From counterfeit to generic medications

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An international conference, co-sponsored by the World Health Organisation (WHO) and Pahrmaceutical Security International (PSI) to discuss counterfeit medicines in Africa took place in Johannesburg, South Africa, on the 15th of January last month. A laudable initiative, which helps bring the reasons behind the success of counterfeit medicines to the fore. Regular medicines are much too expensive for the world’s poor, a reason why they turn to counterfeits with hope.

by John Yan Samba our correspondent from South Africa

This means that the production and importation of generic drugs remain the only answer, a point that has undergone some consideration among international institutions… What of the United States and the European Union?

The production and importation of quality generic drugs are now legal.

For most African states, however, issuing an obligatory licence for the production of a branded medication means the start of a tug of war between themselves and American or European companies who are more often than not, supported by their respective governments. A famous example was in 2001 when the South African government was sued by 39 pharmaceutical companies for having amended the country’s legislation to allow compulsory licencing. Other countries underwent similar problems, an example is the Ghana versus Glawo AmithKline affair. Yet, the idea of a profitable public health venture is gaining ground among international institutions.

In 2001, members of the World Trade Organisation (WTO) gave their stamp of approval to South Africa, when they adopted the Doha declarations which reaffirmed “flexibilities” forcasted in the TRIPS agreement « We agree that the TRIPS agreement does not and should not prevent Members from taking measures to protect public health (…) We affirm that the Agreement can and should be interpreted in a manner supportive of WTO Members’ right to protect public health and in particular, to promote access to medicines for all. » they said. WTO member states hold the right to issue compulsory licences and the freedom to determine the ground for these.

WTO’s position on the issue of public health vis-a-vis private commercial interests remained ambiguous for a long time. The May 2006 issue of their bulletin, however, published Jacqui Wise’s article “Access to AIDS medicines stumbles on trade rules” which stated that “Developing Countries have several international trade law provisions at their disposal to help them buy life-saving medicines at affordable prices for public health needs, particularly HIV/AIDS. But only a few countries are using these because of red tape and political pressure”

Finally, last November saw the departure of the controversial, Howard Zucker – from the Bush administration –, when the WTO was restructured. Margaret Chan then invited German Velasquez – known for his long term committment towards a more universal acces to medications — to be part of a new work committee on public health, innovation and intellectual property. She also stated that “acces to safe, efficient and affordable drugs and technology is fundamental”

Multilateral loser, the US bets on Bilateral deals.

Theoretically, developping nations have the support of international legislations should they seek proper and affordable treatment for their populations. The west, however, is finding ways and means of protecting their commercial interests. The United States, to state but only one of them, have been dexterous and inventive in finding means of counteracting the « flexibilities » provided in the TRIPS agreement through a range of regional and bilateral agreements: Free Trade Agreements (FTA) The agreements enjoy only a scanty public opinion are highly technical and are mostly a result of translucent deals. These agreements could eventually translate into some sort of advantage in what concerns exports, but could also bind them to a wide range of restrictive measures. The FTA’s allows them to get back what they have lost in relation to international negotiations and even more: extending patent life span, measures which will allow known substances to be patented all over again for each “new use”, as well as other restrictions limiting the use of compulsory licences. Moroccans, for instance, have been victims of such agreements. Negotiations are also underway with the Southern African Customs Union, including countries like, South Africa, Botswana, Lesotho, Namibia and Swaziland. These negotiations could undermine the right to produce and import generic drugs for this AIDS infested region.

Where is the African Union ?

Today there is a major dependence on external producers in Africa, a continent that is rigged with 70% of the world’s AIDS/HIV infections. Main producers of generic drugs including Brazil and India are under extreme pressure from pharmaceutical companies and their respective governments, risking the threat of stopping the supply of drugs to a number of African countries. The African Union cannot rest on its laurels whilst generic producers face such risks. Some African countries, though, have the capacity to produce their own generic drugs. Unable to face these threats alone, the African Union needs to join forces with the African Intellectual Property Organisation, among others, to find a collective solution.

First of all, the AU has to protect its members capable of producing low cost drugs. It also has to support every African country during bilateral negotiations with the United States and European Union, in order to achieve a Fair Trade Agreement.

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