[Ip-health] Compulsory licences are the right medicine, The Nation, February 23, 2008

Mon Feb 25 14:16:52 2008

GUEST COLUMNIST, The Nation

http://www.nationmultimedia.com/2008/02/23/opinion/opinion_30066217.php

Compulsory licences are the right medicine

The compulsory drug licences Thailand has issued over
the past year have shown the world how to balance
public health priorities with international and
national legal obligations to patent holders.

Published on February 23, 2008

The implemented compulsory licences have led to
dramatic cost savings and enabled the Thai public
health system to expand access to life-saving
medicines. The recently issued compulsory licences for
cancer drugs promise to do the same, if they are
implemented.

The benefits have not been for Thailand alone. The
first round of Thai compulsory licences led brand-name
drug companies to cut their prices for key products on
a worldwide basis. Abbott dropped its middle-income
country price for the crucially important Aids drug
Kaletra from US$2,200 to $1,000, for example.

The new Thai government is now undertaking a review of
the set of compulsory licences on cancer drugs issued
by the previous minister of public health. These
licences offer the prospect of making essential
medicines available to people who need them but
otherwise will be denied access. It is hard to imagine
a legitimate policy reason for the licences not to be
implemented, but it is the right of the government to
review the policy.

Whatever the government decides to do, however, it
should make its decision on the merits, not influenced
by the reprehensible but groundless threats from the
brand-name drug companies.

News accounts indicate that PhRMA, the US brand-name
pharmaceutical industry trade association, has
threatened that, if Thailand implements the compulsory
licences on cancer drugs, it will lobby to have
Thailand designated a "Priority Foreign Country" under
the US Special 301 process. It has also been intimated
that the United States might deprive Thailand of other
trade benefits, including reduced tariffs on exports
to the US available under the Generalised System of
Preferences (GSP).

Although PhRMA is a powerful lobby, Thailand should
not take these threats seriously. They have no basis
in US law or political reality.

As a matter of US law, the US Trade Representative
(USTR) may designate a country a Priority Foreign
Country if it has "the most onerous and egregious
acts, policies, and practices which have the greatest
adverse impact (actual or potential) on the relevant
US products". Since there is no doubt whatsoever that
Thailand's actions are compatible with its obligations
under TRIPS, a point that USTR has never disputed, the
USTR could not make such a designation.

In the past, the USTR has complained about an alleged
failure of the Thai government to negotiate with
patent holders before issuing compulsory licences. But
there is no question that the government undertook
extensive negotiations before issuing the recent
licences on cancer products. It is also clear that,
because the Thai compulsory licences are for
government use, Thailand has no obligation under World
Trade Organisation rules to engage in negotiations
with patent holders. As the WTO says, in cases of
government use, "there is no need to try first for a
voluntary licence".

Thailand did lose some GSP privileges in the United
States last year. But this was part of the normal
process of reducing privileges for growing and
competitive economies like Thailand's. It is likely to
continue over time, with no connection at all to Thai
decisions on compulsory licensing.

Even more important for the Thai government and people
to understand than the legal rules around US trade
preferences are rapidly changing political realities
in the United States. PhRMA is an industry whose power
and influence is on the wane.

Each of the three leading US presidential contenders
is much more critical of the industry than the current
president.

Hillary Clinton has emphasised her support for the
Doha Declaration on the TRIPS Agreement and Public
Health and has pledged to "support trade policies that
protect and expand poor countries' right to
affordable, quality-assured generic drugs for
important health needs".

Barack Obama likewise has emphasised that he "supports
the rights of sovereign nations to access
quality-assured, low-cost generic medication to meet
their pressing public health needs".

John McCain has not issued a detailed policy statement
on these matters, but he has characterised brand-name
pharmaceutical companies as "the big bad guys".

Whichever of these candidates is the next US
president, it is a virtual certainty that US policy
will place much more emphasis on public health and
patient concerns, and be far less responsive to Big
Pharma's policy agenda.

Over the past year, Thailand has demonstrated how to
ensure that essential medicines are made available to
people who need them. Now is the time for Thailand and
its people to reap the benefits of the government's
courageous actions, not to succumb to the empty
bluster of Big Pharma.

Robert Weissman is the director of Essential Action,
USA.

The Nation

Kannikar KIJTIWATCHAKUL (Kar)
Access to Essential Medicine Campaigner
MSF Belgium - Thailand Mission,
522 Mooban Nakorn Thai 14,
Ladphrao Soi 101/1,
Bangkapi, Bangkok 10240
Tel (+66) 2370 3087
Fax (+66) 2731 1432
Mobile (+66) 85-070-8954

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