What price a life? Why cheap AIDS drugs are failing to reach the needy

Date: 28/11/02

By David Cronin

IT SHOULDN'T have to be a death sentence. With proper treatment, people with AIDS can frequently overcome the disease or cope with it. Take this example from South Africa.

A sample of 177 infected patients from Khayelisha, a township outside Cape Town, were prescribed generic drugs combivir and nevirapine over the past year. By now 91% of these have made such progress that the virus can no longer be detected in their blood. 'This is a better result than I've seen with treatment in Denmark,' says Copenhagen-based doctor Soren Brix Christiansen, an advisor on AIDS to Nelson Mandela, the former South African president.

In this case, the aid workers behind the treatment project have been able to secure drugs costing less than €1 per day. But in many other countries with high AIDS rates, the price of life-saving medicines has been prohibitive for most poor people. Humanitarian group Médecins Sans Frontières highlighted earlier this month how Viracept - the brand name for the main AIDS drug manufactured by Swiss pharmaceutical giant Roche - costs more in Guatemala and Ukraine than in Switzerland, the wealthy country where it's produced.

A Guatemalan patient would have to find €8,372 for a yearly supply of Viracept and a Ukrainian would pay €7,126. Somebody living in Switzerland, on the other hand, would pay only €6,183.

Across the globe, 40 million people are infected with HIV or AIDS. In some poor countries AIDS has brought average life expectancy down to 27 years. An estimated one-third of the world's population cannot afford the medicines they desperately need to stay alive.

In Christiansen's view, the AIDS pandemic is a far graver problem for humanity than terrorism. 'Forget about bin Laden and everything else,' he says. 'This will take away the fundament of many countries.'

In recent years, the most controversial aspect of the AIDS debate has been how profit-hungry pharmaceutical companies have charged exorbitant prices for drugs.

There was an international outcry when 39 of these firms started legal proceedings against South Africa's government over a 1997 law aimed at making medicines cheaper by subjecting them to price controls and overruling the patents on branded drugs. On 19 April 2001, the firms capitulated to internal pressure and dropped their case.

In fairness, many of these have since decided to make their products available at considerably lower prices in poor countries than in rich ones. But millions of AIDS victims still lack the means to acquire them.

Twelve months ago the World Trade Organization (WTO) conference at Doha issued a landmark declaration stating that people's lives should take precedence over the money made by drug firms.

It said that the organisation's TRIPS (trade-related aspects of intellectual property rights) agreement, which covers patents for branded drugs, should not hinder governments from taking measures to protect public health.

Yet a key question was left unanswered at Doha. In 2005 the full rigours of TRIPS is due to apply to India and Thailand, both of which manufacture generic drugs for export to other poor countries without production facilities of their own. As Article 31 of TRIPS restricts the use of compulsory licences for drugs 'predominantly for the supply of the domestic market', the amount of products they could export would be severely reduced.

WTO members have resolved to thrash out a deal to overcome the hurdle which the TRIPS provision places in the way of access to medicines by the end of this year.

European Voice has seen a proposal drawn up by WTO officials, which some intellectual property specialists predict will form the basis of that deal. The blueprint, being discussed at WTO headquarters in Geneva this week, is far closer to ideas advanced by Washington and the pharmaceutical industry than those by the EU and developing countries.

Essentially, this proposes that rich countries will refrain from lodging complaints to the WTO over issues relating to the compulsory licensing of certain drugs until an agreement on amending TRIPS can be found.

Anti-poverty activists consider that this move would be tantamount to postponing a final decision for the round of world trade talks for which Doha paved the way.

'If this gets into the trade round, then health could be used as a bargaining chip,' says Ruth Mayne, a policy advisor to Oxfam.

An alternative proposal by the European Commission suggests a solution should be based on tinkering with Article 31 of TRIPS.

Trade Commissioner Pascal Lamy said earlier this month he wants to 'lift the restriction currently resting on the possibility to export medicines under a compulsory licence'.

'This new exception would allow WTO members to issue compulsory licences with a view to supplying one or more other countries with medicines for which the latter do not have sufficient manufacturing capacity,' the Frenchman added.

Charities and poor countries, however, favour a different approach. They advocate a solution based on Article 30 instead. It states that governments 'may provide limited exceptions to the exclusive rights conferred by a patent'.

The poor countries argue this could be used to introduce a system ensuring that patent rights will never be invoked to deprive poor people of sorely needed medicines.

'It's because of the patent system that millions of people are being condemned to die,' says Seco Gerard from Médecins Sans Frontières. 'If companies develop drugs against baldness, who cares? Let them sell them for whatever price. But they can't be allowed to do the same with life-saving drugs.'

A core gripe that campaigners have with the Commission's blueprint is that it would require a company supplying cheap generic drugs to ask the government of the country where it is based to override the applicable patent before it can export the products. An Oxfam paper claims this would 'make the needy importing country unacceptably dependent on the political will of another government and increase the administrative burden'.

Such arguments, though, seem destined to be killed off by realpolitik. 'A solution based on Article 30 would be unlikely to attract the necessary consensus in the WTO,' Lamy said.

John Sulston, the scientist who shot to fame through his pioneering work on gene-mapping, feels the EU should stand up to Washington's plans. 'America's foreign policy on trade is very aggressive,' says Sulston, who is backing Oxfam's campaign on essential medicines. 'The European Union needs to come together and be an opposing force.'

Some member states have effectively done that. Parliaments in France, Belgium and the Netherlands have all endorsed the blueprint favoured by poor countries; so have a majority of MEPs.

But the Commission's trade spokeswoman Arancha Gonzalez says it is sticking to its guns. 'The Commission already has a mandate from member states on this,' she says. 'It's not like the member states are against the Commission but, of course, certain parties are inclined to use a different mechanism to the one we propose.'

Nevertheless, she says that the Commission would be willing to examine the US idea of waiving disputes over compulsory licensing, but adds: 'There are several opinions on the table. One view is that this should be done through a waiver. Another view, and this is more the view of the EU, goes more in the direction of modifying the TRIPS agreement. We believe this would provide legal certainty to operators.'

The European Federation of Pharmaceutical Industries and Associations (EFPIA) feels it is wrong that so much of the debate about AIDS has been focused on drug patents.

'All the discussions on TRIPS are about something that is supposed to be implemented in 2005,' says EFPIA's Christophe de Callatay. 'At the moment there is nothing to prevent most impoverished countries getting access to drugs. The drugs are there but their delivery is missing. The real problem is access to healthcare. Building hospitals is much more important and this has nothing to do with patent and intellectual property rights.'

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