Pick up a botanical supplement and read the part of the label that gestures at history. Traditionally used. Used for centuries. Ancient wisdom. Then ask a narrower question. What did the company have to do, legally, before printing that?
In the United States, in most cases, nothing.
That is a description, not a complaint. International rules on consent and benefit-sharing for traditional plant knowledge exist, and they are detailed. The United States sits outside the main one. A plant sourced from a country that is inside it may still be governed by that country’s law, and that is the part most coverage misses.
What the Declaration says about plant knowledge
The United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples on 13 September 2007. The Advisory Council on Historic Preservation, a US federal agency, records the vote as 143 in favor, 4 opposed, 11 abstentions and 34 not participating, with the United States among the four opposed.
The consent provisions people usually cite are Articles 10, 11, 19, 28, 29 and 32, and they are mostly about land. Article 10 bars forcible removal and conditions any relocation on free, prior and informed consent, compensation and, where possible, an option to return. Article 19 requires states to consult and cooperate in good faith with the peoples concerned, through those peoples’ own representative institutions, before adopting measures that affect them. Article 32 covers the right to set development priorities for lands and resources, and consultation before a project is approved. Articles 11, 28 and 29 cover cultural traditions, redress for lands and resources taken without consent, and protection of the environment.
Two other articles matter most for a bottle on a shelf, and they are the two most often left out. Article 24 covers the right to traditional medicines and health practices, including conservation of vital medicinal plants. Article 31 names the subject directly. Its first paragraph begins “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage”, and runs on through traditional knowledge, genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, and intellectual property over them.
Any piece about plant sourcing that cites 10, 11, 19, 28, 29 and 32 and leaves out 24 and 31 is citing the wrong articles.
Then there is the document’s status. It is a declaration, not a treaty, and President Obama announced US support on 16 December 2010 at the second White House Tribal Nations Conference. The Advisory Council on Historic Preservation states that it is not legally binding and calls it an inspirational instrument with moral and political force.
One precision is worth carrying forward. Testifying to the Senate Committee on Indian Affairs on 9 June 2011, Donald Laverdure, then Principal Deputy Assistant Secretary for Indian Affairs at Interior, called the Declaration a not legally binding, aspirational instrument and framed US practice in terms of consultation and cooperation under Executive Order 13175. The phrase “free, prior and informed consent” does not appear in that testimony, or on the Advisory Council’s background page. The Declaration speaks about consent. The US executive branch has spoken about consultation. Those are different standards, and both US documents are now over fifteen years old.
The treaty the United States has never ratified
The Convention on Biological Diversity is the international treaty governing access to genetic resources, a category that includes plants. A Congressional Research Service product, IN12073, dated 9 January 2023, states that the United States is the only UN member state not to have ratified it. The treaty was signed and submitted to the Senate in 1993. Non-party status, the product notes, limits the ability to negotiate treaty language and prevents the United States from voting on decisions.
Hanging off that treaty is the benefit-sharing instrument: the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Use. It is a supplementary agreement to the Convention, adopted on 29 October 2010 in Nagoya, Japan, and in force since 12 October 2014.
The Convention Secretariat describes what parties must do. Set up clear, non-arbitrary access measures. Establish rules for prior informed consent and mutually agreed terms, and issue a permit when access is granted. Provide for fair and equitable benefit sharing. Where traditional knowledge held by Indigenous and local communities is involved, take measures so those communities’ prior informed consent is obtained and benefits are shared with them, taking account of community laws and customary use.
So the main international instrument on consent and benefit-sharing for traditional plant knowledge is an add-on to a treaty the United States has not joined.
Why a US company can still be bound by rules the US never signed
This part runs opposite to how people usually assume. The Protocol operates through the provider country’s own law. The structure in the Secretariat’s description is plain: the party where the resource sits writes the access rules, runs the consent procedure and issues the permit. Permission to collect a plant, or to work from a community’s knowledge about it, is granted or refused there. A US company sourcing from a Nagoya party is therefore dealing with that country’s access law, whatever the United States has or has not ratified. Peru is one such country, and the peer-reviewed work below describes how its permitting system runs. The provider country’s rules apply on its own territory to whoever shows up.
What US non-party status removes is the compliance half. Treaty obligations bind parties. Because the United States is not one, there is no Nagoya checkpoint here asking a domestic user to produce an internationally recognized certificate of compliance, and no mechanism built from the Protocol for acting against a US firm that used material obtained without the provider country’s consent. That follows from the Protocol’s structure rather than from any agency statement, and it is an inference, not a quotation.
How well the provider side works
Not very, according to the people studying it.
Friso and colleagues, in the Journal of Ethnopharmacology in 2020, examined Peru, whose Amazon region holds more than 1,000 plant species with commercial potential and whose national sales of natural products from medicinal and aromatic plants have exceeded $400 million a year. Peru had issued 16 internationally recognized certificates of compliance through two national authorities. The authors describe an application process that is not sufficiently clear and a wide gap between that formal system and what happens informally outside it.
A wider study lands in the same place. Heinrich and colleagues, in Frontiers in Pharmacology in 2020, examined Chile, Colombia, Guatemala, Mexico, Panama and Peru, found implementation varying and institutional infrastructure weak, and concluded that the benefits the two instruments envisioned remain unfulfilled for everyone involved, local communities included.
Sixteen certificates is the number to hold onto. It is not a system a consumer can lean on.
The 2024 patent treaty that is not in force
The newest instrument is about patents. Its correct name is the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, and WIPO member states adopted it on 24 May 2024, closing a diplomatic conference that ran from 13 to 24 May.
What it would require is a disclosure. Where a claimed invention is based on genetic resources, the applicant must disclose the country of origin. Where it is based on associated traditional knowledge, the applicant must disclose the Indigenous Peoples or local community that provided it. If that is unknown, disclose the source. If neither is known, say so. USPTO explains the threshold: the material must have been necessary for the invention, and the invention must depend on its specific properties.
Two limits matter. WIPO states that patent offices must provide certain guidance but are not required to verify the disclosures they receive. And the treaty is not in force. It takes effect three months after fifteen ratifications or accessions, and WIPO’s status table dated 8 July 2026 lists 44 signatory states and only four ratifications or accessions: Albania, Malawi, Peru and Uganda.
The United States is not on that list. The signature window ran one year from adoption and closed on 23 May 2025. The USPTO published a Federal Register notice on 17 January 2025 asking whether the United States should sign and implement the treaty, closed comments on 18 March 2025 and held a public hearing on 29 April 2025. Its page reports no outcome.
One wrinkle cuts the other way. USPTO states that once the treaty is in force the duty applies to anyone filing in a contracting party’s jurisdiction, including applicants from countries that never ratified.
Two cases with documented endings
Advocacy retellings of biopiracy cases tend to stop before the ending. These two have sources that do not.
Hoodia and the San. WIPO’s own case study, last updated 31 August 2010, records that the South African Council for Scientific and Industrial Research isolated a molecule it called P57 from Hoodia gordonii, a plant the San peoples of the Kalahari used for appetite suppression. CSIR filed a South African application in 1997 and a PCT application in 1998, and was granted a US patent in 1999. It licensed first to a multinational pharmaceutical company, then to a second firm working with a multinational food company. The San had not been told of the patent plans. A memorandum of understanding followed in February 2002 and a benefit-sharing agreement in March 2003, giving San communities 8 percent of the milestone payments CSIR receives from the licensee and 6 percent of royalties CSIR receives on sales.
Read those percentages carefully. They are shares of CSIR’s receipts, not of product revenue. WIPO estimates the milestones at US$1 to US$1.5 million in total, and records that the San Hoodia Benefit Sharing Trust first met in April 2005 and received a first payment of 500,000 South African rand. It also records that as of late 2010 no licensed product had been commercialized, while unlicensed hoodia products had been on the market since 2003. That page has not been updated since 2010, so nothing later rests on it.
Maca. Heinrich and Hesketh, in Phytomedicine in 2018, reviewed the twenty-five years following the Convention and used Lepidium meyenii, the Andean crop sold as maca, to work through the patent position. Their assessment is that in that case equitable benefit sharing could not be achieved. The same review names quinine and rubber as earlier examples of exploitative use of biodiversity. The paper identifies a species and a country. It does not attribute the knowledge to a single named people, and neither will this article.
Tribal nations, park land, and a rule still waiting on signatures
Inside the United States the picture changes, because federally recognized tribes are governments, and federal agencies consult with them under Executive Order 13175. The clearest example involving plants is a National Park Service rule: “Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes,” published at 81 FR 45024 on 12 July 2016 and effective 11 August 2016. It adds 36 CFR 2.6 and revises 36 CFR 2.1(d). The Park Service says staff met with or contacted more than 120 tribes while drafting it.
It works through agreements. Enrolled members of a federally recognized tribe with a traditional association to a park may gather plants there for traditional purposes, under an agreement between the tribe and the park and a permit naming the authorized gatherers. The rule defines traditional association as a longstanding relationship of historical or cultural significance predating the park, and traditional purpose as a customary activity rooted in the tribe’s history and important to its distinct culture. Every agreement must prohibit gathering species listed as threatened or endangered under the Endangered Species Act. Selling gathered material inside a park stays prohibited, and before an agreement takes effect the park must complete an environmental assessment and a finding of no significant impact under the National Environmental Policy Act.
Two limits deserve naming. The rule reaches only federally recognized tribes, so non-federally-recognized tribes and Native Hawaiian groups are excluded. And it moves slowly. Yosemite National Park reported in April 2026 that its environmental assessment and finding of no significant impact were complete and that the next step was signing agreements with its traditionally associated tribes: the Bishop Paiute Tribe, Bridgeport Indian Colony, Mono Lake Kootzaduka’a Tribe of California and Nevada, North Fork Rancheria of Mono Indians of California, Picayune Rancheria of the Chukchansi Indians, Southern Sierra Miwuk Nation and Tuolumne Band of Me-Wuk Indians. Nearly ten years on, the agreements had not been signed.
One other law gets dragged into these conversations and does not belong. The Native American Graves Protection and Repatriation Act, in force since 1990, covers human remains, funerary objects, sacred objects and objects of cultural patrimony. The Park Service’s own NAGPRA page does not mention plants at all.
What you can verify from a label, and what you cannot
Almost nothing. That is the honest answer, and a checklist pretending otherwise would be worse than none.
Consent and benefit-sharing do leave a paper trail, but it sits between governments and companies. An access permit, a certificate of compliance, a benefit-sharing contract: each is a business or government-to-business document. None is printed on a bottle, and none appears in a registry you can search by product. A label tells you a claim was made. It cannot tell you whether anyone consented to anything.
What you can do is ask in writing and read the shape of the answer. Four questions do most of the work.
- Which country did this plant material come from, and is it a party to the Nagoya Protocol?
- If so, do you hold an access permit or certificate of compliance for this material, and what is its number?
- Did knowledge from a specific community inform how the plant is used here, and what agreement covers that?
- If you hold a patent connected to this material, where did you disclose its origin?
A company that has done the work answers with countries, numbers and document names. A company that has not answers with adjectives. Either response tells you something.
Keep the sourcing question separate from the safety question, because only one of them is about your body. If you take a botanical product, the people who need to know are your prescribing clinician and your pharmacist, and specific moments matter: before any scheduled surgery, when a new prescription starts, during pregnancy or breastfeeding, and while you are being treated for a condition where clotting, blood pressure, blood sugar or immune function is being managed. Bring the container, not the name you remember. Long traditional use is history. It says nothing about how a plant behaves alongside a drug prescribed last week.
What people have asked for, in their own words
Two sets of statements are worth reading directly, because they come from the people whose knowledge is at issue and because they do not agree with each other.
In a 2020 High Country News article on the ecological and ethical problems of smudging, three people close to white sage said things a consumer article should not smooth over. Weshoyot Alvitre, a Tongva illustrator, stated a firm position that medicinal plants are not to be sold at all, and that it makes no difference whether the seller is Native or not. Rose Ramirez, who is Chumash and Yaqui, said the sale of white sage is well past the point where it could be stopped, and argued for certification and outreach to curb poaching. Deborah Small, who writes about contemporary uses of plants important to Indigenous peoples, said a company’s claim to have sourced sage sustainably no longer means much to her.
Three conclusions, three people, each speaking as an individual rather than for a nation. The same article records that in 2018 the Rancho Cucamonga Police Department confiscated 400 pounds of illegally harvested California white sage.
The second statement is organizational. The National Council of Native American Churches and the Indigenous Peyote Conservation Initiative issued an open letter to the psychedelic and decriminalization movements asking that peyote not be decriminalized. The reasoning is not opposition to decriminalization in general. It is that a conservation strategy is already underway, that individual, state or local efforts can disrupt a nationwide one, that experts warn the plant could become extinct in less than thirty years, and that peyote should have its own regulatory pathway rather than being grouped with other entheogens. Their request to outsiders is explicit: “Respect and defer to representative indigenous leadership even if it is hard for you to understand.”
That is the most directly usable thing here, because it is a stated position rather than an inference drawn from a treaty.
What to take from this
The structure fits in one paragraph. The UN Declaration is a declaration, not a treaty, and the United States has said since 2010 that it is not legally binding. The Convention on Biological Diversity is a treaty, and the United States is the only UN member state that has not ratified it. The Nagoya Protocol hangs off that treaty, so its compliance obligations do not reach users here, while the access law of the country a plant came from may well reach a company operating there. The 2024 WIPO treaty would add a patent disclosure duty, sits four ratifications into a requirement of fifteen, and has no US signature.
The practical consequence is narrow. No seal and no traditional-use claim on a package tells you whether consent was given or benefits were shared. Two things are checkable: whether a company can name a country, a permit and an agreement when you ask in writing, and whether the people whose knowledge is involved have publicly said what they want. Neither is on a label, and that is the point.
Sources
- Government of Canada, Department of Justice. “United Nations Declaration on the Rights of Indigenous Peoples (full text as reproduced by Justice Canada).” justice.gc.ca
- Advisory Council on Historic Preservation (United States). “United Nations Declaration on the Rights of Indigenous Peoples: Background.” achp.gov
- Advisory Council on Historic Preservation (United States). “United Nations Declaration on the Rights of Indigenous Peoples.” achp.gov
- U.S. Department of the Interior, Bureau of Indian Affairs. “Testimony of Donald “Del” Laverdure, Principal Deputy Assistant Secretary for Indian Affairs, before the Senate Committee on Indian Affairs, 9 June 2011.” bia.gov
- Congressional Research Service (via EveryCRSReport). “Convention on Biological Diversity: Recent Decisions Affecting U.S. Engineering Biology, IN12073, 9 January 2023.” everycrsreport.com
- Secretariat of the Convention on Biological Diversity. “About the Nagoya Protocol on Access and Benefit-sharing.” cbd.int
- World Intellectual Property Organization. “Summary of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (2024).” wipo.int
- World Intellectual Property Organization. “WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge: Contracting Parties and Signatories status table (8 July 2026).” wipo.int
- United States Patent and Trademark Office. “WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.” uspto.gov
- World Intellectual Property Organization. “IP Advantage case study: Hoodia, the San peoples and CSIR.” wipo.int
- National Park Service, Department of the Interior (via GovInfo). “Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes, 81 FR 45024, 12 July 2016.” govinfo.gov
- National Park Service. “Interior Announces Final Rule on Tribal Gathering of Plants in National Parks (29 June 2016).” nps.gov
- National Park Service, Yosemite National Park. “Traditional Gathering of Plants.” home.nps.gov
- National Park Service. “Native American Graves Protection and Repatriation Act.” nps.gov
- National Council of Native American Churches and Indigenous Peyote Conservation Initiative (via Center for World Indigenous Studies). “Open Letter to the Psychedelic Movement.” cwis.org
- High Country News. “Sage advice, by Taylar Dawn Stagner, 1 October 2020.” hcn.org
- PubMed. “Heinrich M, Hesketh A. “25 years after the ‘Rio Convention’: Lessons learned in the context of sustainable development and protecting indigenous and local knowledge.” Phytomedicine, 2018. PMID 30318154. DOI: 10.1016/j.phymed.2018.04.061.” doi.org
- PubMed. “Heinrich M, Scotti F, Andrade-Cetto A, et al. “Access and Benefit Sharing Under the Nagoya Protocol: Six Latin American Case Studies Assessing Opportunities and Risk.” Frontiers in Pharmacology, 2020. PMID 32581783. DOI: 10.3389/fphar.2020.00765.” doi.org
- PubMed. “Friso F, Mendive F, Soffiato M, et al. “Implementation of Nagoya Protocol on access and benefit-sharing in Peru: Implications for researchers.” Journal of Ethnopharmacology, 2020. PMID 32311487. DOI: 10.1016/j.jep.2020.112885.” doi.org