Trading Away Access to Medicines?

Coinciding with another controversial seizure of medicines in the EU (Paris, this time) a group of NGOs have released a joint statement criticising EU trade policy.  Oxfam, HAI, and MSF have attacked the European Commission for its support of intellectual property (IP), which they claim “benefits…IP holders at the expense of Access to Medicines for millions of people, particularly in poor countries.”

 The document is essentially an anti-IP polemic, in which the signatories rail against the alleged “deficiencies” of the patent system of “leaving a research gap” and neglecting diseases.We have argued against these claims in the past but they’re tangential to the enormous health threat that everyone else (Time magazine, Jacques Chirac, the WHO, UN head Ban Ki-moon, the Gates Foundation…) is talking about—the danger of drug resistant diseases, induced by counterfeit drugs.  Rather than conflating many issues and ideologically opposing all IP, health activists should take a more practical view on how IP laws can be shaped to help poor people in less developed countries (LDCs).

Access to medicines is an insufficient goal in global health. We should be aiming for access to high quality medicines. Substandard drugs (especially counterfeits) cause more harm than good, injuring patients and burdening poor countries and healthcare resources with new waves of drug-resistant disease.

When counterfeiters fake a product, they often fake a trademark too—it’s part of their deception, to leech off the good reputation of others. Stopping these fakes is one of the simplest means of protecting the poor from bad medicines and should be acceptable to opponents of other forms of IP. Even MEP Christian Engström of the Pirate Party agrees, stating last week: “The primary function of trademarks is to act as consumer protection ... The Pirate Party has no objections in principle to combating counterfeit goods or upholding the existing trademark laws.”

EU seizures of pharmaceutical goods in 2008 were almost entirely (93 per cent) for trademark infringement—ie. on suspicion of being fakes. Only 6 per cent were for patent infringement. By focusing on a minority of cases (for patent-infringement), groups like Oxfam, HAI and MSF are ignoring the main threat to patients in LDCs; and by conflating the issues and seemingly opposing all IP, they risk damaging measures that safeguard the poor from fake drugs.

Perhaps I’ve missed statements from these groups regarding the seizures of fake drugs (rather than generics), but given the severity of the situation they should be making more noise and making clear their views. Do they really think medicines with fake trademarks should be released into poor country markets? One hopes not. It’s time we stopped obfuscating this issue with squabbles over other areas of IP and found consensus in the fight against fakes.