Break in negotiations provides last opportunity to fix flaw in the TRIPS Agreement
“Today, some AIDS patients in Malawi, Honduras or Cambodia can buy generic triple therapies that cost US$300 per patient per year – because Indian and Thai producers are able to export them,” explains Ellen ‘t Hoen from Médecins Sans Frontières. “But unless a real solution to the paragraph six issue is found, the source of affordable generics will dry up. In the future, many patients will be excluded from access to life-saving treatment because they can’t afford brand name drugs.”
In November 2001, the Doha declaration on TRIPS and public health had given developing countries hope that the system could help them protect access to essential medicines. The declaration stated unequivocally that “the [TRIPS] Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all”. This was a crucial assertion that lives must be given priority over patents.
However, one key issue was left unresolved in Doha: how to ensure that a country which provides pharmaceutical patents can export to a country that has issued a compulsory license but does not have manufacturing capacity. Paragraph 6 of the Doha declaration acknowledged this flaw in the TRIPS Agreement, and WTO Members instructed the TRIPS Council to “find an expeditious solution to this problem and report to the General Council before the end of 2002”.
Given the disparity of their motives, it is not altogether surprising that delegates failed to reach an agreement. Led by the pharmaceutical industry, the US, Canada, Japan, the European Union and Switerzland have directed their efforts to distorting and undermining the spirit and intent of the Doha declaration. Over the weeks of negotiation, proposed texts gradually accommodated more of their demands, in a bid to assuage their extreme and intransigent positions. The latest draft (16 December) weighed heavily in their favour, yet was ultimately rejected by the US as too generous on the scope of diseases.
In future discussions, it is vital that the text does not limit the solution to certain diseases, as pushed for by the pharmaceutical industry and the US. The Doha declaration refers simply to the protection of “public health”. There is no public health rationale for limiting a policy that is designed to increase medicines for all to a few diseases only.
“If the agreement is too restrictive, developing countries will increasingly be forced to rely on supply from originator companies, who sell at more than twice the price of generic manufacturers, even in today’s competitive market,” explains Ellen ‘t Hoen. “There are almost thirty million people living with HIV/AIDS in sub-Saharan Africa, and the biggest obstacle to saving their lives is the price of treatment. Drug prices must drop further to enable them to access these drugs. How will this happen if the generic industry is stifled?”
The agreement must not force countries to negotiate case by case and drug by drug, and should not require onerous conditions or unnecessary notification procedures. If the text is to offer a real “solution” to the production for export issue, it must be simple, workable and automatic. Bearing in mind that if a rational and just solution is not found, poor countries will not have the same ability to use compulsory licenses as wealthy countries – and in the end, patients in developing countries will pay the price, in many cases with their own lives.