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AFRICA: Anti-Counterfeit Laws Threaten Universal Access to ARVs

Wambi Michael

ARUSHA, Tanzania, Apr 1 2010 (IPS) - East African countries risk not attaining the millennium development goal (MDG) on universal treatment of people living with HIV and AIDS, malaria and other diseases if the region’s parliament adopts the anti-counterfeits policy and bill currently under consideration.

Civil society representatives, government officials and intellectual property experts warn that the region would not meet MDG six if it adopted the proposed policy and bill as they would block the production and importation of generic medicines used by healthcare services to treat diseases. The countries affected are Uganda, Tanzania, Rwanda, Burundi and Kenya.

The draft bill and policy could erode recent gains in the scaling up treatment of people living with HIV and AIDS, said Tenu Avafia, policy specialist on intellectual property, trade and HIV and AIDS at the United Nations Development Programme (UNDP).

He spoke to IPS at a regional meeting hosted by the Open Society Institute, Health Action International Africa (HAI Africa) and the UNDP on Mar 25-26 to discuss the proliferation of anti-counterfeit goods legislation in the East African Community (EAC) and its implications for public health and development.

“In the last four or five years we have made great strides in scaling up treatment. We managed to have three million people globally on treatment by 2007. By the end of last year there were four million people on treatment. To have legislation that would restrict use of generic medicines in the region, particularly ARVS (antiretrovirals), would have the effect of stifling the great progress that has been made on MDG six,” he said.

MDG six aims at halting the spread of HIV and AIDS by 2015 and achieve universal access to treatment for HIV and AIDS by 2010. It also aims at halting and reversing the spread of malaria and tuberculosis by 2015.

Avafia told IPS that the Anti-Counterfeit Act of 2008 in Kenya, the Counterfeit Goods Bill in Uganda and now the EAC Anti-Counterfeits Bill would cause public health problems by limiting local production and importation of generic medicines.

“Apart from HIV and AIDS, we also feel that there are other health-related MDGs of which the attainment could possibly be endangered by legislation that impede access to medicines,” he added.

Sangeeta Shashikant, a legal advisor with Third World Network (TWN), told IPS that the EAC bill seems to reduce every generic medical product to a counterfeit. “The definition states (counterfeits) are substantially identical copies of the protected goods (produced) without the authority of the owner of the intellectual property rights of the protected goods. This is dangerous for countries that depend on generics in the health care system” she said. TWN is “an independent non-profit international network of organisations and individuals involved in issues relating to development, Third World and North-South affairs”.

This definition flies in the face of the gains won by developing countries in the World Trade Organisation’s Doha Declaration that confirmed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement’s allowance of parallel importation to address public health problems. Parallel importation involves the importation of non-pirated goods without the permission of the copyright holder.

According to the World Health Organisation, “the rationale for parallel importation is to enable the import of lower priced patented products. Parallel importing can be an important tool enabling access to affordable medicines because there are substantial price differences between the same pharmaceutical product sold in different markets”.

Christa Cepuch, director with HAI Africa based in Nairobi, “the issue of access to medicines is essential to the response to HIV and AIDS. Instead of building on with the progress so far, these laws are now putting up barriers to accessing generics which have been a backbone to HIV treatment in Kenya and East Africa at large,” she explained. HAI Africa is a network of organisations and individuals involved in health and pharmaceutical issues that uphold health as a fundamental human right.

Dr. Thomas Walter, project manager for TRIPS and pharmaceutical promotion in East Africa at the Deutsche Gesellschaft for Technische Zusammenarbeiten (GTZ), said “barring generic medicines by defining them as counterfeits will be a disaster in terms of access to medicines and also for the local manufacturers whom we are supporting to go more into generic medicine. The bill has to be adjusted.” GTZ is an organisation that has a mandate from the German government to promote capacity building in developing countries.

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