Cheaper HIV/AIDS drugs coming

Dear Sir/Madam:

We were pleased to see your report on the passage of Bill C-9, which amends the Patent Act and the Food and Drugs Act to allow the export of generic medicines to countries in need. The bill authorizes the issuance of compulsory licences on pharmaceutical products that are still patented in Canada, so that generic manufacturers may produce them (but only for export to eligible countries).

However, we wish to correct an important error in the article. Your report states that under the new law, drugs that are imported by developing countries "must be used for public health emergencies only." This is incorrect.

There is no such restriction in Bill C-9 to only allowing compulsory licensing of pharmaceuticals for addressing public health emergencies (or only for specific diseases).

Bill C-9 implements a WTO Decision from August 2003. Several wealthy countries -- led by the US but, regrettably, with support from countries such as Canada -- indeed tried to limit that WTO Decision to only addressing emergencies or specific diseases.

Health and human rights activists, and developing countries, flatly rejected such proposals as unethical and as nonsensical public health policy. Those who will die of cancer or diabetes will be just as dead as those who die of HIV/AIDS or tuberculosis. Nor do we wait for things to reach a crisis stage before getting medicines to people at prices they can afford. Eventually, wealthy countries abandoned such proposals. The final decision, adopted unanimously, contains no such limitations.

Notwithstanding this, Canada originally flirted with unilaterally re- opening this debate by introducing such limits in its own law to implement that WTO decision. This backtracking from what Canada had endorsed internationally forced Canadian advocates to re-fight this battle. At the end, reason and decency prevailed on this point, and the Canadian legislation is not limited to just dealing with emergencies. This is an important point for your readers to appreciate.

One of the major problems that remains, of course, is that Canada's law includes a narrow list of medicines that can be compulsorily licensed for export. While regularly insisting that such a list would not be used to limit the bill to only addressing HIV/AIDS, TB and malaria, even as the bill was debated in the House of Commons, the government's representatives argued against adding additional medicines to the list, in part (incorrectly) claiming that the medicines in question did not deal with one of these three diseases.

This feature of the bill may, therefore, end up being an under-handed way to effectively limit the applicability of the bill to only certain diseases. Such an outcome would reveal bad faith on the part of the government.

Additional information and analysis of this Canadian bill is available at http://www.aidslaw.ca/Maincontent/issues/cts/patent-amend.htm (in English) and http://www.aidslaw.ca/francais/Contenu/themes/soinstraitements/brevet- amend.htm (in French).

Richard Elliott Director, Legal Research & Policy Canadian HIV/AIDS Legal Network www.aidslaw.ca

Conflict of Interest:

None declared