|
Copied under fair use US bullying on drug patents: Summary Last November, developing countries succeeded in getting the World Trade Organisation (WTO) Ministerial Conference to issue a landmark Declaration stating that public health should take precedence over WTO patent rules. The so-called Doha Declaration reaffirmed the rights of governments to use WTO public-health safeguards or other measures to gain access to the cheapest possible medicines, without the threat of trade sanctions or the kind of corporate pressure exerted in Brazil and South Africa earlier that year. One year on from Doha, Oxfam has commissioned a review of the US government's bilateral policies on patents and medicines to find out how far it has lived up to these promises. It also looks at the lobbying record of the giant pharmaceutical companies and their influence over US government policy. The findings are damning. Overall the number of bilateral complaints against developing countries relating to patents and medicines made by the pharmaceutical companies to the US government has not fallen; nor has the number of complaints which the US government takes up. This is not a theoretical matter. Forty million people now live with HIV/AIDS around the world. Fourteen million people die every year of preventable, infectious diseases, most of them in developing countries. Most are also women and children. It is now widely acknowledged that WTO patent rules - set out in the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) - further restrict poor people's access to life-saving medicines by raising their price. Yet, US bilateral policy seeks even higher standards of patent protection for medicines. The review looks at the bilateral policies of the US government on patents and medicines both before and after the WTO Doha Declaration. It focuses on the annual trade report of the US government known as 'Special 301'. Special 301 is a section of the US Trade Act which requires the US Trade Representative (USTR) to identify countries it considers to have inadequate intellectual property rights, to warn them to improve, and if not, to apply unilateral trade sanctions. It is a big stick widely feared by developing countries - not just because of the threat of sanctions, but also because of the associated diplomatic and political pressures. The review also looks at the annual submission to the USTR of the Pharmaceutical Research and Manufacturers of America (PhRMA) - a major US lobby group on trade issues - and its relationship to the Special 301 report. Although PhRMA is based in the US, its membership includes the world's major pharmaceutical companies, including Pfizer, Novartisk, GSK, and Merck. The findings from the Oxfam review show that public pressure and the Doha Declaration have led to the following: The US government has reduced the number of complaints
in its Special 301 report against countries that introduce or use WTO-compatible
compulsory licensing or parallel import provisions. Neither the US government
nor PhRMA has any official complaints against the 49 Least Developed
Countries (LDCs). These moves are welcome. However, their potentially
positive impact on poor people's health is undermined by continued complaints
by the US and PhRMA on other aspects of drug patenting. The findings
from the Oxfam review show that, contrary to the spirit and the letter
of the Doha US bilateral policy on patents and medicines is still heavily influenced by the narrow commercial interests of the giant pharmaceutical companies seeking to stave off generic competition for lucrative patented drugs. The US government included 66 per cent of all countries recommended by PhRMA's annual submission in its 2002 Special 301 report, compared with 61 per cent in 2001. The number of complaints submitted by PhRMA to the USTR against developing countries was more or less unchanged - 28 countries in 2001 and 27 in 2002. PhRMA actually increased the number of complaints against developing countries relating to compulsory licensing provisions, from 13 countries in 2001 to 15 in 2002. The US continues to use its Special 301 trade mechanism to bully developing countries on a wide range of other drug patenting issues, the most frequent complaint concerning the protection of test data. Overall, the number of complaints by the USTR against developing countries concerning pharmaceutical patenting has remained roughly the same pre- and post-Doha. It made complaints against about 18 developing countries in 2001, increasingly slightly to 20 in 2002. Many of the complaints are TRIPS-plus i.e. they go beyond the requirements in TRIPS. Many of the countries targeted are key generic producers, such as India, Brazil, Argentina, Thailand, and Colombia. Some, however, are simply poor countries with little production capacity, such as Vietnam and Bolivia. The US government continues to use bilateral and regional trade agreements outside the WTO to pressure developing countries to implement TRIPS-plus standards. The US has bilateral intellectual property agreements with approximately 28 developing countries and is seeking more. These continued bilateral pressures against developing countries delay or restrict the production of cheaper generic versions of new medicines. This not only reduces poor people's access to medicines in these countries, but also chokes off the supply of cheap drugs to the vast majority of other drug-importing poor countries leaving them entirely dependent on expensive patented medicines. If bilateral pressures do kill off generic capacity in India and other developing countries, then the fact that the US and PhRMA are no longer enforcing patent claims in LDCs will be little more than an hollow gesture, as there will be no where for LDCs to import cheap generics from. The same will apply to the WTO's decision at Doha to extend the deadline for LDCs to implement drug patenting. Similarly, bilateral pressures will also negate the commitment made by WTO ministers at Doha to lift TRIPS restrictions on exports of cheap generics to countries with 'insufficient or no manufacturing capacities in the pharmaceutical sector'. But US hypocrisy goes further. Until recently the US was arguing that only developing-country members, not developed countries, should be allowed to export generic medicines to countries without manufacturing capacity. Yet they are simultaneously targeting these very countries in order to stop them producing cheap generics. Moreover, while maintaining its tough bilateral stance on generic production in poor countries overseas, the US is going soft on generic production at home. In October 2002 President Bush unveiled a plan to bring lower-cost generic medicines more quickly into the US market by closing the legal loopholes that allow companies to block them. When it comes to standing up to the drug barons, it is clear that votes at home count more than lives lost overseas. Recommendations Rich countries should make their bilateral policies
fully compatible with the Doha Declaration. This means stopping pressurising
governments in both developing countries and the LDCs to introduce patent
provisions that run counter to the Doha Declaration, or that are TRIPS-plus.
The WTO should play a more active role in ensuring rich-country compliance
with the Doha Declaration in both developing countries and the LDCs.
To this end, the TRIPS Council should require rich-country members to
explain bilateral departures from multilateral standards based on annual
reviews of their bilateral trade policies and agreements, focusing particularly
on the US. Rich countries should make export guarantees, tax concessions,
and other government incentives conditional on companies respecting
the rights of both developing countries and LDCs to use the TRIPS public-health
safeguards. Investment and pension fund holders should make their funds
conditional on companies respecting the rights of both developing countries
and LDCs to use the TRIPS public-health safeguards. Poor countries should
use the longer deadlines for introducing pharmaceutical patents agreed
at Doha, or the TRIPS-compatible compulsory licensing and parallel import
provisions, to help increase access to vitally needed medicines. Additional
commitments from the rich countries to the Global Health Fund, bilateral
aid, and debt relief are all urgently needed to help make this possible. |