[Ip-health] As Pharma Eyes Patent Changes In South Africa, A Government Minister Cries 'Genocide'

Claire Cassedy claire.cassedy at keionline.org
Tue Jan 21 13:42:32 PST 2014


As Pharma Eyes Patent Changes In South Africa, A Government Minister Cries

1/18/2014 @ 5:33PM
Ed Silverman

Once again, South Africa is shaping up as a key battleground for the
pharmaceutical industry and its hopes for protecting patents. And the
latest skirmish is threatening to turn into yet another public relations
problem for drug makers, which are being accused by the Health Minister of
planning “genocide” against his citizens.

The newest conflagration can be traced to a draft policy issued last
September by the South African government to revise rules for governing
intellectual property. If implemented, the guidelines would allow for
greater production of low-cost generics, which the government wants to make
more widely available.

Patient advocacy groups had complained that South Africa has not amended
its patent laws to incorporate or implement the 2001 WTO agreement on Trade
Related Aspects of Intellectual Property Rights, or TRIPS, which offers
compulsory licensing as an option to countries to make patented drugs more

The initiative, however, has struck a sensitive nerve with drug makers,
which have already fought some celebrated battles over patent rights
elsewhere – notably, in India, where the government has the pharmaceutical
industry in knots over its application and interpretation of patent laws
and international trade rights.

The draft policy comes more than a decade after South Africa figured
prominently in the battle over AIDS drugs. Several global drug makers filed
a lawsuit to prevent the country from allowing low-cost generics of AIDS
medicines to be made, a move that backfired when the industry encountered
widespread criticism for a strategy that emphasized profits at the expense
of a growing number of sick people.

This is yet another reason why industry reaction to the draft policy is
being closely watched. And a recent proposal made by a Washington, D.C.,
lobbying firm to industry trade groups in the US and South Africa is
lending an air of déjà vu. The proposal, which would cost about $450,000,
according to a leaked e-mail from a Merck executive, spells out a somewhat
covert plan for blunting what could become a “weak intellectual property

“If the principles in the draft (policy) are adopted,” the proposal warns,
“not only with South Africa become less hospitable to the life sciences
sector, it may also provide the model for other developing nations, inside
and outside Africa, including such important aspiring economies as India
and Brazil.

“…South Africa is now ground zero for the debate on the value of strong
intellectual property protection. If the battle is lost here, the effects
will resonate… Without a vigorous campaign, opponents of strong
intellectual property will prevail – not just in South Africa, but
eventually in much of the rest of the developing world.”

The proposal suggests forming a coalition called ‘Forward South Africa’
that would be directed from Washington and work toward delaying and,
ultimately, modifying the draft policy. The coalition would try to
emphasize a connection between wealth and health – strong intellectual
property rules can bolster the economy.

At the same time, the proposal also suggests pushing back against
non-governmental organizations by arguing that the central health issue in
South Africa is poor infrastructure, and not drug pricing or a subsequent
lack of access to medicines. In this way, the nature and tone of the debate
would be changed (here is the proposal).

The proposal never mentions anything about withholding access to medicines,
directly buying influence or any illegal activity. Just the same, the
initiative prompted criticism from such advocacy groups as Doctors Without
Borders and Treatment Action Campaign (see here and here).

But the harshest response came from South African Health Minister Aaron
Motsoaledi, who accused multi-national drug makers of conspiring against
the country. “This document can sentence many South Africans to death. That
is no exaggeration. This is a plan for genocide,” he told The Mail &

“They are not hoping to influence government. They are hoping to influence
society to turn against government. If you read carefully what they are
saying, they want to prove to patients that the lack of access to medicine
has nothing to do with intellectual property, but everything to do with
incompetence of the government.”

For their part, the trade groups have quickly distanced themselves from the
proposal, which was made by Public Affairs Engagement, a firm that is
headed by former US Ambassador James Glassman, a former undersecretary of
state for public diplomacy and public affairs in the George W. Bush

For instance, the Innovative Pharmaceutical Association of South Africa
issued a statement yesterday saying it has “not engaged” PAE to “lobby on
intellectual property or any other matter… PAE submitted a proposal for a
campaign, which was reviewed and subsequently rejected by IPASA members,
and no payment or pledge has been made in any respect.”

Similarly, the Pharmaceutical Research & Manufacturers of America denied
“engaging outside parties to assist us, (but) we will do our best to make
sure that our voice and others who believe that strong intellectual
property protections are in the best interest of South Africa are part of
the dialogue. Conducting advocacy of this nature is a way of participating
in the democratic process.”

However, a January 10 e-mail written by Michael Azrak, the Merck managing
director in South Africa, to two dozen other drug makers, including
AstraZeneca AZN +1.99%, Johnson & Johnson JNJ -1.08%, Pfizer, Roche, Sanofi
and Eli Lilly, says this: “As we agreed at the last board meeting in
December, we have moved ahead in identifying a high calibre consultancy
group to work with us. The group selected is Public Affairs Engagement”
(here is the e-mail).

Both trade groups added that they support the “broad objectives” found in
the South African draft policy, and that may be so. But even though drug
makers may have legitimate concerns about patent protections, they will
have to find different ways to get their messages across without seeing
their plans backfire and cause the sort of public relations problems that
previously haunted them for years to come.

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