Annotated USTR 301 report against South Africa

[James Love <love@cptech.org>]

This is from the April 30, 1999 USTR Special 301 review.  I have
pulled out the part of the report dealing with South Africa, and
made a few comments.   The USTR report is basically a re-write of
the February 16, 1999 Pharmaceutical Research and Manufactures 
Association (PhRMA) submissions to USTR
(http://www.phrma.org/issues/nte/safrica.html).  Please read
the part of the USTR report that punishes South Africa for
speaking out against US policy on pharmacueticals in Africa.

We will be sending a letter to Vice President Gore, who is the 
US chair of the South Africa/USA Binational Commission (BNC),
complaining about his role in punishing the South African 
people for its government's attempts to address the
obvious health care crisis is South Africa.  Please let me
know if you are interested in the working with us on the 
letter.

   Jamie Love <love@cptech.org>

Here is the USTR 301 report on South Africa, from April 30, 1999,
with my annotations.

http://www.ustr.gov/releases/1999/04/99-41.html

<-----------begin USTR 301 report on SA--------------------------->

South Africa: South Africa's Medicines Act appears to grant the Health
Minister ill defined authority to issue compulsory licenses,
authorize parallel imports, and potentially otherwise abrogate patent
rights. 

    [note:  South Africa wants to use parallel imports and compulsory 
            licenses. But are legal under the WTO/TRIPS agreement.
            Parallel Imports are legal under Article 6,
            and compulsory licenses are legal under Article 31.
            In Europe, parallel imports of pharmaceuticals are
            common, and we do not bring trade pressures on this 
            issue.  Compuslory licenses are also used in Europe
            and the USA.]

Implementation of the law has been suspended pending the
resolution of a constitutional challenge in the South African courts.

   [Note:  Drug companies are tying to block the act in court]


Undisclosed test data is also not adequately protected under South
African law. 

   [Note: South Africa permitted generic versions of Taxol to 
    enter the market. Taxol is a US government invention.  
    Evidence the drug is safe and effective comes from US NIH 
    sponsored clinical trials.  USTR is seeking to protect
    BMS monopoly on Taxol worldwide.]


During the past year, South African representatives have
led a faction of nations in the World Health Organization (WHO) 
in calling for a reduction in the level of protection provided 
for pharmaceuticals in TRIPS. 

    [Note: This is a very troubling aspect of the 301 review.
     The South African Ministry of Health has spoken out
     against US government bilateral pressures on 
     intellectual property issues.   Doctors representing 
     the South African government have helped to mobilize
     the public health community to address the global
     public health crisis with AIDS and other diseases,
     and have spoken in support of compulsory licensing 
     of essential medicines.  At no time has South Africa
     called for changing the TRIPS agreement.  What 
     South Africa wants to do is consistent with the 
     TRIPS agreement.

     Here the USTR makes it clear that it will punish even the 
     expression of opposing views in international forums.  
     This actions is designed to punish South Africa for giving 
     a voice of the millions of infected AIDS patients in South 
     Africa, and to warn other African countries not to speak out.]  


Copyright piracy and trademark counterfeiting is widespread and the 
U.S. copyright industry estimates that trade losses due to piracy of 
copyrighted works increased more than 35 percent between 1997 and 1998. 
However, the South African Government recently took the welcome step of 
adopting a implementing strategy to its 1997 Counterfeit Goods Act which 
could strengthen enforcement. We call on the Government of South Africa 
to bring its IPR regime into full compliance with TRIPS before the 
January 1, 2000 deadline, ensure that all Government offices use only 
legitimate software, and clarify that the powers granted in the
Medicines 
Act are consistent with its international obligations 

     [Compulsory licensing and parallel imports are both
      permited under the WTO/TRIPS accord]


and will not be used to weaken or abrogate pharmaceutical patent
protection.

     [South Africa has to do more than abide by international 
      agreements, it has to satisify the President Clinton and
      Vice President Al Gore that Glaxo-Welcome, Bristol-Myers
      Squibb, Merck and other companies can charge the prices
      they want in South Africa.


We will continue to address these issues with the South African
Government and 
will conduct an out-of-cycle review of South Africa's progress towards 
addressing these concerns in September 1999.

<------------------end USTR 301 report on SA---------------->


-- 
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org