Secret plans to criminalize generic medicines could hurt poor countries and people

International agency Oxfam fears that companies producing affordable generic medicines for poor people could be subject to criminal prosecutions and have their medicines seized on orders from big drug companies under plans being drawn up by a closed group of mainly rich countries.

Negotiators working towards a new Anti-Counterfeiting Trade Agreement (ACTA) are meeting in Morocco over the next two days to draw up multilateral enforcement rules for intellectual property, including new rules for patents and trademarks that are likely to make it harder for generic companies to provide medicines for sick people in poor countries.

Countries involved, including the European Union, United States, Canada, Japan, Australia and New Zealand, are refusing to publish the draft agreement for scrutiny.

“Based on past form – including recent seizures of generic medicines by the EU – the secrecy surrounding this deal raises real fears that poor people’s interests will be ignored,” said Oxfam policy adviser Rohit Malpani.

The European Union is pushing for a deal that would require all countries negotiating ACTA to increase seizures and prosecute companies who produce generic medicines legally in countries such as India for sale in other countries, including those not even engaged in ACTA negotiations.

These rules could encourage big pharmaceutical companies to file frivolous patents to extend their monopolies and high prices on medicines, while at the same time discouraging the practice of parallel importation. Parallel importation is an important way for a country to reduce medicine prices by enabling it to import a patented product marketed in another country at a lower price.

“The lack of transparency is completely unacceptable and increases suspicions that the Agreement under negotiation is on behalf of narrow corporate interests,” said Malpani. “Under these circumstances, we can only assume that the final text could do great harm in developing countries and undermine the balance between the protection of intellectual property and the need to provide affordable medicines for poor people.”

We are further suspicious of the exclusion from negotiations of Brazil, a country that would be likely to support the wider availability of generics and discourage any extension of intellectual property rights that would exceed minimum obligations under global trade rules. Of the 12 states plus the European Union taking part, only two, Mexico and Morocco, are developing countries.

Since November 2008, customs officials in the European Union have seized at least 18 shipments of legal generic medicines from India and China to developing countries, including medicines to treat HIV and AIDS and heart disease. In spite of criticism from public health agencies, including UNITAID, the WHO and many civil society groups, the EU is refusing to re-examine the regulation under which these seizures have been made and could now pushing for it to be extended globally through free trade agreements and ACTA.

Malpani said: “It is unacceptable for countries to negotiate any new international standard on intellectual property without addressing the public health needs of countries that could be adversely affected. The European Union should halt its unlawful seizures of generic medicines rather than trying to persuade other countries to put their legal systems at the service of drug companies.”