Free Trade, Patents, and AIDS

Judit Rius Sanjuan, is a lawyer from Barcelona/Spain, and US Manager of the Access Campaign at Médecins Sans Frontières /Doctors Without Borders in New York. In an article at PLoS Medicine he describes how free trade negotiations known as the Trans-Pacific Partnership (TPP), currently involving 11 countries—Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam—are at odds with stated goals of  an AIDS-free generation.

The theme of the 19th International AIDS Conference that took place in Washington, DC a few days ago was ‘Turning the Tide Together.’ It captured the inspiring optimism and momentum around HIV/AIDS. Fueled by new science showing that a combination of prevention and treatment tools can start reversing the AIDS epidemic if implemented at scale, and buoyed by the achievement of having more than 8 million people on antiretroviral therapy (ART) in developing countries, public health experts and governments from around the world shared data and their visions for the future of the HIV/AIDS response. Many, including Doctors Without Borders/Médecins Sans Fronitères (MSF), welcomed the U.S. government goal for an AIDS-free generation.

But the conference also illuminated the profound contradiction between these possibilities and some of the U.S. government’s trade policies. Central to these interventions is the need to scale up ART coverage to the more than 7 million people still in need of urgent treatment, and expanding programs to get people on treatment earlier, and retaining them long-term, so they stay healthier and are less likely to transmit the infection to others.

Sanjuan points out that the only way to achieve these goals is with keeping the costs for drugs as low as possible. The current TPP negotiations are moving in exactly the opposite direction.

For example, the U.S. government wants TPP countries to lower the bar for patentability, thereby granting pharmaceutical companies new patents on variations of old drugs with little therapeutic benefit for patients. These provisions could stifle the production of less expensive generic forms.  And, the U.S. would make it impossible to challenge a patent’s validity before it is granted – a commonly used tool that helps to prevent frivolous and unwarranted patenting and which is vital to fostering an IP system that rewards innovations benefiting patients.  The U.S. demands also extend patent monopolies beyond the traditional 20-year period and make it harder for generics to get regulatory approval, which will serve to keep generics out and prop up drug prices for longer.

With these demands, U.S. is turning its back on existing commitments to promote public health in trade agreements and is undermining the sustainability of its own global health programs such as PEPFAR [President’s Emergency Plan for AIDS Relief]and international initiatives like the Global Fund to Fight AIDS, Tuberculosis and Malaria.

There are broader implications than AIDS. An increase in the cost of drugs will impact a great number of global health initiatives.

But this is not only about HIV/AIDS. The effects of the TPP and the U.S. trade demands will also impact prices for drugs used to treat a wide range of other diseases. In advance of the International AIDS conference, the United States Trade Representative Ron Kirk asserted that the U.S. is “working hard to find a balance between protecting IPR and ensuring access to medicines.” But representatives from over 600 business interests, including big pharma, have access to the details of the TPP negotiations, while treatment providers and public health advocates do not.  In reality, the balance has tipped dangerously far away from public health protections towards protecting the profits of pharmaceutical firms.

Canada is also negotiating a deal with the European Community that would have the same effect; an effect that would be felt nationally as well as globally. These impacts on provincial health care costs are not trivial.

A recent report from Manitoba’s health department pegged the cost of agreeing with European drug-patent demands at $80 million a year for the provincial government.

Economist Don Drummond recently cited research that put the cost at $1.2 billion a year for Ontarians.

The impact will be felt by provincial governments, insurance companies, and individual Canadians. A recent study from UT and UBC describes the problem under the status quo.

They found that 9.6 per cent of Canadians who received a prescription reported not filling, failing to refill, or skipping doses for cost reasons. The phenomenon is particularly prevalent for Canadians who do not have drug insurance, with 26.5 per cent reporting not being able to afford their prescription drugs.

“Our results clearly demonstrate that cost-related problems in accessing prescription drugs are disproportionately borne by the poor, the sick and the uninsured,” says Michael Law, Assistant Professor at UBC’s School of Population and Public Health. “More than one in four Canadians without health insurance are forced, financially, to go without the prescription drugs they need.”

Support of research and development of new drugs is a laudable goal, and has been a component of previous patent extensions that benefit the drug companies. A component that has not been met or enforced.

In his speech, [ex-prime Minister Brian] Mulroney said the patent regime created by his government has paid off handsomely. He said the brand-name pharmaceutical industry has invested $20 billion in Canada over the past 20 years, “fully in line with the promise that 10 per cent of sales would be invested.”

But the price review board says differently. While brand-name investment in research spiked in the early days of the new regime, it has come in well under the promised 10 per cent level for many years.

In 2010, patentees invested 6.9 per cent of their sales revenues in research and development – the lowest since 1989. The ratio has been less that 10 per cent for 10 years in a row, the board says on its website.

For members of the Canadian Association of Research-Based Pharmaceutical Companies – the group that sponsored Mulroney’s dinner – the ratio was 8.2 per cent in 2009, and has been less than 10 per cent for eight years in a row, the board said.

We need a healthy pharmaceutical industry to provide new treatments and preventatives as our knowledge of the causes of diseases increases. However, as a society, we gain nothing if only the wealthy and the insured are able to pay for those drugs.

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