[Ip-health] Bridges Weekly: Dutch Seizure of Generic Drugs Sparks Controversy

[Thiru Balasubramaniam]

http://ictsd.net/i/news/bridgesweekly/38841/

Intellectual Property Programme =95 Volume 13 =95 Number 3 =95 28th January
2009

Dutch Seizure of Generic Drugs Sparks Controversy

The recent seizure of a shipment of generic drugs by Dutch customs
authorities sparked controversy at the World Health Organisation=92s
Executive Board meeting this week and elicited a strong reaction from
Brazil and India (see related story, this issue). Some observers
warned that the actions of the Dutch authorities could set a negative
precedent for the delivery of affordable medicines to the developing
world.

Although the exact facts and details have yet to be fully established,
the incident, according to news reports, involved customs authorities
in Rotterdam seizing shipments of the generic drug Losartan, which is
used to treat high blood pressure - manufactured in India and in
transit to Brazil. It appears Dutch authorities were acting on the
request of a company that allegedly has patent rights over the drug in
the Netherlands. Losartan is not under patent protection either in
India or Brazil and thus can be imported freely in Brazil. The drug
shipment has been returned to India.

In a particularly contentious exchange at the WHO meeting, the
Brazilian ambassador criticised the seizure. She stated that the
=93Brazilian Government considers that the decision by the Dutch
authorities to detain an input which is strategic to public health in
a developing country, and exported in conformity with the existing
international norms, represents a grave drawback in the treatment of
the issue of the universal access to medicines

The Netherlands=92 decision represented a =93distorted use of the
international intellectual property system, supposedly upheld by
European Union legislation, and contrary to the spirit and provisions
of the Doha Declaration on TRIPs and Public Health,=94 the ambassador
added.

Brazil indicated that =93other possible reactions will be taken into
consideration according to how this problem evolves, including within
the World Trade Organisation (WTO)=94.

Reports indicate that India=92s commerce department also reacted
strongly to the seizure of the medicines. Indian Commerce Secretary
G.K. Pillai said the action by the EU customs officials was
unnecessary and that his department has raised the matter with the
European Commission, The Mint, an Indian business newspaper, reported.
Further reports from the Hindustan Times added that the Indian
ministry indicated that it =93may have to take the issue to the WTO and
challenge it.=94

A number of stakeholders and experts, particularly public health
advocates and NGOs, are concerned that the Dutch seizure of the
generic drugs might set a bad precedent for public health by creating
yet another barrier to the delivery of quality, affordable generic
drugs to developing countries.

According to Frederick Abbott, Professor of Law at Florida State
University, the seizure of the generic drugs is =93troubling on several
accounts.=94

=93It is particularly unfortunate that customs authorities in The
Netherlands are now taking a position diametrically opposed to the
principles of the Doha Declaration on the TRIPS Agreement and Public
Health that the Dutch government so strongly supported,=94 Abbott told
Bridges.

=93As a general matter, if European Union member states take the
position that legitimate goods in transit through EU ports are subject
to the full European regulatory regime =96 including internal EU IP
regulation =96 this will create enormous impediments to global trade and
operate precisely contrary to the preamble of the TRIPS Agreement =91to
ensure that measures and procedures to enforce intellectual property
rights do not themselves become barriers to legitimate trade=92,=94 Abbott
said.

The situation will no doubt continue to generate commentary from both
perspectives of the controversy, as observers consider the full
implications of the seizure.

ICTSD reporting; =93India may drag EU to WTO on seizure of drugs,=94
HINDUSTAN TIMES, 18 January 2009; =93Brazil to object to Dutch seizure
of generic drug,=94 REUTERS, 23 January 2009; =93Dr Reddy=92s consignment o=
f
drugs to Brazil seized,=94 THE MINT, 15 January 2009.


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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997