[Ip-health] An explanation to Al Jazeera’s 101 East, “Fake Pills: A Fatal Fraud” episode aired on April 9, 2015

Kannikar Kijtiwatchakul kakablueblue at gmail.com
Thu Apr 23 22:45:46 PDT 2015

*An explanation to Al Jazeera’s 101 East, “Fake Pills: A Fatal Fraud”
episode aired on April 9, 2015 *

It is well known among those involved in the promotion of access to
medicine, domestically and internationally, that large transnational
pharmaceutical corporations have, over the past decade, been trying to use
concerns about fake drugs to stir up confusion among the public, aiming to
attack their competitors - generic drugs.

Strategies deployed by these corporations have been carried out legally and
illegally, out in the open and in secrecy. These strategies include, for
instance, using the World Health Organization (WHO) and bilateral and
multilateral trade negotiations as platforms to revise the definition of
“fake drugs”; lobbying politicians and civil servants to push for
amendments to legislation in various countries; or even funding artists in
developing countries to hold art exhibitions which are claimed to be for
consumer protection but, in reality, come with the hidden agenda of hyping
the “fake drug” issue.

To alter the definition of “fake drugs”, the strategies have been used to
create confusion – making the public think that the issue of low-quality
and unsafe drugs is the same issue as the infringement of intellectual
property rights such as trademarks, patents and copyrights, when in truth
the two are separate problems that require different solutions. Interviews
on such matters can thus be manipulated by transnational pharmaceutical
corporations to serve their objectives – as has already happened to me.

An Al Jazeera assistant reporter named Ying contacted me around the end of
February, asking me to give an interview on the issue of fake drugs for the
television show 101 East. Like a number of scholars who refuse to give
interviews on the issue due to doubts about the standpoint, the accuracy of
the report and the professionalism of the communication officer to convey
all aspects of the news topic, I initially declined.

However, when the news agency coordinator explained to me that the one who
will be in charge of the 101 East news documentary is Trevor Bormann.  This
skilled ABC News (Australia) ex-reporter has been following the issue of
the dangers of drugs with fake brand names, particularly those manufactured
and distributed by Pfizer, but has not yet found a case where a consumer
has been affected such drugs as claimed and thus is looking for another
side to the story to balance the claims by Big Pharma – I thought giving an
interview for this news documentary would be a good opportunity to give the
public the complete picture of the issue.

The interview was then held on March 2, 2015. I explained the situation and
provided information and evidence, from domestic and international
experience, of the strategies transnational pharmaceutical companies
utilize to discredit the quality and legality of generic drugs.

Over the past years, transnational pharmaceutical companies have tried to
use different strategies to extend intellectual property protection beyond
what is legally specified. Some brief examples:

-         Attempting to extend the definition of fake drugs, substandard
drugs and spurious drugs, defined in the Drug Act as low-quality and
unsafe, to include counterfeit drugs that violate intellectual property
rights such as trademarks, copyrights and patents.

-         Trying to lobby related organizations. In August 2007, the
Department of Intellectual Property and an association of transnational
pharmaceutical companies confused the Thai Food and Drug Administration
(FDA) into signing a Memorandum of Understanding on counterfeit drugs which
extended the definition of counterfeit drugs and categorized them as fake
drugs along with low-quality and unsafe drugs. The FDA eventually refused
to sign the particular Memorandum of Understanding.

-         Inserting this content into FTA negotiations with the US and EU,
countries where transnational pharmaceutical companies are politically
highly influential.

-         Holding an exhibition in an art gallery in Bangkok using
ambiguous definitions of fake drugs. The exhibition organizer was
eventually pressured into releasing an explanation clarifying that the
meaning of fake drugs does not include generics.

The above examples are the same tactics used when transnational
pharmaceutical corporations tried to pull strings and make the WHO include
counterfeit drugs in its definition of fake drugs, hoping that each
country’s FDA, whose sole responsibility concerns consumer protection and
monitoring the quality and safety of drugs and health products, would
additionally take charge of suppressing the infringement of intellectual
property, privately owned property, using the country’s tax money. This
attempt has always been frowned upon by society.

Moreover, there has been an international attempt to include the above
definition of ‘fake drugs’ in the Anti-Counterfeit Trade Agreement (ACTA).
However the failure of the attempt is evident when the Council of Europe
resolved not to approve of ACTA due to its impact on access to medicine and

Article 73 of the Drug Act 1967 defines “fake drugs” as follows:

1. A drug or substance which is wholly or partly an imitation of a genuine

2. A drug which shows the name of another drug or a false expiry date

3. A drug which shows a false name, mark or location of the manufacturer

4. A drug which falsely claims to follow a registered formula

5. A drug which has not been manufactured according to standards with at
least 20 percent more or less active ingredient than the registered formula

>From the definition, substandard and inefficacious drugs primarily concern
the quality of drugs and are related neither to drugs that imitate brand
named ones nor to counterfeit drugs which the transnational pharmaceutical
industry wishes to include in the definition of fake drugs.

The important question is: who will benefit from the confusion caused which
makes people unable to differentiate between fake drugs from a quality and
safety aspect and counterfeit drugs which are infringements of intellectual
property rights such as trademarks, copyrights and patents?

The answer is transnational pharmaceutical companies who aim to keep
quality and lawful generic drugs from competing in the market by instilling
misconceptions and fear in society in order to create societal pressure on
policy makers to amend the laws and make government bodies take
responsibilities outside their existing roles.

In reality, intellectual property is all about business and the private
sector; using limited public resources to protect private and individual
economic rights would be inappropriate.

Transnational pharmaceutical companies benefit from exaggerated fears about
generic drugs that have been instilled in the public; this fear had led to
the seizure, confiscation and destruction of generic drugs as well as
attempts to amend laws when the presence of generic drugs in the market
should actually help promote competition and decrease drug prices. Having
generic drugs compete in the market will create national health system
security, save and raise the standard of living, promote national medicine
security, and is more righteous and important than protecting the
commercial benefits of transnational pharmaceutical companies.

There was an incident where generic drugs manufactured in India were being
sent to South Africa and South America, but were seized and held eighteen
times while going through the Netherlands merely due to speculation that
the drug may have violated patent rights. This incident caused public
health problems in destination countries which are in need of medicines,
particularly those for infectious diseases, HIV/AIDS and cancer. The
incident also hurt the business of Indian manufacturers.

Consequently, in the interview with Trevor Bormann, I put emphasis on the
ways to solve existing problems; problems with low-quality and unsafe drugs
are big problems in many countries where no strong organization exists to
inspect quality and safety. On the other hand, while we have the FDA and
the Department of Medical Sciences who are responsible for that role in
Thailand, most of our quality and safety problems stem from illicitly
traded drugs that have not been registered with the FDA and those sold over
the internet. Solving the issue of quality and safety is crucial to protect
people’s lives and is under the direct responsibility of the FDA. The FDA
needs to increase its capacity in the monitoring and control of this issue
rather than expanding the definition of fake drugs to cover counterfeit
drugs – an action whose beneficiary is not the general public. Further, the
government should not go along with the attempt to use police officers as
tools to protect the benefits of pharmaceutical companies.

As for the solution for fake and low-quality drugs in developing countries,
making drug prices more affordable will help increase access and prevent
patients from seeking drugs from illicit sources; to achieve this, entry
into the market of generic drugs as well as capacity building and
efficiency enhancement among institutions involved in different countries
are crucial. Rather than increasing penalties to protect intellectual
property rights, which is irrelevant to this matter, institutions must be
able to better inspect drugs and protect people, as both brand name and
generic drugs are equally susceptible of being of low quality. I also
encourage transnational pharmaceutical corporations to give priority to
research and development of new medicines instead of solely conducting
market research and research on ways to extend patent terms through
so-called ‘evergreening patents’ or spending large sums of money to promote
unethical drug sales.

However, the 101 East program episode on “Fake Pills: A Fatal Fraud” that
was aired on April 9
regrettably failed to bring up the issues and solutions I discuss above but
presented a news documentary in a fashion that suits the interests of
transnational corporations.

It must have been my mistake to believe there still exists good mass media
that reports evidence-based information from all aspects for audiences to
make their own decisions rather than merely serving the agenda of
transnational pharmaceutical corporations.

Kannikar Kijtiwatchakul

Researcher, Thai Drug Monitoring Program, Chulalongkorn University

kakablueblue at gmail.com +66 89 500 3217

April 15, 2015



Kannikar Kijtiwatchakul

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