Pubdate: Thu, 08 Mar 2001
Source: Guardian Weekly, The (UK)
Section: Page 1
Copyright: Guardian Publications 2001
Contact:  75 Farringdon Road London U.K EC1M 3HQ
Fax: 44-171-242-0985
Website: http://www.guardianunlimited.co.uk/GWeekly/front/
Author:  Chris McGreal in Pretoria

SOUTH AFRICA'S SICK AWAIT JUDGMENT DAY

Multinationals Go To Court Over A Law Aimed At Cutting The Cost Of Medicines

The world's largest pharmaceutical companies opened their lawsuit against 
the South African government's attempt to import cheaper anti-Aids drugs 
and other medicines on Monday by claiming that property rights were the 
central issue of the case.

But demonstrators outside Pretoria high court and across the globe said 
that what was really at stake was millions of lives of Aids sufferers.

Nearly 40 pharmaceutical companies claim that a new law which will permit 
the importation of generic drugs and patented medicines from suppliers at 
prices lower than those of the main drug giants breaches South Africa's 
constitution and international trade agreements. The South African 
government argues that it has the right to put the lives of the poor ahead 
of multinationals' profits. The outcome of the lawsuit could have important 
implications for access to cheaper medicines to fight Aids and other 
devastating diseases across the developing world.

The court's ruling will also have a significant impact on health care in 
South Africa, where nearly half of all health spending goes to pay for 
drugs, compared with less than 15% in Britain's national health service.

The pharmaceutical companies want the high court to strike down a law that 
permits the South African government to buy patented drugs from suppliers 
other than the manufacturer, or generic drugs from factories in India or 
Brazil, when patented medicines are "unaffordable" or there is a "health 
emergency" such as Aids. The legislation also bans the practice of paying 
incentives to doctors to prescribe expensive brand name medicines. The drug 
firms say they are not trying to justify unethical and protectionist 
practices but to defend their patents and to strike down a law they say is 
unconstitutional in part because it lacks clarity on issues such as what is 
"unaffordable".

But the director general of South Africa's health ministry, Ayanda 
Ntsaluba, accuses pharmaceutical companies of opposing ethical laws that 
are standard practice in Western countries.

"This case is about how we get affordable drugs to the majority of people 
in South Africa. There are drugs that we pay more for here than they do in 
Europe," he said. "It's also about how you prescribe and distribute those 
drugs. There are some very dubious practices and we want to put a stop to 
them. The drug companies oppose us and we've told them that the things they 
don't want us to stop in our own society would never be permitted in their 
own."

The Pharmaceutical Manufacturers' Association (PMA), representing 39 big 
drug companies, won a court injunction blocking the law's implementation 
three years ago by claiming that it breached international trade 
agreements, specifically the Trade Related Intellectual Property Rights 
(Trips), by in effect scrapping recognition of patents on medicines.

The Clinton administration backed the drug companies and put South Africa 
on a "watch list" of nations declared patent pirates. But over time the 
South African govern ment made a persuasive case that the law is permitted 
under Trips, and South Africa was dropped from the watch list. The Bush 
administration has gone further, and said it does not oppose the new 
legislation.

The drug companies have also been isolated by other foreign governments. On 
top of that the European Union and the World Health Organisation say they 
do not oppose South Africa's right to implement the new legislation. The 
World Trade Organisation has said that the laws do not infringe 
international patent protections.

On Monday protesters rallied against the drug companies across South Africa 
and in other countries, including Australia, Canada, France, Germany, 
Britain and the United States. The leadership of South Africa's powerful 
trade union confederation, Cosatu, led a march of several thousand people 
to the US embassy in Pretoria.

However, the head of the PMA, Mirryena Deeb, said: "There is lack of due 
process. The minister can make a decision that a drug is too expensive and 
the drug companies have no right to defend themselves. This law is 
arbitrary and gives the health minister too many powers . . . The state 
cannot know what it costs to treat HIV-positive people because it has never 
asked us. Three years ago GlaxoWellcome [which merged with SmithKline 
Beecham last year to form GlaxoSmithKline] approached them and offered a 
world best price. The government said it was too expensive. Glaxo said: 
'Tell us what you can afford.' The government never came back."

But Dr Ntsaluba argues that, even with the discounts offered to other 
governments, his own could not afford to buy many brand-name drugs, 
particularly those used for treating HIV. The government has pointed out 
that drugs such as the antibiotic Ciprofloxican, considered an "essential 
medicine", cost South Africa's public health sector 75 cents for each pill, 
and the country's private health care providers more than $4.50 a tablet. 
If the new law is implemented, a generic of the drug could be imported from 
India for just 6c a pill.

If the legislation comes into force, it will have a big impact on the 
treatment of South Africa's 4m people with HIV - about 10% of the 
population - and other serious diseases.
- ---
MAP posted-by: Beth