March 5, 2001

2:05 AM

Drug Manufacturers to african AIDS patients:die."Forty big pharmaceutical companies are trying to stop the South African Government from importing cut-price versions of well-known [AIDS] drugs.The multi-nationals say that would threaten their patent rights." The milk of human kindness... And BTW before anyone comments on how the drug companies have to make profits to fund further research and provide new drugs, since when finding ways to provide cheaper drugs stifles innovation?
posted by talos (23 comments total)

you know, sometimes i want to just go bury my head in the sand and disown the human race. this is awful however you look at it.
posted by pikachulolita at 2:25 AM on March 5, 2001

Take the "I" out of "patient", and you get a rather overdone piece of wordplay. Nonetheless.
posted by holgate at 2:45 AM on March 5, 2001

Hmmm... I discussed this over pizza with some interface design buddies of mine the other night. It seems to me that this is a perfect example of the "new colonialism" third world countries suffer under these days.
posted by frog at 3:50 AM on March 5, 2001

I wonder how many people know what it takes to develop a drug? I think the patent issue is a legitimate one, even if it makes the drug cos look like monsters. I'm not sure why anyone would invest tens or hundreds of millions of dollars on a new product - money that has to be invested years before possible marketability - without a robust patent system. These aren't superficial one-click style patents - they're exactly what the patent system was designed to encourage - major investment in things that might not make a dime, ever.

There are definitely solutions possible that take the obvious needs of poorer states into account - and the pharma companies should be most strongly encouraged to work on these. But at what cost (and I'm not talking about money)?

The point isn't to give pharma companies free rein. The point is to get people the drugs they legitimately need while safeguarding future research in a world in which even just looking at a new indication for a drug that's been in use for 50 years costs millions - and all this while non-corporate research money has been cut to the bone (there's practically no significant non-corporate drug research any more). You can't do that by developing policies on the fly, on an ad-hoc basis that runs roughshod over a country's own laws.
posted by mikel at 4:01 AM on March 5, 2001

I wonder if it would be possible to get pharmaceutical corporations to agree to set their prices, not as a fixed amount, but as a certain percentage of the average income of the nation within which it is sold? Signees would have to decide that drug X is worth percentage Y of any person's income.

I mean, if they asked an American to pay what amounts to X percent of the average American's income for a certain medicine, then they would have to ask a Zimbabwean to pay what amounts to X percent of the average Zimbabwean's income. If the average American makes (to pick a number out of the air) 10 times what the average Zimbabwean makes, then the drug in Zimbabwe would cost 1/10th what it costs in the US.

If the average income in a country was very low, of course, then the cost of the medicine to a patient there would be almost zero, an amount that aid organizations could cover.

And if the result was that the corporations were losing money in some poorer countries, governments (collectively) would agree to compensate them for the cost of materials and distribution as part of standard aid payments to poorer countries.

Does that sound workable?
posted by pracowity at 4:04 AM on March 5, 2001

It sounds beautiful, but not workable. It's similar to the soft-drugs legalization we have here in Holland. Because of it, we get a lot of so called "hash tourists" who come here to buy their stash cheap.

The model you describe will have a similar effect, hardly desirable.

Besides, you'd never get the pharma dudes to agree on something like that. Ever.
posted by frog at 4:19 AM on March 5, 2001

According to James Love's report on the Pharm-policy list, the drug companies' case is much broader than just an attempt to to block compulsory licensing. Apparently the most important immediate issues are parallel imports and generic substitution.

The term "parallel imports" applies when goods are bought from a licensed distributor in one country, and then resold in another country. It is essentially an attempt to do international comparison shopping for the best price. The drug companies want to prohibit this in South Africa.

"Generic substitution" is a normal part of current U.S. practice: it allows pharmacists to substitute a (legally produced) generic equivalent for a brand-name drug. The drug companies' case in South Africa apparently argues that this is contrary to the WPO TRIPS rules on trademarks.

In discussing the issues, folks might want to separate compulsory licensing from parallel imports and generic substitution: some people who don't like the first, might think that the second and third are just fine.

posted by myl at 4:50 AM on March 5, 2001

The drug companies have agreed to sell the anti-Aids drugs for cost in South Africa. The SA government don't want to know because the cost-price the western drugs companies have quoted them is more than double what the SA govt can buy the drugs for from Indian generic suppliers. I suppose that's down to the cost of producing in Europe or the US or wherever as against in India.
posted by pk1000 at 5:38 AM on March 5, 2001

If it's simply an issue of the milk of human kindness, why aren't we protesting the fact that the US isn't buying these drugs for Africa? Why isn't the headline here "US to African AIDS patients: die"? Or "American Yuppies to African AIDS patients: die?" Why is it solely the responsibility of the pharmas instead of everyone's?
posted by rodii at 5:44 AM on March 5, 2001

Paragraph 2: Multinational pharmaceutical companies.
posted by hijinx at 6:46 AM on March 5, 2001

There are two issues here: 1) the right of a government to circumvent trade laws in cases of national emergency (and the AIDS catastrophe in S.Africa certainly qualifies as one) 2) The, absolutely legal even by WTO standards, resort to compulsory licensing laws something the US has itself in used in the past.
Does anyone have the slightest doubt that if an epidemic of such proportions hit the US or the EU there would have been immediate emergency laws and procedures in place that would guaranty the right of every citizen to free access to medicine? Is there any doubt that governments would find ways to circumvent any objections by the drug manufacturers, of which there wouldn't be any because of the really bad PR that allowing-White-people-to-die-in- order-to-make-a-buck entails...
For an extensive argument against current WTO and drug co. policies check out this Oxfam report (in .pdf format).
As for the US (and Western in general) role and lack of action on this, no quarrel from me. Indeed the US has aggressively supported the interests of pharmaceutical companies in the WTO against 3rd World protests, so the US government shares responsibility for the present situation in S.Africa... As for buying the needed drugs through charity, no objections there either, but I would hope that, when faced with a crisis, a sovereign country can rely on more than just charity.

posted by talos at 7:35 AM on March 5, 2001

Talos, what's up with that quote in the original post? Where's it from? Are those your words?

They're true... what South Africa wants to do would threaten the drug companies' patent rights. That's their property, those patents. Don't we have a right to defend our property?

And what's this about cheaper drugs and stifling innovation? Who's not offering cheaper drugs?

This article in the Washington Post is about Bristol-Myers Squibb's $100 million program called Secure the Future, how it developed and the obstacles it faces. The program's director, Mark Ahn, said his first reaction was "why don't we just give the drug?", but that after consulting with UNAIDS and other health organizations, they decided that "prevention and education is the first and most impactful tier. Then voluntary testing and counselling. And then treatment. In that order."

The article talos posted is about companies protecting their property and their rights, not about them turning their backs on sick Africans.

There was an episode of The West Wing a few weeks ago that said even if the drug companies donated all the drugs needed by every African, it wouldn't solve the problem because so many Africans don't own clocks and wristwatches and so cannot take the complex cocktail of pills on schedule.

pracowity, your plan would only work if the profits lost to cheap drugs in Africa would be recouped by high prices in wealthier countries. How should an American dying of AIDS feel about having to pay 10 times more for the same medicines, just because he lives in America? America's a wealthy nation, sure, but $10,000 per year is a burden for anyone with AIDS.

Oxfam's mission statement says poverty is an injustice. What does that mean? Poverty is wrong? Immoral? A violation of a person's rights? It is a violation of someone's rights that they don't have money or material goods? What???
posted by techgnollogic at 8:32 AM on March 5, 2001

They're true... what South Africa wants to do would threaten the drug companies' patent rights. That's their property, those patents. Don't we have a right to defend our property?

One might well argue that intellectual property isn't the same as physical property, and that the idea of "property protection" shouldn't apply to intellectual property the way it does to physical property. If one wasn't willing to go that far -- which the WTO obviously isn't going to do -- one might still note the existance of eminent domain, which allows governments to seize physical property after giving fair compensation to the owner.

Article 31 of the TRIPS Agreement has very explicit language allowing this sort of eminent domain over intellectual property. It is

only... permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and... such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.

(Emphasis added.) I understand why pharmaceutical companies would be upset about this, but South Africa is playing within the rules.

Brazil (which didn't allow patents on medicine until the mid-Nineties) licensed local manufacturers to turn out generic versions of certain AIDS drugs which were unprotected by patent in Brazil, and pharmaceutical companies were upset about that, too, to the extent of getting America to threaten trade sanctions as a result of Brazil's perfectly legal actions. Brazil, meanwhile, developed what's probably the best AIDS-related public health infrastructure in the Third World, and it wouldn't have happened without cheap, generic AIDS drugs.

From what I've read recently in the Wall St. Journal and the New York Times, the pharmaceutical industry has moved towards being less antagonistic in Brazil (offering local licensing and the like) which is encouraging, as I do understand that they need to recoup huge fixed overhead of R&D. Really. I'd like to see Merck, Pharmacia, whoever, thrive, and continue to pour money into research.

But Third World countries usually don't pay as much for drugs as First World countries, simply because they can't; the market already addresses this in many ways -- it's one of the reasons that Americans, without a national health care, pay more for prescriptions than Canadians, for instance. America is a good market for the pharmaceutical companies to make their money. Brazil and, especially, sub-Saharan Africa, aren't. You'll note that malaria research hasn't been a top priority, for instance.

And for Brazil and many countries in Africa, the AIDS crisis is very, very real -- in Malawi, one million people are HIV-positive. I'd say that qualifies as a "national emergency or other circumstance of exteme urgency."
posted by snarkout at 9:08 AM on March 5, 2001

There was an episode of The West Wing a few weeks ago that said even if the drug companies donated all the drugs needed by every African, it wouldn't solve the problem because so many Africans don't own clocks and wristwatches and so cannot take the complex cocktail of pills on schedule.

I don't want to get into the dubious assertation that Africans are incapable of dealing with a schedule (or the idea that The West Wing is a good source of news), but Brazil managed to deal with this by bulking up its public health programs with just this problem in mind. South Africa probably could as well, but you're right that the rest of sub-Saharan Africa's medical infrastructure isn't at a level to support the kind of programs that are needed to make sure very sick people can manage to take a number of different medicines at regular intervals.

pracowity, your plan would only work if the profits lost to cheap drugs in Africa would be recouped by high prices in wealthier countries. How should an American dying of AIDS feel about having to pay 10 times more for the same medicines, just because he lives in America? America's a wealthy nation, sure, but $10,000 per year is a burden for anyone with AIDS.

Well, Americans already pay two to three times as much on many drugs as other North American and European countries. This is part of the pharmaceutical industry's business model.

Sorry for rambling on so.
posted by snarkout at 9:19 AM on March 5, 2001

Great post, snarkout. I think that you point to a possible solution as well. The Brazil experience is instructive, for sure, because their infrastructure is, by most accounts, excellent. The question is, can South Africa get there and not trample on patents?

I would like to think that what the pharmaceutical companies need is formal recognition of their patents - and if they get that, they'd in practice work with the government on a solution that nonetheless serves to address the issue adequately. Maybe I'm dreaming, but I think that something along those lines would make sense.

At the same time, there are very real issues with drug treatments and AIDS, and I'm very suspicious of a South African government who is very likely being just as manipulative as they are accusing the pharmas of being. It's more than possible that their sound and fury is intended to distract attention on their mishandling of the crisis and to download the blame for the current situation to big bad multinationals. The South African government has been extremely negligent about this issue for years - so to think it's as simple as "they want to support their ill people" is probably a mistake.
posted by mikel at 9:26 AM on March 5, 2001

This is part of the pharmaceutical industry's business model.

One could just as easily say that it's a reasonable response to the insane private insurance model of healthcare in the US. The market will bear those prices in the US, so the prices rise. The market won't bear those prices in Canada, so they are lower as a result.

posted by mikel at 9:30 AM on March 5, 2001

First about the quotes:
I took them from the BBC article I posted at the time! Apparently BBC updates its articles without saving previous versions. In any case the link I posted led to a (somewhat) different text, but on the same story.

Substance now:

1) If by defending my "property" (and boy is that another huge subject) I consign hundreds of thousands of people to certain death, then I think one can easily make the moral argument that, no, I don't have the right to defend my property.
2) If a drug can be produced either under license or through a different method (chemical route) by country X, in such a way as to make it more affordable, that certainly is innovative. WTO regulations on "intellectual property" make that very difficult.
3)The issue however is not whether this is legal or not under WTO rules (surprisingly it is, see my previous post and the "compulsory licensing link") but whether or not it is legal under South African law. It is highly likely that it will turn out to be.
4) The message however that the Pharm. industry is sending is that it will fight tooth and claw to prevent governments from doing this and countries less powerful than S.Africa are bound to take note.
5) Prevention, education and counseling, as necessary as they are to prevent future infection, are sadly not enough to prevent approximately 5000 (and that's the figure Oxfam gives) to die between now and the end of the trial, 5000 people who, given the fact that S. Africa has a much better health system than say Mozambique, would most likely survive had they the money to purchase the AIDS drug cocktail.
6) I think that poverty, especially if we are talking about Africa where we are talking about absolute, abject poverty, is indeed an injustice. According to the Universal Declaration of Human rights everyone indeed is entitled to a decent living (see article 23, 1 and 3, article 25 and article 26) and it is a violation of his/her rights if they are (by no fault of their own) unable to support themselves.

posted by talos at 10:24 AM on March 5, 2001

The pharmaceutical industry is trying to protect its intellectual property rights while contributing hundreds of millions of dollars to combating a problem it did not create.

Those assholes.

The UN declaration of rights, to me, is a good list of goals, but i can't agree with many of them being basic human rights. Who is supposed to pay for all that free education and basic standard of living?
posted by techgnollogic at 12:48 PM on March 5, 2001

The pharmaceutical industry is contributing hundreds of millions of dollars while simultaneously urging the US to lobby for stricter intellectual property rights than those currently in place. Let me state this again: under current international law, South Africa is perfectly entitled to enforce compulsory licensing of patents as a response to "national emergency". The US, driven by pharmaceutical lobbying, wants to change that. This editorial, by a project manager at Doctors Without Borders includes the following quote:

"[The US] does not generally support the compulsory license of patents... and regards compulsory licensing as unnecessary." Lois Boland of the US Patent and Trade Market Office further said, "We acknowledge that our position is more restrictive than the TRIPS Agreement, but we see TRIPS as a minimum standard of protection."

Pharmaceutical companies are looking out for their shareholders' interests, as they're legally obligated to do. They're certainly not mustache-twirling villains, but let's not nominate them for sainthood yet.
posted by snarkout at 1:30 PM on March 5, 2001

The pharmaceutical industry is trying to protect its intellectual property rights

"Intellectual property" is a phantom. It is not a real thing. There is no substance behind it. A car, or a house, or a piece of land, or a suit of clothes, are physical objects which have an existence regardless of the laws that govern them. Intellectual property is different - it exists only as a legal fiat, a threat of enforcement. The actual information which comprises the "intellectual property" is widely spread through society, accessible to many people - printed in books, or periodicals, or built into the structure of physical artifacts. Take away the legal protection and the idea of the "idea as property" vanishes. Intellectual property is nothing but a government's threat to punish anyone who use the information they already have without compensating the creator of that information.

The only reason we let people get away with artificially restricting the flow of information for profit is that it serves certain ends: it encourages people with lots of money to spend that money on research.

So the idea of "intellectual property" is a purely pragmatic situation. There is nothing moral about it. Arguing that there is some inherent right to have intellectual property is absurd. It's a practical measure meant to get done what needs to get done. If the situation changes, the law should change too.

One can argue that it is more important to stop the AIDS epidemic in sub-Saharan Africa than to encourage pharmacological research. After all, if AIDS continues in its present course, significant fractions of the population will be dead and society will have largely collapsed. Against that, who really cares whether intellectual property rights are protected?

One could also argue that removing (part of) the incentive to perform research on new drugs will dry up the flow of new, more powerful tools for fighting AIDS, without making any real impact on the epidemic. From this point of view, one might as well keep on encouraging the drug companies by allowing them to charge prices designed to recoup R&D costs, rather than prices based merely on manufacturing costs.

"Intellectual property" should have nothing to do with this debate. It's purely a practical decision. How much benefit can South Africa (or other nations) get from cheap generic AIDS drugs? How much benefit can they get from drug company investment? How much will they lose by pissing off the drug companies?

-Mars
posted by Mars Saxman at 1:48 PM on March 5, 2001

I wonder how many people know what it takes to develop a drug?

Well, I have friends in publically-funded research laboratories whose discoveries are piggybacked by pharmaceutical companies, and I think they know what it takes. And that "what" isn't necessarily related to commerce.
posted by holgate at 1:52 PM on March 5, 2001

A patent on a life-saving drug is akin to the gun in the hand of the person who jabs it into your ribs and demands: "Your money or your life".

Because that's what it comes down to, when the pharmaco's have this power. Only they project a nice smiling image of clever life-savers in white lab coats. They have lots of money for lawyers and PR, of course.

Sure, research and development of new drugs costs money. And a lot of that money is public money (I do not know exactly how much, sorry). Yet the results are patentable... hmmm, something smells funny...

And don't forget what pharmaco's spend shitloads of money on *in addition to* research: advertising, public relations, and lawyers. Lots and lots of lawyers, so they can bring frivolous suits against rivals who want to produce generic varieties, *as permitted by law*. Because for every month the pharmaco's can hold off their rivals from legally producing a cheaper version of the drug, they rake in huge amounts of profits. Sometimes they can sue them into submission.

And this doesn't even touch the addition of advertising costs into the equation...

Crap like this makes me want to declare open War on Patents, dammit.

It sickens me that people act this way, protecting their holy Profit at all costs while people die as a result.

To me, such people are not truly human. Really. Fuck 'em.
posted by beth at 3:33 PM on March 5, 2001

"you know, sometimes i want to just [...] disown the human race."

I did that a long time ago.

Anyway, there's good arguments on both sides here, but I cannot in good conscience allow a companies' profits to come before human life. I am perfectly aware that it takes millions to develop these drugs. But these companies aren't even trying to attack the patent-infringing companies producing cheaper versions of the drugs. They're attacking a law allowing the gov't to import drugs from the cheapest source.

Also, I'd like to second Mars' opinions on IP.
posted by CrayDrygu at 4:36 PM on March 5, 2001