The real test for ‘fair and equitable’ benefit sharing from bioprospecting will be closely related to the adoption of the Nagoya Protocol by certain key actors, and will depend how they adopt it. The ‘elephant in the room’ is the United States which is unlikely to ratify the CBD and adopt the Nagoya Protocol. Given the size of its domestic biotechnology, pharmaceutical, health care, cosmetic and other industries and the location of many multinationals companies there, it is likely that there will continue to be a huge gap in adoption of ABS principles and practice and user compliance. While there are likely to be some, like the ICBG-funded projects, who will continue to do in-situ bioprospecting in foreign countries, will seek prior informed consent, establish mutually agreed terms with local providers and monitor the utilisation of genetic resources and extracts that are collected. There are also likely to be others in the United States who will still be able to avoid (naively, deliberately or both) ABS negotiations with providers and governments in other countries, or that will simply use domestic genebanks and collections to source genetic resources. Even if US researchers continue to pursue in-situ biodiscovery activities in countries that have Nagoya compliant ABS regulations, if they do not comply there may be little legal action that can be taken except for the cancellation and prevention of future permits. The worst punishment might be ‘naming and shaming’, but only if the provider country, concerned members of the public or NGOs are able to identify that a non-compliance has occurred. The Clearing House mechanism may assist with this; however, there are still relatively few ways to check on non-compliance (usually by scrutinising the filing of a patent or publication of research findings) and these can be laborious. Even if checked, patent documents and publications do not always disclose how or where genetic resources are obtained, or if traditional knowledge is used.