[Pharm-policy] Aids drugs: war of words erupts

[James Love]

A note on this story, and Dr. Gazi's quotes.  The WTO TRIPS agreement
does not in general permit use of patents without permission (government
use or compulsory licensing) without paying compensation, even in a
health emergency.  It does permit governments to have very fast tract
procedures for issuing licenses to third parties (particularly in a
health emergency), or even to authorize third parties to use patented
products without first obtaining a license.  Indeed, the US government
itself can authorize parties to use patents without obtaining a license,
under US laws for government use, including use by a government
contractor.  Note that the US law is not even confined to public health
cases, and is used routinely, for example, for government use of
technology patents.  

However, the TRIPS does require the payment of "adequate"
compensation.  The amount of compensation that is adequate will be
determined under the country's own legal system (Article 1 of TRIPS),
and certainly a payment of 3 to 5 percent of the net sales price (of the
generic product) would pass any WTO review, and would be affordable.

That said, we fully support the TAC actions in this matter.  The
situation in South Africa is so desperate that civil disobedience is a
sounder course of action that doing nothing.  Why the South Africa
government, which is willing to defy western sensibilities on its views
of AIDS, is unwilling to issue even one compulsory license to use even
one drug, is difficult to understand or accept.  Of course, the
international community could do more to move the campaign for access to
medicines, but the South African government must too move forward and
begin issuing compulsory licenses for cheap medicines.  

  Jamie


http://www.news24.co.za/News24/Health/Aids_Focus/0,1113,2-14-659_928811,00.html

19/10/2000 20:29 - (SA)

Aids drugs: war of words erupts

Johannesburg - The Pan Africanist Congress said on Thursday that
government and the drug industry had reacted "hysterically" to the
Treatment Action Campaign's (TAC) illegal import of a generic drug
to treat opportunistic HIV/Aids infections.

"The PAC notes the hysterical reaction of the Minister of Health and
the pharmaceutical industry to the Treatment Action Campaign's
effort to make expensive drugs more widely available," PAC health
secretary Dr Costa Gazi said in a statement.

Health Minister Manto Tshabala-Msimang said on Wednesday that the
campaign was illegal and irresponsible - a view readily supported by
drug companies.

Gazi said international trade law allowed a government to import
drugs and to manufacture them without paying royalties in the event
of a health crisis.

"This can be done in an emergency and who but silent President Thabo
Mbeki would deny that we are in the middle of a very serious
emergency with regard to HIV/Aids," Gazi said.

"The Health Department has dragged its feet on this issue and has
blamed the courts for holding them back. That is why TAC has done
this importing."

It was expected the TAC's campaign of defiance would be stopped
either through legal action from the government or the drugs
industry, Gazi added.

"The campaign of denial by the government has not ended, despite the
fact that the President has been pushed into the background ... but
the spirit of denial continues and the public health sector
continues to deteriorate.

"Conspiracy theories will not stop the epidemic. Drugs like AZT,
Nevirapine and Fluconazole are vital weapons in the war against this
invading virus," he said.

The latest in the war of words follows Tuesday's announcement by TAC
that it had imported Biozole, a generic version of Fluconazole, in
defiance of patent laws.

The patent for Fluconazole is held by US pharmaceutical giant
Pfizer, which sells the drug for R80,24 per tablet to the private
sector and for R28,57 to the public sector.

The Thai generic imported by TAC costs R1,78.

Meanwhile the Democratic Alliance (DA) and the African National
Congress (ANC) on Thursday accused each other of electioneering.

The DA had on Wednesday also criticised the campaign saying it was
illegal, criminal and insupportable.

On Thursday ANC spokesperson Smuts Ngonyama said in a statement that
the DA's criticism of the TAC campaign smacked of "hypocrisy and
double standards."

"The electioneering message by Tony Leon and his ilk for the
provision of free anti-retroviral drugs for areas in their control
at local government level should be seen for what it is - a
desperate vote catching exercise that is a political ploy, not borne
out of caring for the people, but purely meant to score cheap
political points," Ngonyama said.

DA Western Cape spokesman Dr Kobus Gous fired back saying:
"It is evident that the Western Cape government's distribution of
anti-retrovirals must be driving the ANC mad.

"The DA is doing what the ANC refuses to do, despite the benefits it
would hold for all South Africans if the ANC chose to follow the
DA's example." - Sapa
-- 
James Love  mailto:love@cptech.org http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 20036
voice 1.202.387.8030  fax  1.202.234.5176