[Ip-health] As EU-India free trade talks get closer to resuming, MSF warns access to medicines under threat

Joanna Keenan joanna.l.keenan at gmail.com
Mon Jan 18 06:59:37 PST 2016

As EU-India free trade talks get closer to resuming, MSF warns access to
medicines under threat

Brussels/New Delhi, 18 January 2016—As reported in Indian media, senior
officials from the European Commission (EC) and India are expected to meet
today in Brussels to hold talks on resuming negotiations on the proposed
EU-India free trade agreement. The international medical humanitarian
organisation Médecins Sans Frontières (MSF) warned that India must resist
European Union pressure to include harmful provisions on intellectual
property that could restrict access to medicines for people in developing

EU-India free trade agreement (FTA) talks began in 2007 and have largely
stalled since 2013 because of several contentious issues including
intellectual property rights. These include provisions that could restrict
the production, sale and export of affordable life-saving medicines made in
India, upon which millions of people in developing countries rely.

After fierce pressure from groups of people living with HIV, hepatitis C,
cancer and other life-threatening diseases, some of the worst provisions
such as extensions to patent terms and data exclusivity have been removed
from the negotiating text.

However, a range of ‘intellectual property enforcement’ measures proposed
in the FTA could have harmful effects on the production and distribution of
generic medicines. These measures range from legitimate medicines being
blocked from leaving India on their way to people in developing countries
if a multinational company claims that their intellectual property (IP) is
being infringed upon, to third parties—such as treatment providers—being
embroiled in court cases simply for buying or distributing generic
medicines. Some of the harmful IP enforcement provisions are similar to
those included in the Anti-Counterfeiting Trade Agreement (ACTA), a
controversial, pluri-lateral treaty, that did not include India, and which
was abandoned by the EU thanks to intense public and political scrutiny.

“As the Indian government considers resuming trade negotiations with the
EU, we urge both sides to think about the lives that hang in the balance if
access to affordable generic medicines is shut down or blocked due to IP
enforcement measures,” said Leena Menghaney, Head – India, MSF’s Access
Campaign. “Millions of people around the world depend on affordable
medicines made in India to stay alive, and they can’t afford to have
cumbersome trade rules stand in the way of the treatment they need.”

An equally disturbing feature in the proposed investment chapter of the
EU-India FTA is the inclusion of intellectual property within the
definition of investment, meaning that the rules of the FTA could be used
by pharmaceutical companies to sue the Government of India in
non-transparent, international arbitration - outside of domestic courts -
under the controversial investor-state dispute settlement (ISDS) mechanism.
For example in 2012, the pharmaceutical company Eli Lilly used the ISDS
mechanism to launch a legal attack upon the Canadian government for
rejecting several of its trivial evergreening patents on medicines, though
the courts had independently revoked the patents.

“Both India and the EC should put negotiations on the investment chapter on
hold. The EC can no longer legitimately demand that India sign an
investment chapter with the controversial outdated ISDS mechanism that the
EC is not willing to sign on to itself in the Trans-Atlantic Trade and
Investment Partnership (TTIP)”, said Helle Aagaard, EU Policy and Advocacy
Advisor. “While the reformed ISDS system proposed by Trade Commissioner
Malmstöm promises improvements in some areas, it still considers
intellectual property as an investment which threatens access to medicines.
Countries must always be free to regulate the patent system so they can
protect public health and access to affordable medicines without fearing
that big pharmaceutical companies will sue them for doing so.”

MSF relies on affordable medicines made in India to treat more than 200,000
people around the world living with HIV, and uses Indian generic medicines
to treat many other diseases and conditions, such as malaria and

Background documents:
Letter from MSF to the Indian Prime Minister regarding access to medicines
and the EU-India FTA, March 2013

Joanna Keenan
Press Officer
Médecins Sans Frontières - Access Campaign
P: +41 22 849 87 45
M: +41 79 203 13 02
E: joanna.keenan[at]geneva.msf.org
T: @joanna_keenan


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