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Jesse Jackson, Jr's HOPE for Africa Act and US policy on Intellectual Property and Medical Technologies
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Info-Policy-Notes | News from Consumer Project on Technology
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February 28, 1999
"TRIPS" provision in Jesse Jackson, Jr.'s HOPE for Africa
Act seeks to limit US trade pressures on African countries
on matters concerning access to medicines.
Bill would prohibit US government from using public funds to
pressure African countries to adopt Intellectual Property
provisions that exceed WTO/TRIPS requirements, on matters
concerning access to medical technologies.
James Love <love@cptech.org> 202.387.8030
Representative Jesse Jackson, Jr. (D-IL) has introduced H.R.
772, the Human Rights, Opportunity, Partnership and Empowerment
for Africa Act (HOPE for Africa Act). The bill is an alternative
to HR 434, the "The African Growth and Opportunity Act." Both
bills seek to define a new trade relationship between Africa and
the United States. There are many differences between the two
bills on issues from debt to intellectual property rights.
Public Citizen is supporting HR 772, and opposing HR 434, which
it calls "Nafta for Africa." At least one African press report refered
to HR 434 as the "African Recolonization Act," and it
had drawn opposition from several leading African American
leaders such as the Reverend Leon Sullivan, Representative
Maxine Waters and Coretta Scott King. (See:
http://www.citizen.org/pctrade/Africa/africahome.html)
This note discusses one provision in HR 772 (the HOPE for
Africa bill) that concerns US trade pressures on African
Countries relating to pharmaceutical drugs and other medical
technologies. Section 601 of HR 772 would prohibit the US
government from opposing any African intellectual property or
competition legislation or policy that seeks to promote access to
pharmaceuticals and other medical technologies, so long as the
legislation or policy complies with the WTO's TRIPS agreement on
Intellectual Property.
The practical effect of this provision would be to stop the
US government from pressuring African countries to adopt so
called "TRIPS plus" policies that exceed country requirements
under current WTO rules.
There are at five areas where the US government is now
backing pharmaceutical company lobbying for "TRIPS Plus" policies
in Africa.
1. Compulsory licensing of drugs for AIDS and other essential
medicines. Under the WTO rules, all WTO members countries
will be required to have 20 year patents on medicines. The
WTO permits countries to issue "compulsory licenses" to
patents to broaden access to medicines. These compulsory
licenses are subject to WTO safeguards, including payments
of reasonable royalties to patent owners. Nevertheless, the
US government is putting enormous pressure on South Africa
and other African countries, opposing any and all compulsory
licensing of medicines. (See
http://www.cptech.org/ip/health/cl)
2. Parallel Imports. Parallel Imports, sometimes called grey
market goods, are cross border trade, without permission of
the manufacturer. When parallel imports are legal,
hospitals or other consumers can shop around and get the
best world price. Drug companies often charge very
different prices for the same drug (manufactured and sold by
the same company), based upon local market conditions. In
1997 South Africa passed legislation to permit parallel
trade in pharmaceuticals, a practice that is common in
several countries in the European Community. But at the
request of the US pharmaceutical industry, the US government
has asked South Africa to repeal its legislation. Without
parallel imports, African countries will be hostage to often
uncompetitive local markets. (See
http://www.cptech.org/ip/health/pi)
3. Research Exemptions. The USA "Bolar amendment" gives US
generic drug companies the right to conduct research on
patented drugs prior to the expiration of a patent. The US
government has opposed efforts by several countries to enact
language that is identical to US law.
4. Generic Drug Substitution. Even though the US government
led the world in the development of the generic drug
industry and in the use of generic drug substitution to
lower drug costs, US trade officials have pressured
countries that seek to promote generic drug substitution,
under the theory that this violates trademark rights.
5. Health Registration Data. Last year the US government put
South Africa on the 301 Watch list, in part for the South
African government's decision to authorize generic versions
of Taxol, an important cancer drug. The US action was based
upon the fact that South Africa permitted generic drug
companies to rely upon NIH sponsored clinical trials to
prove that Taxol was safe and effective. The US government,
which gave Bristol-Myers Squibb the exclusive rights to
those studies (for zero royalties), criticized South Africa
for not having 10 years of market exclusivity for such
studies, as do some European countries. But 10 years is not
required by the WTO. Indeed, in the USA the period is 5
years, and the South African sanctions came after the
expiration of the US exclusivity. (See
http://www.cptech.org/ip/health/data/)
In these and other cases, US trade officials have mindlessly
lobbied for large pharmaceutical company commercial interests.
Unfortunately, because of the low incomes of African countries,
this is contributing to the growing public health crisis in
infectious diseases, and presenting profound ethical questions.
The US government is seemingly oblivious to terrible disparities
in access to modern medical technologies. Representative
Jackson's bill seeks to remedy this situation.
As of Sunday evening the US Congress has yet to publish HR
772 on the Internet. Based upon an earlier discussion draft,
this is the language of the TRIPS provision on HR 772.
<----------begin TRIPS provision in HR 772------------>
Sec. 601 Requirements Relating to Sub-Saharan Africa
Intellectual Property and Competition Law
Funds appropriated or otherwise made available to any department
or agency of the United States may not be used to seek, though
negotiation or otherwise, the revocation or revisions of any
sub-Saharan African intellectual property or competition law or
policy that is designed to promote access to pharmaceuticals
or other medical technologies and such law or policy, as the case
may be, complies with the Agreement on Trade-Related Aspects of
Intellectual Property Rights referred to in section 101(d)(15) of
the Urugay Round Agreements Act.
<----------END Provision in HR 772-------------------->
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