A child receives anti-worm medication during the UNICEF CAR - Mothers and Child Survival campaign (Central African Republic, 2008). Photo : Pierre Holtz for UNICEF.

Patently cruel

European customs often seize medicines bound for developing countries on the basis of suspected violation of patent rights. Humanitarian organisations denounce this practice which, they argue, benefits pharmaceutical companies to the detriment of the world's poor.

Published on 19 June 2009 at 17:09
A child receives anti-worm medication during the UNICEF CAR - Mothers and Child Survival campaign (Central African Republic, 2008). Photo : Pierre Holtz for UNICEF.

On 4 December, 2008, a consignment of Losartan Potassium, an active pharmaceutical ingredient used in the production of medicines for arterial hypertension, was seized in the port of Rotterdam. The shipment was on its way from India to Brazil, two countries where no patent on the drug exists. Nonetheless, customs seized the consignment on the basis of a suspected violation of patent rights. After 36 days, it was finally released and sent back to India. The 300,000 Brazilians, for whom the medicine was intended, were forced to do without treatment.

The seizure in Rotterdam is just one of a number of incidents which indicate that the EU may be attempting to block shipments of generic medicines. According to Oxfam Novib, Médecins Sans Frontières and other NGOs, 17 consignments of generics destined for developing countries, were seized in the Netherlands in 2008. Earlier this year, a large Clinton Foundation shipment of anti-HIV drugs en route to Nigeria was also seized, and only last month, a consignment of antibiotics was impounded in Frankfurt.

"It's impossible to work under these conditions," says Alexandra Huember of the Médecins Sans Frontières medicines working group in Geneva. According to Oxfam Novib, the shipping of generic medicines to developing countries is being deliberately and systematically blocked. "The general strategy is to feign an inability to distinguish between generic and counterfeit medicines so as to hamper legitimate trade. Naturally, the pharmaceutical companies who own the patents stand to benefit, while the developing countries are losing out," says Oxfam Novib health adviser Esmé Berkhout.

Berkhout is keen to emphasise that imports of low-cost generics from countries such as India are a lifeline for health services in developing countries. In 2001, when generics first appeared on the market, the cost of antiretrovirals for the treatment of AIDS plummeted from 10,000 dollars to less than 350 dollars per patient per year.

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According to aid organisations, manufacturers of generics are constantly having to deal with new barriers, in spite of international agreements to promote access to medicines. In 2001, under the aegis of the World Trade Organisation (WTO), the international community signed the Doha Declaration, which allows for the waiving of intellectual property rights to enable poor countries to import cheap generic versions of patented drugs. The reinforcement of European directives for the protection of intellectual property, in this case patent rights, appears to be inconsistent with the Doha Declaration.

In response to questions from international aid organisations, the European Commission reiterated its commitment to the Doha accord, and insisted that the tight controls had been prompted by a burgeoning trade in counterfeit medicines from countries like India and China. The Commission also pointed out that the shipments were not seized but simply "temporarily detained."

Aid organisations now suspect the pharmaceuticals industry of exercising a direct influence on customs services. When the consignment of Indian Losartan was seized, customs authorities were acting on the basis of a complaint filed by Merck, the US-based pharma multinational which holds the rights to the drug in Europe.

In a letter to Médecins sans frontières, Merck subsequently acknowledged that, with regard to the incident in Rotterdam, that it should have taken into account the fact that the medicines were were being shipped to a country where Merck does not hold patent rights.

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