Johannesburg/New York - A submission to the United States Government shows South Africa is facing pressure from the pharmaceutical industry to backtrack on intellectual property (IP) law reform that aims to improve access to medicines in exchange for eligibility for ongoing inclusion in the United States’ African Growth and Opportunity Act (AGOA). The Treatment Action Campaign (TAC), Doctors Without Borders (MSF), SECTION27 and the Stop Stock Outs Project (SSP), as members of the Fix the Patent Laws coalition, are deeply concerned by such requests.
Last week, the American Chamber of Commerce in South Africa (AmCham) explicitly requested that South Africa’s eligibility to benefit from AGOA should be contingent on the country abandoning certain intellectual property law reforms. The argument is contained in a submission to the Office of the United States Trade Representative (USTR), and echoes a 2013 AmCham submission to South Africa’s Department of Trade and Industry (DTI) on the country’s Draft National Policy on Intellectual Property (“the Draft IP Policy”).
Prominent AmCham members include some of the pharmaceutical companies behind the 2014 Pharmagate scandal, in which the U.S. and European pharmaceutical industry sought to delay South African IP reform by financing a covert U$600,000 campaign. Health Minister Dr Aaron Motsoaledi said the campaign sought to restrict access to crucial drugs and called it “genocide”. At the time the Minister called on all South Africans to fight against such attempts "to the last drop of their blood". Pharmaceutical companies implicated in Pharmagate and belonging to AmCham include Abbott Laboratories SA, AbbVie, Bristol-Myers Squibb, Eli Lilly SA, MSD and Pfizer.
While there is no clear evidence the US government is linking AGOA eligibility to halting IP reform, the AmCham submission to the USTR makes it clear that AmCham members are lobbying the U.S. government to exert such pressure. AmCham’s submission shows no recognition of South Africa’s need for affordable medicines to address its severe disease burden of HIV, TB, and non-communicable diseases. TAC, MSF, SECTION27 and SSP yesterday made a submission to the USTR, which counters the AmCham submission to the USTR on South Africa’s eligibility for AGOA.
“We know there’s significant pressure on the South African government to abandon or to water down the proposed IP law reforms. We have seen very worrying delays in finalising the national IP policy, and we hope the South African government will not be moved to compromise the health of its citizens in order for U.S. pharmaceutical companies to continue to reap massive profits,” says Anele Yawa of the TAC.
Earlier this year, the TAC was informed by a well-placed source that the finalisation of South Africa’s 2013 Draft IP Policy has been stalled in part because of AGOA-related pressure from the United States government. On 25 June the TAC wrote to South Africa’s Minister of Trade and Industry Rob Davies noting concerns regarding the potential linking of AGOA eligibility to IP law reforms.
The letter (included below) requested Minister Davies’ reassurance that the country would not abandon its process of IP reform due to pressure from the United States. Despite confirming receipt, Minister Davies has not responded to the letter to date. By making the letter public, we hope that he will respond publicly on this pressing issue.
The proposed IP law reforms are a concerted effort by the government to ensure ordinary people in South Africa do not pay unreasonably high prices for medicines on account of low-quality and unwarranted patents. Today it remains easy for multinational pharmaceutical companies to be granted multiple patents on existing medicines and prolong market monopoly periods. The proposed reforms would limit such “evergreening” practices, and are fully in line with rules of the World Trade Organisation (WTO). Many of the reforms have already been implemented in other developing countries like Argentina, Brazil, India and Indonesia.
The South African DTI and Companies and Intellectual Property Commission (CIPC) have already taken promising steps that suggest they will progress with IP reform, and not cave in to US pressure. This week, the CIPC started the recruitment of 20 Patent Searchers to be trained for the eventual implementation of a patent search and examination system. Such a system already exists in Argentina, Brazil and India and will ensure that patent applications are examined rigorously. At the same time, the DTI has initiated the process of IP-related legislative reform, with the introduction in Parliament of a draft bill to amend the Copyright Act. The draft bill is currently open for public comment.
The South African Constitution places a positive obligation on the state to take all reasonable legislative and other measures to ensure the realisation of the right to access health care services, within its available resources,” says Umunyana Rugege of SECTION27.
‘Reasonable legislative measures’ include precisely the kind of law reforms contemplated in South Africa’s Draft IP Policy. Such constitutional obligations cannot be ignored when the South African government engages in trade negotiations. The U.S. government and the pharmaceutical industry do not have the right to strong-arm the South African government into trading away our health.
“We support the South African government’s efforts to fully incorporate public health flexibilities permitted by the WTO into our national laws, to promote access to medicines and medical technologies,” notes Catherine Tomlinson of MSF. “We urge our government not to be swayed by pressure seeking to override South African sovereignty or limit our constitutional rights.”
It is in the public interest that Minister Davies responds to the letter from the TAC, and addresses the following:
- As we approach the two-year anniversary of the Draft IP Policy being published for public comment, by what date can the final version of the policy be expected in the public domain?
- What, if any, IP-related concessions have the South African government made in discussions with the United States government, relating to South Africa’s eligibility for ongoing inclusion in AGOA?
For media comment contact:
- Marcus Low, Treatment Action Campaign, +27 422 1700 or Marcus.firstname.lastname@example.org
- Borrie LaGrange, Doctors Without Borders, +27 83 28 75 294 or Borrie.email@example.com
- Umunyana Rugege, SECTION27, +27 83 45 85 677 or Rugege@section27.org.za
TAC’s Letter to Minister Davies on 25 June 2015.
Dear Minister Davies,
CC: Minister of Health Dr Aaron Motsoaledi, Deputy President Cyril Ramaphosa
We are writing to you to raise serious concerns regarding the ongoing delay of intellectual property law reform in South Africa and the potential causes of these delays. That the finalisation of the Draft National Intellectual Property policy has been delayed is a matter of public record and a serious concern irrespective of the reasons for the delay.
More than one well-connected source has independently indicated to us that pressure from the United States government is the key reason for the delays. However, no evidence to this effect has been made publicly available as yet.
If any such pressure has been exercised by representatives of the United States government it would be in contravention of Executive Order 13155 of 2000.  We are aware that requests for information in terms of the United States Freedom of Access to Information Act have been filed relating to meetings and communication between the United States Trade Representative and representatives of the South African government.
Given all of the above, we request that you provide us with clarity on the following questions:
1. Has the DTI been under any pressure from the United States to water down or delay the finalisation of the Draft National Intellectual Property Policy? We stress again that such pressure would be in contravention of United States Executive Order 13155.
2. Has South Africa made any intellectual property-related concessions at the behest of representatives of the United States government as part of negotiations concerning the renewal of AGOA?
3. Why has the Draft National Intellectual Property Policy not been finalised and why was no mention of it made in your budget vote speech or any other forward-looking communication from the DTI?
We remind you that the Constitution of South Africa places a positive obligation on the state to take reasonable legislative measures to ensure the progressive realisation of the right to access healthcare. The full domestication and implementation of TRIPS flexibilities (as clarified in the Doha Declaration on Public Health) in South African law is such a reasonable legislative measure. The state is thus under a Constitutional obligation to continue a process of progressive intellectual property law reform. Such Constitutional obligations in law cannot be traded away.
We kindly request that you respond to this letter before July 13th 2015.
General Secretary, Treatment Action Campaign
 William J. Clinton: "Executive Order 13155 - Access to HIV/AIDS Pharmaceuticals and MedicalTechnologies," May 10, 2000. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.
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