[Ip-health] posting on drug seizure

[Leena Menghaney]

[ Converted text/html to text/plain ]
Dealing with nasty EU customs
Business Standard
Latha Jishnu / New Delhi June 10, 2009

When cargo is unloaded from an Etihad Airways plane at Frankfurt airport a =
few
weeks ago , customs officials show unusual interest in a consignment of
medicines from India. The medicine is in transit to Denmark, although the
final destination is the Republic of Vanuatu which, in case you are curious=
,
is a Y-shaped archipelago of 83 volcanic islands in the South Pacific Ocean=
.
It is among the less developed countries and for the islands small populati=
on
the shipment of medicines would have gone a long way.

The medicine in transit is amoxicillin, an antibiotic commonly used to trea=
t a
wide range of bacterial infections, and it has been manufactured in Chennai=
.
The consignment consists of a little over three million capsules valued at =
=A428,000
(Rs 18.2 lakh). The German customs, suspecting trademark violation or so th=
ey
say seize the medicines and detain it till they check with GlaxoSmithKline
Pharmaceuticals (GSK), who they believe owns the trademark. All this takes =
a
fortnight and more, and the cargo which was seized on May 5 is finally
released a couple of days after GSK certifies on May 20 that there is no
trademark violation.

Indeed, there could not have been a violation since amoxicillin is an
international non-proprietary name or generic name. The drug giant did at o=
ne
time hold the patent for Amoxil, the brand name of amoxicillin but that was
long time ago.

The German customs officials clearly did not know this; intellectual proper=
ty
rights (IPR) are not their forte. Yet, customs officials in the EU and the
developed world (OECD countries) are increasingly being forced to enforce I=
PR
through a variety of regulations that contravene internationally agreed
regulations on IPR, which is World Trade Organisations TRIPS agreement. The
more pernicious of these measures is EC Regulation 1383 that allows customs
officials and rights holders to interfere in the legitimate trade of generi=
c
medicines.

The Frankfurt outrage came to light because of a campaign mounted by a hand=
ful
of voluntary agencies, led by Health Action International (HAI), an
independent, global network that is trying to improve access to essential
medicines. The first of the seizures was made towards the end of 2008 when =
the
Dutch customs began detaining Indian generics at Amsterdam airport. Althoug=
h
India and Brazil, one of the countries importing generics from this country=
,
issued strong statements at the General Council of the WTO condemning the
Dutch action, it did not stop the seizures which are increasingly plaguing
generics exports from India. HAI has discovered that there have been 17
seizures of generics all but one originating from India by the Netherlands.

What is patently clear is that the EU will continue to enforce the border
measures under its controversial Regulation 1383 however apoplectic India a=
nd
its developing country allies might get. In fact, the European Commission h=
as
coolly ignored Indias requests to provide information on drug seizures in t=
he
EU. Officials at Indias Permanent Mission to WTO in Geneva are now using th=
e
limited information provided by the Dutch authorities to HAI which used the
Freedom of Information Act to get details of the seizures to make a case. L=
ast
week, Sunjay Sudhir, counsellor at the mission, condemned the clever tactic=
s
being employed by the EU to confuse legitimate generics, which offer a
lifeline to the poor across the world, with counterfeit drugs and worse.

The grounds mentioned by the EC for the drug seizures include counterfeits,
fake drugs, substandard, potentially dangerous products, patent violations
and, believe it or not, drug trafficking! An incensed Sudhir told the TRIPS
Council that India took serious exception to such unsubstantiated and wild
allegations as proved by the subsequent release of the medicines.

Officials acknowledge that the EU actions are clearly intended to create
barriers to legitimate trade of generic drugs and to subvert the Doha
Declaration on Public Health. We are talking about generic medicines, which
neither infringe IPRs nor are potentially dangerous. It seems that it has b=
een
ingrained very deeply within the EC authorities that such products are
synonymous with potentially dangerous substances. This clearly is an untena=
ble
logic, the Indian official told the council.

Its a nice speech that Sudhir made, well argued and full of righteous anger=
.
Some months back Commerce Secretary G K Pillai, too, had spewed brimstone a=
nd
fire, at the Dutch and the EU, calling the seizures an act of piracy. But t=
hat
was it. There was no follow-up at the WTO and the seizures continue while
Indias pharma industry frets and makes its periodic and ineffectual appeals=
 to
the government. Health activists get into a lather each time there is news =
of
a shipment being detained and there is much hair-splitting on the legal
niceties of the TRIPS provisions.

Its a familiar pattern. So do we wait for the next seizure to repeat the
drill?\

Link to the article:

http://www.business-standard.com/india/news/latha-jishnu-dealingnasty-eu-cu=
stoms/360551/[1]

--
Leena Menghaney
Project Manager - India
Campaign for Access to Essential Medicines
Medecins Sans Frontieres
C - 63 Defence Colony
New Delhi 110 024
Tel: 46573730/1, 9811365412



=3D=3D=3DReferences:=3D=3D=3D
  1. http://www.business-standard.com/india/news/latha-jishnu-dealingnasty-=
eu-customs/360551/