Progress on AIDS drugs

Progress on AIDS drugs

The recent decision by many multinational drug companies to abandon their law suit against the South African government is regarded as cheerful news for the 21 million odd Africans infected with HIV, the virus that causes AIDS. But that is, sadly, not necessarily the case. The universal sense of elation that attended the resolution of the three-year legal feud was quickly dampened when the South African government announced that it would be in no hurry to buy the drugs that have proven efficacious in making AIDS less a death sentence than a chronic, but manageable, disease.

In enunciating its policy of inaction, Pretoria in effect surrendered what should have been a substantial victory for the 4.7 million South Africans infected with HIV, or battling with AIDS. That is both unconscionable and inexcusable. It is also deeply paradoxical.

On April 19, 39 drug manufacturers opted to drop their lawsuit that challenged a 1997 law which they collectively seen as posing a threat to their patent rights. Besides filing the case in 1999, the companies had also taken steps to withdraw from South Africa, a nation seen as leading a battle to undermine the integrity of intellectual property. The pharmaceutical companies insisted that the disputed South African law, known as the Medicines and Related Substances Control Act, blatantly infringed on their right to exercise their patent rights.

The law empowers the health minister to determine conditions under which it would be necessary to import generic or lower-priced medicines. Conceived as an antidote to price mark-ups, the law also seemed calculated to rattle the major pharmaceutical companies - and to wrest substantial concessions from them.

Without question, the strategy worked. As part of the settlement to drop their case, the pharmaceutical companies conceded that the South African law did not flout international trade agreements. That concession clears the way for the country's health authorities to purchase brand name medicines at the lowest possible prices available anywhere, or to import cheap generic versions. In addition, the industry also agreed to pay the South African government's legal costs. That concession was far reaching. For, as far as legal disputes are concerned, one party's agreement to pay another party's legal expenses amounts to an admission of defeat. That's simple and short.

Notwithstanding the industry's bold efforts to put a positive spin on its the legal settlement, the fact of the matter is that it lost the case. On its part, the South African government merely made a commitment to collaborate with the industry in writing the regulations for implementing aspects of the law. Considering the drug companies' legal reverses, that obligation is more a face-saving provision than anything else.

That concession is far less than what the industry set out to achieve when it mounted the legal challenge. At minimum, the pharmaceutical companies had sought the court's ascension that their patent rights were under siege and needed to be safeguarded. They had also sought judicial concurrence for their argument that the South African government was an outlaw as far as patent rights were concerned. Had the court reached that conclusion, then it would have had no choice but to compel the South African government to honor international trade agreements.

South Africa's considerable AIDS constituency--one-tenth of the population is HIV-positive--had a lot to do with the legal triumph. They poured out into the streets to dramatise both their presence and power, but also their weakness and vulnerability. Despite the millions that are infected in the country, only about 10,000 have the resources to buy the AIDS drugs at their present levels. For all the euphoria over the outcome of the case, many analysts do not see the government being able to provide medication for more than 400,000 of the infected pool. By implication, most of those living today with the disease still stare death in the face on a daily basis. That is truly sad.

In fairness, it ought to be stated that AIDS activists around the world, especially those in the drug companies' home nations, played a strong role in galvanising public opinion against the industry. In America, for example, a coalition of university students, professors, activists and ordinary citizens helped build the case against the pharmaceutical industry's obsession with profits in the face of Africans' destitution, disease and death.

Even so, it would be altogether wrong to vilify the industry. Their efforts to protect their intellectual property and to stem patent infractions are clearly legitimate goals. An industry that spends billions of dollars on research and development of new drugs should not be expected to shrug off patent infringements. What made their case appear obscene and irrational was the enormous sheer size and calamitous consequences of AIDS on the African continent--and the ravages of the disease in Asia, the Caribbean and Eastern Europe.

In those circumstances, the industry's finely wrought legal arguments about intellectual property rights failed to resonate either in South Africa, a country devastated with the world's highest number of HIV infections, or anywhere else in the world. As the lawsuit quickly turned into a public relations nightmare, with critics assailing the industry for putting profits ahead of the health of millions, the companies had little choice but to retreat.

It was not altogether fair to blame pharmaceutical companies for South Africa's AIDS woes. The country's leadership had done little to control the spread of the disease. In fact, South African President Thabo Mbeki has irresponsibly questioned the safety of AIDS drugs. He has also expressed doubts about the fact that HIV causes the disease. In the face of such expressions, nobody should be surprised that the infection level remains high in South Africa. Many people simply engage in risky behaviour, often multiple heterosexual relationships.

Even with the court victory, the government appeared determined to confirm many people's doubt that it has little resolve to move quickly to get drugs to more AIDS patients. Rather than move away from the superstition that AIDS has a different cause than HIV, the government's response to the legal victory sustains the position that poverty, rather than indiscriminate sex, accounts for the rampaging disease.

Despite the government's disappointing posture, the outcome of the case in South Africa is bound to have a global impact. It cannot be denied that it clearly weakens the industry's ability to resort to legal action against patent rights threats in such countries as Brazil, India, Thailand--and any number of other poor countries. The industry understands that their best response to such threats is to beat potential generic manufacturers in a price war.

Recently, several pharmaceutical companies, including giants Merck, Bristol-Myers Squibb and GlaxoSmithKline, offered to sell their AIDS medications to impoverished nations at or below cost. On average, anti-retroviral drugs would cost an African patient about $600 per year, still beyond the reach of most people. Most African nations still spend less than $100 per capita on health care. For these countries, then, it is surely a challenge to find the $600 it would take to treat an AIDS patient each year. In developed countries, the annual price tag for the same medications is at least $10,000 per patient.

Both by the earlier decision to offer steep cuts in drug prices as well as the withdrawal of the lawsuit, the drug manufacturers have demonstrated a readiness to assist destitute nations in combating the spread of a dreadful disease. Perhaps these companies have done their best. But that won't suffice for a continent buffetted both by the worst infection rates in the world--70 per cent of HIV cases are on the African continent--but also the most crushing poverty. A number of civic groups in the United States and Europe have been suggesting that Western nations forgive African nations' debts--and encourage the forgiven nations to invest more in the fight against AIDS, preventive as well as curative. That argument is compelling and merits serious consideration. But it is up to South Africa - and other nations, including Nigeria - to get cracking with serious programmes aimed at drastically cutting down the number of new infections. In the case of South Africa, that would also entail abandoning the foolish notion that HIV has little to do with AIDS.