[Ip-health] Kenyan AIDS Patients Seek To Overturn Anti-Counterfeiting Law As Unconstitutional

[Sarah Rimmington]

http://www.ip-watch.org/weblog/2009/07/07/kenyan-aids-patients-seek-to-over=
turn-anti-counterfeiting-law-as-unconstitutional/
7 July 2009
Kenyan AIDS Patients Seek To Overturn Anti-Counterfeiting Law As
Unconstitutional
By Nicholas Wadhams for Intellectual Property Watch @ 3:48 pm

NAIROBI - Three HIV/AIDS patients in Kenya announced Tuesday they will
petition the country=92s Constitutional Court to declare a new
anti-counterfeiting act illegal because it could deny them access to
generic medicines. The move, which has the support of public health
groups across the country, seeks to have the 2008 Anti-Counterfeiting
Act made unconstitutional on the grounds that it could rob them of their
right to life.

The anti-counterfeiting law, which is aimed at cracking down on the fake
batteries, pens, drugs and cosmetics flooding into Kenya, has been
criticised by the NGO community and importers of generic drugs because
of the way it defines counterfeit products. They say its definition is
so vague that it could include generic drugs. The act could also allow a
pharmaceutical company to charge patent infringement in Kenya even if
its patent is not registered there.

=94Generic medicines are legitimate exact copies of their brand-name
original. They are not counterfeits,=94 the three said in a statement read
out at a news conference. =93They should not be confused with
counterfeits. The manufacturing of generic medicines is not a criminal
offence.=94

=94We believe our government should combat counterfeiters and counterfeit
goods, including medicines,=94 the statement said. =93But not at the expens=
e
of our health and our right to life.=94

The issue is of life-and-death importance in Kenya and much of the rest
of Africa, where HIV/AIDS patients can usually only afford generic
drugs, which are up to 90 percent cheaper than their brand-name
counterparts. The international donors who fund some drug distribution,
including the US President=92s Emergency Plan for AIDS Relief and the
Global Fund to Fight AIDS, Tuberculosis and Malaria, rely almost
exclusively on generics manufacturers for their supply.

The Kenyan act has gained widespread attention abroad because it is
being used as a partial template for similar anti-counterfeiting bills
in Uganda, Tanzania and other African nations that have both been
flooded with counterfeit goods and also have a high number of people who
rely on generic HIV/AIDS drugs. The act also caused an uproar among
generics manufacturers in India, who argue it could wipe out their
business if an opponent of their products should try to exploit it.

Advocates of the new law, including the Kenya Association of
Manufacturers and brand-name drug-maker GlaxoSmithKline, argue that its
language is clear and they have no intention of trying to block the
import of generic drugs. The act has not yet taken effect but is
expected to do so within weeks.

That has not persuaded public health advocates in Kenya. They cite more
than a dozen cases in recent months that saw generic drugs made in India
and bound for South America and elsewhere in Africa impounded in
European ports. Customs officials argued that the drugs violated
European patent rights.

=94As it applies right now, the seizures of drugs is very imminent,=94 said
James Kamau, coordinator of the Kenya Treatment Action Network in
Nairobi, who took part in the announcement Tuesday. =93All the regulatory
body has to decide =85 is just to imagine that they are counterfeits and
they seize them.=94

Delays at ports like the Kenyan city of Mombasa could be fatal because
public health centres and clinics often face severe shortages of drugs.

Kamau and other advocates for generics claim that pharmaceutical
companies are trying to use the Kenyan law and other draft laws similar
to it elsewhere in Africa to quash the market in generics or to get
their own generic drugs into people=92s hands. Major pharmaceutical
companies including GlaxoSmithKline deny those claims.

Joseph Munyi, one of the petitioners, said the group=92s efforts were
being funded in part by contributions from fellow HIV/AIDS patients in
Kenya who fear they too will lose access to the medicines they rely on
to survive.

The petitioners said they planned to file their appeal with the
constitutional court on Wednesday. They said they were not opposed to
the aims of the anti-counterfeiting act, and agree that counterfeits are
=93frauds, made and sold by criminals who seek to deceive consumers,=94
according to the statement.

=94We need the government to fix the loopholes within the act so that our
rights can be protected,=94 said Patricia Asero, another of the
petitioners. =93If that is done, then we will rest.=94

Nicholas Wadhams may be reached at info@ip-watch.ch.

Categories: Developing Country Policy, Development, Enforcement,
English, Human Rights, Lobbying, News, Patent Policy, Public Health

--
Sarah Rimmington
Attorney
Essential Action, Access to Medicines Project
Washington, DC
Tel: +1 (202) 387-8030
Cell: +1 (202) 422-2687
www.essentialaction.org/access/