E-DRUG: AIDS drugs and Developing Countries
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AIDS AND DEVELOPING COUNTRIES: DEMOCRATIZING ACCESS TO ESSENTIAL MEDICINES
By Robert Weissman
(Note: The following analysis of one of the more pernicious dimensions of
the corporate-dominated trading system is excerpted from the latest Foreign
Policy in Focus brief by Robert Weissman, editor of Multinational Monitor.
Full text is available at:
http://www.foreignpolicy-infocus.org/briefs/vol4/v4n23aids.html)
One in eight South Africans, one in seven Kenyans, and one in four
Zimbabweans has HIV/AIDS. U.S. Surgeon General David Satcher has likened
the HIV/AIDS epidemic in Africa to the plague that decimated Europe in the
fourteenth century.
Existing treatments, which enable many people with HIV/AIDS in the U.S. and
other industrialized countries to live relatively healthy lives, are
unavailable to all but a few people in Africa. Life-saving HIV/AIDS drug
cocktails cost about $12,000 a year in many African countries--vastly out
of reach of all but a small handful of the growing African population with
HIV/AIDS.
Addressing the HIV/AIDS crisis in Africa and around the world will require
a massively accelerated prevention effort. It will also require
revitalizing the decimated public health systems of developing countries
and making quality health care much more widely available. This, in turn,
will require major new investments in public health and the abandonment of
structural adjustment requirements to collect "user fees" from people
seeking health care. But for millions of people infected with the HIV
virus, there is also a crying need to make life-saving drugs more
available--and quickly.
Two ways to promote access to essential medicines involve compulsory
licensing and parallel imports. The more important of these policy tools,
compulsory licensing, enables any government to instruct a patent holder to
license the right to use its patent to a company, government agency, or
other party. Zimbabwe, for example, could issue a license to a local
company for an HIV/AIDS drug manufactured by Bristol-Myers Squibb. The
Zimbabwean firm would then manufacture the drug for sale in Zimbabwe under
a generic name, and it would pay a reasonable royalty to Bristol-Myers
Squibb on each sale.
Compulsory licensing lowers prices to consumers by creating competition in
the market for the patented good. Its impact is similar to the introduction
of generic competition at the end of a drug's patent term--prices come
tumbling down. Compulsory licensing can lower the price of medicines by 75%
or more.
Parallel imports involve imports of a product from one country and resale,
without authorization of the original seller, in another, thereby allowing
the buyer to search for the lowest world price. A Namibian company or
government agency, for example, might purchase HIV/AIDS drugs in
France--assuming they are sold for a lower price in France--and then resell
them in Namibia. Since the price of medicines is sometimes lower in the
United States and other industrialized countries, parallel imports can be a
tool to enable developing countries to lower prices for consumers.
Both compulsory licensing and parallel imports are permitted under the
international trade rules established by the General Agreement on Tariffs
and Trade (GATT) and administered by the World Trade Organization (WTO).
They are regularly used in industrialized countries, including the United
States, Japan, and the European Union. One of the GATT agreements, the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
contains the international rules the WTO enforces on intellectual property
(patents, copyrights, and trademarks). Industry, especially the
pharmaceutical sector, exercised heavy influence over the TRIPS agreement
negotiations, and many public interest advocates generally believe the
TRIPS agreement inappropriately favors corporations.
In general, the TRIPS agreement requires countries to adopt U.S.-style
patent systems, which apply both to products and processes and last for 20
years. This has compelled many developing countries--which had followed the
lead of virtually every industrialized country in enacting weak patent
rules while they were still industrializing (many European countries did
not recognize patents until the 1970s)--to refashion their patent rules
dramatically.
But whatever the TRIPS agreement's biases, and despite the requirements it
imposes on signatory countries, it permits compulsory licensing and
parallel imports. Yet, despite the WTO-legality of these policy tools,
multinational pharmaceutical companies object to the practices, which they
perceive as curtailing corporate profits. The U.S. government has adopted a
similar view, strongly opposing developing country efforts to undertake
compulsory licensing, parallel imports, or other similar measures to make
HIV/AIDS drugs and other essential medicines more available and affordable
to their people.
It is now time for Washington to bring its foreign policy into compliance
with the accepted notion that public health protection is the most
important goal in shaping pharmaceutical patent policy.
First, the U.S. should announce that it will terminate all bilateral
pressure on South Africa, Thailand, Brazil, Argentina, India, and other
countries for pursuing compulsory licensing policies, parallel imports, or
any other WTO-legal policy. Instead, Washington should formally declare
that it accepts the legitimacy of compulsory licensing and should
immediately lift all sanctions currently in place against countries in
retaliation for pursuing any intellectual property policies designed to
make vital medicines more available to those in need.
Second, pending legislation should be altered. The African Growth and
Opportunity Act currently conditions new benefits to developing countries
on whether they enforce "appropriate policies relating to protection of
intellectual property rights." Such provisions should either not be enacted
into law or should be revised to clarify that "appropriate policies"
include compulsory licensing and other measures that help to make
life-saving drugs more widely available.
Third, rather than using the millennial round of WTO negotiations in
Seattle this fall to tighten intellectual property requirements related to
pharmaceuticals, the U.S. should lead the way in calling for a review of
the existing TRIPS agreement and its effect on access to HIV/AIDS and other
essential medicines. Among the pertinent questions: Have TRIPS rules
undermined the ability of developing countries to maintain domestic
pharmaceutical industries? If so, what impact has this had on consumers?
Have TRIPS rules promoted new multinational corporate investment in
research to treat and prevent diseases of particular concern to developing
countries?
Fourth, the U.S. should immediately license to the WHO all of the HIV/AIDS
drugs that have been developed with government funding and for which the
U.S. government holds patent or other intellectual property rights.
Existing law permits Washington to take such steps. With a license, the WHO
could contract with private generic makers to produce the medicines and
distribute them widely in the developing world. Since many of the most
important HIV/AIDS remedies--such as ddI--were developed with significant
U.S. government funding, the U.S. government controls rights to many
important HIV/AIDS treatment pharmaceuticals.
Finally, it should be reiterated that although access to essential
medicines is of critical importance, much more must also be done to prevent
the spread of HIV/AIDS and to improve treatment of those infected. An
essential step in combating the transmission of this disease is to cancel
the foreign debts of the poorest countries, since debt servicing siphons
off funds from investment in public health. World Bank and IMF structural
adjustment programs that impose policies--such as requiring copayments from
indigent patients--also make it more difficult for those with HIV/AIDS to
gain access to medical care. And African governments must do more to
support AIDS education and prevention efforts and to destigmatize people
with the disease.
(Robert Weissman is editor of Multinational Monitor magazine and
co-director of Essential Action, a corporate accountability group. He is
coauthor of Corporate Predators: The Hunt for MegaProfits and the Attack on
Democracy (Monroe, ME: Common Courage Press, 1999; see
http://www.corporatepredators.org)).
Sources for More Information
Consumer Project on Technology
Website: http://www.cptech.org
Office of the U.S. Trade Representative
Website: http://www.ustr.gov
Pharmaceutical Research and Manufacturers of America
Website: http://www.phrma.org
Publications
Anjira Assavanonda, "NGOs Rally Against Patent Law Changes: Call on U.S. to
Stop Pressuring Thailand," Bangkok Post, September 5, 1998 (available at:
http://www.bkkpost.samart.co.th/news/BParchive/BP19980905/050998_News14.html).
Merrill Goozner, "Third World Battles for AIDS Drugs," Chicago Tribune,
April 28, 1999 (available at:
http://chicagotribune.com/news/printedition/article/0,1051,SAV-9904280067,00
.html).
"Gore's Patented Money Move," OUCH!, June 16, 1999 (available at:
http://www.publicampaign.org/ouch6_16_99.html).
"Group Seeks Legislation Making Drugs Affordable to Those In Need," The
Nation (Thailand), September 4, 1998 (available at:
http://203.146.51.4/nationnews/1998/199809/19980904/31338.html).
"What is the United States' Role in Combating the Global HIV/AIDS
Epidemic," Hearing before the Subcommittee on Criminal Justice, Drug Policy
& Human Resources, Government Reform Committee, U.S. House of
Representatives, July 22, 1999 (available at:
http://www.house.gov/reform/cj/hearings/7.22.99/index.htm).
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