[Ip-health] The Treatment Action Campaign (TAC) calls on government to amend South Africa to right to health

Riaz K Tayob riaz.tayob at gmail.com
Wed Nov 16 23:49:23 PST 2011

[With currency risk (i.e. volatile currencties), inadequate budgets, 
whimsical aid donations (subject to declines perhaps) the excellent and 
timely statement below needs to be enhanced with a call for regionally 
distributed production capacity including APIs. And why is no one 
looking at the functioning of WHO's HIVResNet (the HIV resistance 
network) which is a source of biodiversity for work on 2nd and 3rd line 
treatments? If Avian and Swine Flu is anything to go by, the US AND THE 
WHO are less than honest brokers on such biodiversity and the "benefits" 
that are are derived from it including "privatisation" of the knowledge 
gleaned from such biodiversity... And perhaps TAC could consider 
strengthening the call by some US groups for a review of Super 301, 
which renders our legal rights under international trade law illegal... ]

Riaz Tayob
SEATINI South Africa

    *Press release *

/16 November 2011/

    *The Treatment Action Campaign (TAC) calls on government to amend
    South Africa’s Patents Act and protect our right to health*

(Cape Town) - Ten years ago this week, member countries of the World 
Trade Organisation (WTO) signed the Declaration on the TRIPS Agreement 
and Public Health (“the Doha Declaration”). Members were gathered in 
Doha to discuss valid concerns that an international agreement to 
protect intellectual property – the Agreement on Trade-related Aspects 
of Intellectual Property Rights (TRIPS)[1] <#_ftn1> - would undermine 
the ability of countries to achieve the right to health.
The Doha Declaration confirmed provisions within the TRIPS agreement 
that countries could use to protect public health. It states that the 
TRIPS agreement “should not prevent Members from taking measures to 
protect public health... and should be interpreted in a manner 
supportive of WTO Members’ right to protect public health and, in 
particular, to promote access to medicine for all.”
In order for countries to use the public health flexibilities contained 
within the TRIPS agreement and the Doha Declaration, they must be 
enacted into national legislation. “Despite significant health burdens 
in the decade since the Doha Declaration, very few developing countries 
have amended their laws to fully utilise the flexibilities to protect 
health,” said Mara Kardas-Nelson of MSF’s Campaign for Access to 
Essential Medicines. “While it is the responsibility of individual 
states to ensure that TRIPS flexibilities are included within national 
law and utilized to protect public health, we have also witnessed 
consistent and aggressive bullying by the European Union, the United 
States and pharmaceutical companies to prevent developing countries from 
using these life-saving flexibilities.”
Middle-income countries were given until 2005 to enact TRIPS-compliant 
national legislation which ensured 20-year patent protection on 
pharmaceuticals. “If it had not been for this window period where 
middle-income countries could produce generic versions of antiretroviral 
therapy (ART), India could not have produced high-quality, low-cost ART. 
As a result of generic competition, we saw the cost of a first-line ART 
regimen drop by 99% in a decade. Without this price decrease, millions 
of people would not have access to these life-saving drugs,” said Dr. 
Gilles Van Cutsem, MSF’s Medical Coordinator for South Africa and 
Lesotho. “But that window period is now closed and we are deeply 
concerned about the lack of options to bring generic versions of new 
medicines to the market. Without generic competition, we’re seeing the 
cost of second- and third- line ARVs up to 20 times more expensive than 
first-line ARVs.  It is vital now more than eve r that countries use all 
of the flexibilities available to them to protect public health.”
South Africa currently provides patent protection beyond what is 
required by the TRIPS agreement. “There are a number of amendments that 
South Africa must make to its Patents Act to promote public health,” 
said Catherine Tomlinson, a senior researcher with the TAC. “Unlike 
South Africa, India, Brazil and Thailand, among others, have used 
flexibilities allowed for under TRIPS to curb excessive patenting of 
pharmaceuticals and promote public health. While South Africa granted 
2,442 pharmaceutical patents in 2008 alone, Brazil only granted 278 
pharmaceutical patents between 2003 and 2008.”
The consequences of South Africa’s strict patent protection are high 
medicine costs and the delayed availability of affordable generic 
medicines.” Mediscor[2] <#_ftn2> reported in their 2009 and 2010 
Medicines Reviews that medicine expenditure increased 25.2% between 2008 
and 2010, while medicine use only increased 5.8%.
The Doha Declaration also confirmed the right of countries to issue 
compulsory licenses and to determine the grounds on which they are 
granted. Despite the high number of patents granted, South Africa has 
never issued or threatened to issue a compulsory license. This is in 
part due to an overly burdensome procedure for issuing a compulsory 
license. Under TRIPS, South Africa has the flexibility to set up a 
simpler, more workable procedure for issuing compulsory licenses. South 
Africa could use compulsory licenses to access generic versions of 
patented medicines, in cases where prices are prohibitively expensive.
Under the Constitution, the South African government is obligated to 
take reasonable legislative and other measures, within its available 
resources, to achieve the progressive realisation of the right to have 
access to health care services, which includes access to medicines. 
Given the massive health needs of the country, government should amend 
South Africa’s Patents Act to take full advantage of provisions in the 
TRIPS agreement, including but not limited to those outlined in the Doha 
Declaration, to protect public health.
President Jacob Zuma recently signed on to a joint declaration[3] 
<#_ftn3> with the presidents of India and Brazil recognising that the 
impact of intellectual property on health, access to drugs and prices 
can best be tackled by enabling the scaled up production of generic 
medicines through the full use of flexibilities provided by the TRIPS 
agreement, in accordance with the Doha Declaration. However, we have not 
yet seen any concrete indications that government will take steps to 
fulfil this commitment by enacting TRIPS flexibilities into national law.
“Why is our government putting the profits of pharmaceutical companies 
ahead of our lives?” asked Nokwanda Pani, a TAC Treatment and Prevention 
Literacy Practitioner from Khayelitsha.
/ For further comment and more information, please contact Catherine 
Tomlinson on 021 422 1700./

[1] <#_ftnref1> TRIPS was adopted in 1995. Developed countries were 
required to immediately provide intellectual property protection in line 
with TRIPS. Middle income countries were given until 2005 to update 
their laws.
  Mediscor is a pharmaceutical benefit management company based in South 
Africa that manages the medicine benefits of over 1.5 million medical 
aid beneficiaries.
[3] <#_ftnref3> Joint Declaration on India-Brazil-South Africa (IBSA) 
Fifth Summit. 18 October 2011. 

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