Much Ado About Nothing?

Much Ado About Nothing?

Op-Ed in Tech Central Station
July 24, 2003

The last year has been a bad one for future AIDS victims. The U.N. AIDS conference in Barcelona was an activist circus. U.S. Secretary of Health and Human Services Tommy Thompson was shouted off stage by activists, unable to complete his speech. The more respectable AIDS activists expanded their already considerable influence in the committee meetings, benefiting themselves and the numerous bureaucratic sycophants who hang around all international negotiations.

Unsurprisingly, it was also bad for capitalism, big pharmaceutical companies and, as a result, all future AIDS victims. In the past year there has been little concrete progress, although there have been several rhetorical advances--most notably President Bush's $15 billion pledge to the cause.

Amir Attaran, a fellow with the Royal Institute of International Affairs and a board member of my own organisation, Africa Fighting Malaria, has for the past three years been exposing the various fallacies of the AIDS activists. He has also done his best to expose the hypersensitivities of the pharmaceutical industry. And recently he did both at the TCS Hayek Series briefing in Brussels.

Through his academic analysis of drug patent exploitation in developing countries, he pointed out that patents were rarely an obstacle to getting needed treatments in the poorest countries. In doing this, he annoyed his former colleagues and allies. He had once been on various Doctors Without Borders advisory groups, but they unceremoniously dumped him last year--although well-connected and highly intelligent, he was obviously no longer a true believer.

Although he became the darling of drug companies, some of whom over-interpreted his data to imply that patents were never a problem, he never sided with their greatest demand--to restrict the breadth of paragraph 6 of the Doha Declaration. This declaration, made at the World Trade Organisation Ministerial meeting in Doha, Qatar, in November 2001, established the notion that the poorest countries should, in principle, be able to import drugs from generics (patent-breaking/ignoring) companies in countries that did not (albeit legally) respect the drug patents of the western companies.

The key debate was over what should constitute the poorest countries and what diseases should be covered by the Declaration. There was widespread disagreement as to whether "poor" should include just the poorest 61 countries (known collectively in U.N.-speak as "less developed"), or should be expanded to include all countries except the non-OECD members. The U.S. and most European nations wanted just the poorest nations included. But the U.S. was isolated on the disease scope. Most countries did not want the list of diseases covered to be restricted to the "Global Fund" diseases of AIDS, tuberculosis and malaria; the U.S. was alone in pushing hard for this restricted group.

Dr. Attaran is convinced the U.S. Trade Representative, urged on by the pharmaceutical industry, is wrong to make such a political fuss about the scope of diseases. Attaran's analysis shows that there has been no compulsory licensing of western medicines in developing countries, although the legal right to do so has been agreed in international law for decades. He says "the threat is not credible," and that poor countries are going to engage in undermining the patent system.

At the Hayek briefing, he told an audience of media and opinion-formers that "there are absolutely no economically important pharmaceutical markets that have insufficient or no manufacturing capacity, and therefore, no important pharmaceutical markets are affected by paragraph 6 [of the Doha Declaration]." With the notable and tiny exceptions of Liechtenstein and Luxembourg, all developed countries have the capacity to manufacture most pharmaceuticals. Furthermore, most key poorer country markets, such as Brazil, China, Egypt, India, Mexico, South Africa, and Thailand, have the capacity, too. "In fact, compulsory licensing is so extraordinarily rare that it has not been used once in the last decade by any country in respect to a finished medicine." This is a striking omission from the trade discussions. Compulsory licensing is not practical," Attaran says.

Attaran says the reason for much of the confusion over international trade negotiations is due to anti-globalisation activists whose primary goal is not public health in poor countries but compulsory licensing in developed country markets. In other words the activists wilfully conflate their true desire (for Canadian or Indian generic drugs to have full access in American markets), with their phoney claim to want to help the world's poor. "The anti-globalizers have expended enormous effort on this, often with the help of too-trusting public health activists and scholars. And yet by any objective measure of success--such as the number of generic medicines manufactured under compulsory licences, the number of patients treated using those medicines, or the dollars of pharmaceutical sales lost to compulsory licences--the effort has been fruitless," concludes Attaran.

Attaran is at a loss to know why the drug industry, faced with these facts, continues to push such a hard line on the issue. He thinks it's because they are fixated with the law rather than the real diplomatic, political and attitudinal realities. "Simply put, it is now a custom that countries aspiring to the polite society of globalisation never compulsorily license medicines. Certainly they may threaten it, as Brazil sometimes has when rattling sabres and bargaining with pharmaceutical companies, but they never actually do it--the velvet handcuffs of international custom and comity are that strong," he comments. Set against this reality, paragraph 6 is a legal technocrat's dream. It cannot change international custom. It is therefore powerless to threaten the pharmaceutical industry.

It remains to be seen whether Dr. Attaran is proved to be right. He is probably mostly correct, and the U.S. negotiating position has widened to allow drugs for 22 diseases (up from just AIDS, malaria and TB before) to be included. But there is little doubt that the U.S. administration and drug companies want drugs for life-style complaints and major western diseases to be left off the table. A political battle is continuing on this issue, and it will generate much media coverage at the Cancun WTO Ministerial, but, if Attaran is right, it will be much ado about nothing.