WTO Delegates From Developing Countries Propose Clarifying TRIPS Language to Facilitate Access to Cheaper AIDS DrugsWorld Trade Organization delegates from 52 developing countries on Sept. 19 asked other WTO ministers to approve a proposal that would clarify language in the Trade-Related Aspects of International Property Rights (TRIPS) agreement to say that TRIPS would "not prevent governments from taking measures necessary to protect public health," including the production or importation of generic AIDS drugs. The countries submitted a draft of their proposal to WTO delegates gathered at last month's TRIPS Council Special Discussion on access to medicines. The draft called on the WTO members to "state, without qualification, that the TRIPS agreement shall not prevent governments from taking measures necessary to protect public health" (Oxfam/MSF/TWN release, 9/20). The proposal specifically asked the ministers to "recognize that the TRIPS text grants the WTO member states sufficient flexibility to enact health policies that ensure access to affordable medicines without necessarily constituting a violation of intellectual property rights." Governments of developing nations would also be permitted to engage in compulsory licensing and parallel importation. In addition, developing nations would be protected from "any legal action for alleged violations of the TRIPS accord, including the lawsuits" currently pending in several countries (IPS/Global Treatment Access Campaign release, 9/20).
U.S. Opposes Proposal
The countries' proposal, however, was blocked by the United States and Switzerland, whose arguments against the proposal were supported by Japan, Australia and Canada. During the special session, the United States presented a paper stating that "there is essentially no problem with the [TRIPS] agreement and no need for clarifications." The European Union "accepted some of the concerns" put forth by the developing nations, but "stopped well short of full endorsement" of their request (Oxfam/MSF/TWN release, 9/20). Paul Davis, coordinator of domestic and government affairs for the AIDS group Health GAP Coalition, said that if the United States and Switzerland had not opposed the countries' proposal, delegates at the session would have likely supported it. Such approval would have allowed the proposal to go into effect "more or less immediately" before being brought up during the WTO's Fourth Ministerial Conference, which is scheduled to be held Nov. 9-13 in Doha, Qatar. If delegates at last month's meeting had agreed to the proposal, it would likely have been ratified "without controversy" at the Doha summit, Davis stated. He added that the WTO ministers on both sides of the issue will likely try to work out a compromise proposal to present at the Doha conference. If they do not come to a compromise, the issue will be debated during the conference.
Subject of Intense Debate
AIDS activists have criticized the U.S.-backed paper, stating that the United States is putting profits over human lives by rejecting the countries' proposal. Davis stated, "It's pretty excessive that in the middle of a health catastrophe where 8,000 people a day are dying from a lack of medicine that [U.S. Trade Representative] Robert Zoellick is insisting on enforcement of monopoly protections on medicines in countries that constitute no market." Khalil Elouardighi, a spokesperson from ACT UP Paris, added, "The rich countries are still using the WTO to block accepted treatment and a lot of people in AIDS organizations are demanding that the WTO firmly support the rights of poor countries to use drug copies" (Meredith McGroarty, Kaiser Daily HIV/AIDS Report, 10/4). The aid group Oxfam U.K. said that blocking the countries' requests will further detract from the credibility of the patent system. An Oxfam statement said, "Given that the developing country paper is making extremely modest proposals, its rejection by the industrialized countries would bring the TRIPS agreement and the patents system further into disrepute, reduce the chances of consensus over a new round of trade talks and further damage the public standing of the WTO" (Oxfam statement, 9/20). In a joint press release, Oxfam, Medicins Sans Frontieres and Third World Network said that the handling of the issue of AIDS drugs will have larger implications for trade and public health. Cecilia Oh of Third World Network said, "The response of the industrialized countries to the problems with TRIPS is the litmus test for whether the WTO will put people's needs before the commercial interests of its most powerful members" (Oxfam/MSF/TWN release, 9/20). ACT UP Paris is urging WTO Director-General Michael Moore to encourage efforts to broaden poorer countries' access to cheaper AIDS medicines, stating that "it is the director's moral duty to respond to people with AIDS and ... NGOs, and to officially support developing countries' request for access to health" (ACT UP Paris release, 9/19).
Rounding Up Support for Generic Medicine Proposal
More than 35 AIDS and health groups, including ACT UP Paris, ACT UP New York, the Canadian HIV/AIDS Legal Network, Family Health International and the Health GAP Coalition, signed an open letter to the WTO calling on trade delegates to approve the developing nations' proposal. "In spite of recent assurances by certain political leaders, the practical policy of [the United States and the European Union] is to deny poorest countries, through covert economic threats, the right to implement legal provisions which they themselves use commonly in fields other than health. ... It is paramount that developing countries now be left to produce and distribute quality, affordable generic drugs in peace, without fear of economic retaliation," the letter states, adding, "Beyond the moratorium required by the African countries, the rules of the game need to be changed. The WTO cannot be allowed to block access to health" (ACT UP Paris Web site, 10/4). In addition, Oxfam U.K. features on its Web site its "Health Before Wealth" campaign, which encourages viewers to "demand [that] the WTO change its patent rules." The campaign includes an online petition to which readers can add their name and resident country (Oxfam U.K. Web site, 10/4).
Drug Companies Fight Back
The International Federation of Pharmaceutical Manufacturers Associations issued a press release in response to the special session criticizing the developing nations' proposal. Calling the proposal "inappropriate and unjustified," the organization cites statistics indicating intellectual property rights are "not a barrier to access to medicines." The release states that 95% of the medicines "considered by the World Health Organization as 'essential drugs' are non-patented," adding that the "real barriers" to access to health care in poorer countries include lack of funding for health services and problems with health care facilities and staff (IFPMA release, 9/21). Several IFPMA officials added that efforts to broaden TRIPS would prompt drug firms to decrease their research and development for AIDS drugs. Dr. Rolf Krebs, chair of the German drug firm Boehringer Ingelheim and president of IFPMA, said, "More flexibility in TRIPS would be disastrous for continuing investment in research and development on AIDS." Harvey Bale, director general of IFPMA, added that the number of AIDS drugs under development has declined over the past three years "as a campaign against the big [pharmaceutical] companies ha[s] unfolded." Bale and Krebs said that if patent regulations are eased for HIV/AIDS drugs, investors in drug firms would pressure the firms to "focus on other diseases that caused less controversy, like cancer" (Evans, Reuters, 9/19). The release states, "IFPMA calls on all [WTO] member states to take an active role in supporting strong implementation and enforcement of the TRIPS agreement and other relevant WTO actions to protect innovation and promote access to quality health care worldwide. The industry reaffirms that coordinated and sustainable efforts must be made to improve access to HIV/AIDS drugs. Measures which focus on weakening intellectual property rights in the name of 'improving access,' however, will actually divert decision-makers away from addressing the real barriers to access" (IFPMA release, 9/21).