Global Policy Forum

By Kristen Philipkoski

A lawsuit brought against the government of South Africa by 39 U.S. pharmaceutical companies goes to trial next week. The drug companies hope the trial in Pretoria, beginning on April 18, will overturn a law that allows the government to import cheap AIDS drugs. The companies say it violates their patent rights.

According to UNAIDS, approximately 33 million of the 36 million people in the world with HIV or AIDS live in developing countries, and most of them will die within a decade if emergency action isn't taken. South Africa is home to 4.7 million people with the disease, the highest number in any country.

Pharmaceutical companies say this case is not just about HIV and AIDS. It's about patent law for all drugs, and without these laws, there would be no innovation in the treatment of the disease.

"It's a very broad constitutional question really," said Nancy Pekarek, a spokeswoman for pharmaceutical company GlaxoSmithKline. Frederick Abbott, a visiting professor of law at the University of California at Berkeley who will advise the South African government during the trial next week, said the pharmaceutical companies will lose the case even with the help of "high-priced lawyers."

"The South African government is defending its right to establish its own health care policy within the limits established by international law. The pharmaceutical companies are challenging their right to do that," said Abbott, who is also a chair in international law at the Florida State University College of Law.

Critics say patent laws are less important than the loss of 20,000 lives every month. "I would hope they would not opt for the highest level of protection in poorer countries, but a lower level. The consequence is high prices and not much access," said James Love, director of the Consumer Project on Technology at the Center for Study on Responsive Law in Washington, D.C.

"It's racist to suggest you should sacrifice that many people to some PR goal," he added. Drug companies have cut drug costs increasingly quickly in the last two years, bending under growing international pressure.

Treatments that would cost tens of thousands of dollars per year in the United States have been slashed to just hundreds in Africa. But only a very small fraction of people with HIV will be able to afford drugs even at the new prices.

Recent estimates by the South African government say that only about 1 percent of the 4.7 million people with AIDS can afford drug therapy. It also predicts that 25 percent of the population will die in the next decade if the present situation continues.

Now treatments cost about $3 per day, but with an average per capita income of only about $7 per day, few can afford even that. "Without the lawsuit, people in South Africa could get a three-drug cocktail for $1 a day," said Love, who will also advise the South African government in the trial. The government could do this by a process called parallel importation, which means finding the country that sells a drug the cheapest. Parallel importation does not involve buying generics, but drugs sold by the major drug companies at lower costs in developing countries. So if, for example, Mali has the cheapest price on Combivir, an AIDS drug manufactured by Glaxo, South Africa could import it from there at a low cost.

The law in question is called the Medicines and Related Substances Amendment Act of 1997, which the pharmaceuticals claim is too broad. They say it gives the health minister in South Africa too much power to approve things like parallel importation, as well as allowing generic substitution.

"It seems to give the minister of health the power to make decisions that would normally be decided by the parliament of the country," Pekarek said. "It would appear to allow them to override patent rights."

Pharmaceutical companies argue that even free would be too expensive for South Africa, because they don't have the medical infrastructure to deliver AIDS drugs properly. "The worst thing you could do is put medication in there without support, because there's a huge chance of resistance," Pekarek said.

The argument infuriates Love, who says the basis of it is racist. He speculated a scenario where one in five Americans would die because companies charged too much for a drug to treat an illness. He guessed that somehow the companies would be compelled to offer the drugs at an affordable price.

"We don't value the life of a black person in Africa the same way we do the life of an American," he said.

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