Rigged rules

Development organization Oxfam explains why the following conditions industrialized countries and big drug companies seek to impose on the implementation of Paragraph 6 of the Doha declaration on TRIPS and public health will ill-serve the sick and poor the provision is supposed to benefit.

The ‘solution’ should only apply to AIDS, TB and malaria, and only to medicines.

Oxfam objection: There is no rationale for restricting the scope to these diseases. There are many other diseases that ravage developing countries, for which the treatments are, or will be, patented and expensive. For example, Hepatitis C, which can be fatal, affects 8-10 million people in Egypt alone. Drug-resistant diseases are spreading fast, with enormous human cost: pneumonia kills hundreds of thousands of children every year, while gonorrhoea causes immense suffering for millions of women. Half the victims of the major non-communicable diseases (cardiovascular diseases, cancer, diabetes, chronic respiratory diseases and hereditary disorders) are now from the developing world, often from poorer communities.

The solution should cover not only medicines but also vaccines, diagnostic kits and other health products, as these can be patented and expensive.

Beneficiary countries should only be the 49 least-developed countries or the low-income developing countries.

Oxfam objection: This condition denies equal rights of access to generic medicines for at least 72 developing countries that cannot, with the probable exception of China, produce the generic versions of new drugs for themselves or do so at a reasonable price. Tens of millions of needy people in countries with limited public health budgets, such as Brazil, Peru, the Dominican Republic, South Africa, Honduras and Namibia, would be excluded from benefit.

Developing countries also argue that the mechanism should allow countries in a regional trade agreement to import generics as a group, or that one of the members should be able to supply the regional market with generics, which would permit economies of scale. In addition, Oxfam supports their complementary proposal that the North should help to improve capacity in their pharmaceutical sectors by transferring knowhow and technologies, since a thriving local industry is the best guarantee of improved access to medicines and overall “health security.” In the longer term, prospects for such industries will be greatly enhanced by much more substantial reform of the patent rules.

The exporting-country government must issue a compulsory licence to permit production and export of the generic version of the patented product, on a case-by-case basis.

Oxfam objection: It is totally unreasonable to expect the importing country to depend on the political will of another government for access to affordable medicines. Pakistan might need to commission a drug from a manufacturer in India, which is one of the very few developing countries with a sophisticated pharmaceutical industry. It should not have to depend on the Indian government’s willingness to authorize such production. Moreover, the exporting country would be vulnerable to external pressure not to give its consent. Having to seek compulsory licences in both importing and exporting countries also adds to the administrative burden.

Developing countries must negotiate with the patent holder prior to using the mechanism, can only resort to it if the price offer is unsatisfactory, and must formally notify the WTO of their intention.

Oxfam objection: These conditions are unfair because they go beyond existing TRIPS obligations faced by a rich country if it decides to override a patent; they are designed to slow down and complicate the whole process for a developing country.

Only developing countries should be able to produce for export under this mechanism.

Oxfam objection: This condition sounds enlightened but is intended to reduce the number of potential suppliers of generic medicines, to the advantage of the big drug companies. Any country should be allowed to export under the mechanism.

Developing countries should undertake measures to prevent the flow of generic medicines back to the markets where the drug is under patent.

Oxfam objection: The main burden for this should rest with industrialized countries, which already have the means for enforcement (e.g., the recent European proposal to label reduced-price medicines destined for developing countries in order to police illegal re-imports back to Europe). Any measures required of developing countries should be proportionate to the problem and to their capacity.                                                  

The above is extracted from an Oxfam press release (14 November 2002). Oxfam is a development, relief and campaigning organization dedicated to finding lasting solutions to poverty and suffering around the world.

From Third World Economics No. 294 (1-15 December 2002)