The announcement last Thursday that 39 international pharmaceutical companies had abandoned their legal efforts to stop South Africa from importing cheaper, generic anti-AIDS drugs was presented almost universally as a triumph of David over Goliath. The Financial Times, conveying the sentiments of the British charity Oxfam, said: “South Africa is to the global pharmaceutical industry what Vietnam was to the US military. Nothing will be quite the same again.” Hong Kong’s South China Morning Post declared, “To the four million South Africans suffering from HIV, this is more than a victory, it is the rebirth of hope.” Johannesburg’s Saturday Star pronounced, “[I]t represents the power of mass action to make even huge multinational corporations back down.”
Most papers suggested that the drug companies capitulated because of the PR hit. Libération of Paris huffed: “Entrenched in an untenable position, the pharmaceuticals wound up throwing in the towel. The damage to their image would have been devastating if, in a country where close to 5 million people are doomed to die from AIDS, they had continued to plead the primacy of profit over the right to life.” The SCMP concluded that the companies “finally accepted the weakness of their case in the face of a humanitarian disaster.” La Libre Belgique of Belgium posited that, despite appearances, Big Pharma may in fact have come out on top because they got the South African government to affirm the primacy of their patent rights while at the same time appearing humanitarian by giving up their lawsuit.
The immediate consequences for South Africa’s health-care system are hard to predict. The country’s health minister announced that the government would immediately implement the 1997 law that Big Pharma had challenged; however, according to the Sunday Independent, in the same press conference, she “made it clear that providing Aids drugs was not a government priority.” The minister said that anti-retroviral drugs “remained too expensive” and that the government preferred to deal with the “opportunistic diseases” that afflict people with HIV. An AIDS activist responded by pointing out that a cost-benefit analysis has not been prepared nor has a detailed treatment plan been drawn up to deal with the nation’s HIV epidemic. President Thabo Mbeki’s longtime (though now abandoned) denial that HIV causes AIDS, a piece of medical apostasy that many claim set back South African AIDS treatment by years, was in evidence when a drug company spokesman confirmed that “someone in government had changed a phrase in the final letter of agreement between the [Pharmaceutical Manufacturers’ Association] and government from ‘HIV and Aids, malaria and tuberculosis’ to ‘communicable diseases,’ thus avoiding mention of HIV and Aids.”
The government’s reluctance to declare AIDS a national emergency, although as many as one in eight citizens are HIV-positive, may keep cheap AIDS drugs out of reach. The Saturday Star reported that the disputed 1997 law does not challenge drug companies’ patent rights, which allow them a 20-year monopoly on drugs they develop. Since anti-retroviral drugs are recent creations, their patents have years to run. Several countries, notably Brazil, have taken advantage of what Canada’s Globe and Mail described as “an escape clause” in the World Trade Organization’s Agreement on Trade-Related Intellectual Property Rights that allows countries to import or produce generic drugs in the case of “an emergency.” Nevertheless, there will be benefits for consumers: South Africa’s Sunday Times pointed out that when the legislation takes effect, pharmacists will be compelled to tell customers about generic alternatives; pharmacists and doctors will be prohibited from accepting manufacturers’ incentives; and “[d]octors, pharmacists and hospitals will receive a standard dispensing fee and no longer be able to profit by marking up medicines.” An editorial in the same paper said:
We now need to admit that the victory scored this week was a minor one in the battle against HIV/AIDS. The real battle is the one we will have to fight in our policies, in our minds and in the way we conduct our sexual relations. This will require the same kind of leadership that the government showed in the fight against pharmaceutical companies. It is a war that will need the backing of our first citizen, who, while no longer questioning scientific fact about AIDS, cannot be allowed to maintain his silence on the disease.
The Financial Times profiled Zachie Achmat, an openly gay, HIV-positive veteran of the anti-apartheid movement, who, the paper said, “has come to personify a disease still taboo in his country despite its ubiquity.” Achmat refuses to take anti-retroviral drugs until they are available to all South Africans. He formed the Treatment Action Campaign, the country’s leading AIDS lobby, “when he realised that people in the west were no longer dying from HIV.”
Surprisingly few voices were raised to defend the pharmaceutical companies. Austria’s Der Standard advanced the argument that companies invest in research in order to make profits, which is only possible if they are guaranteed patent rights for “at least a few years. … This is why we must hope that other countries won’t follow the example of South Africa.” (German translation courtesy of BBC Monitoring.) An op-ed in the Sunday Telegraph attacked the oversimplification of those who brand large drug companies “symbols of capitalist rapacity, second only in their wickedness to the tobacco companies” and defend the plucky manufacturers of generic drugs. Dr. Anthony Daniels concluded:
The multi-nationals are portrayed as blood-sucking parasites, feeding off human misery. But if that is the case, then the companies that produce generic drugs are feeding off the pharmaceutical multi-nationals’ expenditure on research. Is the parasite of your parasite really your friend? … The main difference between the two types of pharmaceutical company is in the market niches they occupy. Let us therefore lay St Generic to rest. No miracles will be produced by worshipping at his shrine.
The battle of the Ba: Britain’s Observer reported that concerns about claims for personal injury and property damage might bring an end to one of the world’s oldest remaining ball games. The Ba, “a game peculiar to the Orkney Islands … involves two teams of hundreds of players battling to shift a rock-hard leather ball. … There are no rules.” Traditionally, the local council covered the cost of any property damage caused by the game, but the litigiousness of the modern age worries the finance committee. A member told the paper, “While we do not believe that the council would be liable for personal injuries sustained during the Ba, we realise that times have changed and that there has been an Americanisation, if you like, of the way people view liability.”