually end, not with a headline verdict but with a fee left unpaid and a deadline allowed to pass while the world's attention moves elsewhere. No public apology has ever surfaced. The victory, if you want to call it that, was made of paperwork.

A later deal, over a different product

There is a second chapter, and here the record thins out.

A 2019 feature in the Daily Maverick describes Nestlé coming back some years later to ask consent for a different rooibos product it wanted to develop. According to that account, negotiations opened around 2014 between the company, the South African San Council, and the National Khoi and San Council, and a benefit-sharing agreement followed, with money owed on sales of that new product. One version of the story names the product as Red Espresso, but that identification does not hold up: Red Espresso is an independently owned South African company, founded years earlier by its own family founders, with no documented Nestlé connection, so this detail is likely a mix-up in the retelling rather than a fact worth repeating as settled.

The primary agreement itself was not locatable, only this later description, so the specific product and the numbers attached to it stay unconfirmed here. What is corroborated across more than one account is the shape of it: whatever Nestlé negotiated in 2014 concerned a fresh product it wanted to build, not the 2008 patents, which had already quietly lapsed years before. It was not a reckoning for the original claims. It was a separate conversation about something new.

Where this sits in the larger record

Keep these as separate events, and the picture stays clear. This Nestlé episode, running from 2008 to about 2014, came before and apart from the broader agreement the whole rooibos industry reached with the Khoi and San in 2019, the one that now sends a small share of every kilogram back to those communities and whose levy the Ministry has followed into 2026. It is a cousin, too, of the naming fights: the United States trademark on the word "rooibos" that a Dallas firm was forced to surrender in 2005, and the protected status the plant later won in the European Union. Different companies, different mechanisms, but the same patient question underneath all of them. Who gets to own the use of a plant that people knew long before any office existed to file it away.

So the next time you warm the pot for a cup before bed, you can hold both halves of this one at once. A claim was made that should not have been, and it came to nothing, not through triumph but through a deadline quietly missed.

Sources

1. Natural Justice, "Rooibos Robbery: Nestlé accused of biopirating South African genetic resources." https://naturaljustice.org/rooibos-robbery-nestle-accused-of-biopirating-south-african-genetic-resources/
2. Natural Justice, "Nestlé Coverage Continues." https://naturaljustice.org/nestle-coverage-continues/
3. Public Eye (formerly the Berne Declaration), "Roiboos-Robbery: Nestlé accused of biopirating against South African genetic resources." https://www.publiceye.ch/en/media-corner/press-releases/detail/roiboos-robbery-nestle-accused-of-biopirating-against-south-african-genetic-resources
4. News24, "Nestlé slammed for bio-pirating," 2010. https://www.news24.com/nestle-slammed-for-bio-pirating-20100527
5. GRAIN, "Rooibos robbery." https://grain.org/en/article/4213-rooibos-robbery
6. Google Patents, WO2010000579A2, "Use of rooibos or rooibos extracts for skin and hair" (legal status: Ceased; non-entry into national phase). https://patents.google.com/patent/WO2010000579A2/en
7. Google Patents, EP2133088A2, "Rooibos and inflammation" (legal status: Withdrawn). https://patents.google.com/patent/EP2133088A2/en
8. Kevin Bloom, "Plant matter: how rooibos brought justice to SA's indigenous," Daily Maverick, 1 November 2019. https://www.dailymaverick.co.za/article/2019-11-01-plant-matter-how-rooibos-brought-justice-to-sas-indigenous/
9. "The Rooibos Benefit Sharing Agreement, Breaking New Ground with Respect, Honesty, Fairness, and Care," PMC. https://pmc.ncbi.nlm.nih.gov/articles/PMC7065993/