Hearings Begin Today in Drug Industry Lawsuit Against South Africa’s Generic Drug Importation Act
The "landmark" lawsuit brought by 39 pharmaceutical companies against the South African government over a law that would allow the country to acquire cheaper AIDS drugs began today in the Pretoria High Court, Reuters reports (Swindells, Reuters, 3/5). The drug firms are contesting South Africa's 1997 Medicines and Related Substances Act, which would enable South Africa to obtain AIDS drugs at reduced prices through two practices: parallel importing and compulsory licensing. Parallel importing involves the purchasing of drugs from the "cheapest sources available" without the manufacturer's permission, and compulsory licensing allows the government, after declaring a national health emergency, to license local companies to manufacture cheaper, generic version of drugs whose patents are held by multinational companies ( Kaiser Daily HIV/AIDS Report, 3/2). The Pharmaceutical Manufacturers' Association of South Africa, which is representing the drug companies, said that the act should be struck down because it "contradicts" the Trade-Related Intellectual Property Rights agreement and "gives unconstitutional and arbitrary powers" to South Africa's health minister in deciding when the country can import or manufacture generic versions of patented drugs. PMA head Mirryena Deeb said, "It's a fight about whether the South African government respects the rule of law. The act contravenes the country's constitution and its own Patents Act and would do nothing for access to quality and affordable medicines." But the government argues that the act is both in accordance with World Trade Organization rules on patent rights and "central to its constitutional duty to provide health care" to the country's poorer citizens. At today's hearing, South African Health Minister Dr. Manto Tshabalala-Msimang said that she felt "quite confident that the government will win this case" (Reuters, 3/5). "We have to win," she added (Agence France-Presse, 3/5). Court hearings are expected to end on March 12 (Reuters, 3/5). A ruling on the case, however, might not come until the end of this year (Nessman, AP/Contra Costa Times, 3/5). Reuters reports that appeals to the ruling are "expected" (Reuters, 3/5). Dr. Ayanti Ntsaluba, director of South Africa's health ministry, said that if the drug companies win the suit and the law is overturned, the South African government will "work to pass a new law that will conform to the court's ruling" (AP/Contra Costa Times, 3/5).
Scope of the Trial
AIDS activists say that the "resonance" of the case in South Africa "promises to reach far beyond" the issue of intellectual property rights and will make a statement concerning access to treatment for citizens of developing nations. Belinda Coote, southern Africa director for the aid organization Oxfam, said, "I think we all know here today that this is not about South Africa. This is the pharmaceutial companies belligerently and aggressively defending their monopolies around the world" (Cauvin, New York Times, 3/5). Zackie Achmat, chair of the South African AIDS activist group Treatment Action Campaign, stated, "This case is one of the most important things that is going to happen in Africa and for countries in Asia and Latin America" (AP/Contra Costa Times, 3/5). He added, "Profiteering, at the expense of life, even when protected by law, is not a right. The right to life and access to health care are nonnegotiable" (Maykuth, Philadelphia Inquirer, 3/4). Drug firms, however, deny that the lawsuit is about anything other than patent rights. Deeb said, "This is a narrow fight. It's the arbitrariness and uncertainty we are fighting. It's got nothing to do with access [to antiretroviral drugs]." Deeb added that the South African government has declined to accept several drug companies' offers of "vastly reduced prices" for their anti-AIDS drugs (AP/Contra Costa Times, 3/5). "The South African government has shown no indication in wanting to treat HIV/AIDS. They started out saying the problem was cost. Then we offered to discount the drugs and they said they were toxic. Then they questioned the link between HIV and AIDS," Deeb stated (Philadelphia Inquirer, 3/4). Some health experts feel that in pursuing the lawsuit, the drug firms have "damaged [their] standing." Henry Grabowski, professor of economics at Duke University, said, "I don't think it's good for their image, and I think that a lot of them will just eventually give these drugs away" (Nessman, AP/Washington Times, 3/5). In an interview this morning with NPR's Richard Knox, Oxfam's Justin Forsythe said that the trial is "bad PR" for the pharmaceutical industry (Knox, "Morning Edition," NPR, 3/5). AIDS activists maintain that the damage to human life in southern Africa will outweigh the profits and reputation lost by the companies. Phil Bloomer of Oxfam added, "Five thousand sick South Africans will be alive at the beginning of the week-long hearing and dead by the end of it. Twelve thousand people will have become infected with HIV during the same week, 1,400 of them babies" (MacGregor, London Independent, 3/5).
The Treatment Action Campaign has proclaimed today an "International Day of Action Against Pharmaceutical Company Profiteering," and a number of AIDS activist groups have gathered in South Africa and elsewhere to protest the lawsuit.
- South Africa: Protests will be held at the U.S. Consulates in Cape Town and Durban. In Pretoria, protesters will march from the High Court to the U.S. Consulate.
- United States: Protests will be held in Boston, Philadelphia, San Francisco and Washington, D.C. (TAC Web site, 3/5). ACT UP New York, the Health GAP Coalition and other groups involved in the Global Treatment Access Campaign New York will march to the New York headquarters of GlaxoSmithKline and Bristol-Myers Squibb. ACT UP is "demand[ing]" that the drug firms drop the lawsuit and "[c]ease all efforts to block access to generics" where brand-name drugs are not available or are "priced out of reach" of HIV-positive individuals and is asking the Bush administration to issue a "strong statement" condemning the litigation (ACT UP release, 3/2).
- Brazil: Brazilian activists will launch a campaign to make Brazilians aware of the lawsuit, as well as the United States' complaint against Brazil to the World Trade Organization.
- Canada: Protests will be held in Toronto and Vancouver.
- United Kingdom: Activists will hold marches and protests in Birmingham, Crawley, Kent, London, Manchester, Norwich, Glasgow, Leeds and Edinburgh. Groups will also picket the U.K. offices of GlaxoSmithKline.
- France: ACT UP/Paris has organized a protest in Paris' financial district.
- Germany: Activists will send open letters to the government asking for support for the South African government in the case.
- Philippines: Activists will protest and picket outside of the Department of Health in Manila (TAC Web site, 3/2).