Richard Elliott
Ottowa Hill Times
October 27, 2003

Recently, Industry Minister Allan Rock and International Trade Minister Pierre Pettigrew announced Canada would change its patent laws to give generic pharmaceutical companies permission to produce cheaper versions of patent-protected medicines for export to developing countries. The Ministers were responding to a call from Canadian civil society organizations and from Stephen Lewis, UN special envoy on HIV/AIDS in Africa, to implement a recent agreement loosening WTO rules on patents in order to allow just such a response.

We joined the chorus, here and abroad, congratulating the government for moving swiftly to clear the legal path for developing countries to get more affordable medicines. We also welcomed the recent public statements by the United States and Mexico that they will not use identical rules in NAFTA to block Canada's initiative, in essence agreeing to the same flexibility under NAFTA that has just been agreed to at the WTO.

Canada will be the first country to take this step. We can set an example for others. But with that leadership role comes the responsibility to implement the WTO decision in good faith. Canada's move is being watched closely around the world by other countries contemplating similar measures to test the new flexibility of WTO rules. And, with one-third of the world's population lacking access to even essential medicines – some 2 billion people by the World Health Organization's estimate – the world desperately needs other countries to follow suit. Canada's approach can set a precedent.

This is why, beyond the headlines, the fine print of Canada's legislative reform matters. So far we have heard vaguely worded promises of action, with frequent references to "AIDS drugs", "pandemics" and "health emergencies". Conspicuously absent is any reference to medicines for other diseases and for situations other than crises. It is time for the Ministers to publicly commit that Canada will not limit its initiative to such narrow circumstances or a handful of diseases.

Why is this significant? Because of what has happened in the almost two years it has taken for countries to agree on loosening WTO rules to allow generic medicine exports. During that time, some developed countries (led by the United States) and the brand-name drug companies pushed hard to limit the scope of any such agreement. They even attempted to limit any supply of generic medicines to just those needed for treating specific "epidemic" diseases (such as HIV/AIDS, tuberculosis and malaria) and only in cases of "emergencies".

The gall of this effort was all the more shocking given an earlier unanimous declaration by WTO countries that WTO rules should be interpreted and implemented in a way that allows countries "to promote access to medicines for all", with no such qualifications or caveats. Furthermore, developing countries represent but a very small portion of the companies' total sales and profits, meaning competition from generic producers in those markets will have little or no impact on their incentive to invest in researching new medicines.

Fortunately, this misguided attempt to compromise global health failed. Developing countries and human rights activists rejected these cynical proposals to leave poor people to suffer and die without medicines unless their illness were on an "approved" list. They rejected as equally unsound the notion that developing countries should only have affordable medicines once problems have reached "emergency" proportions. Such proposals are ethically repugnant and unsound from a public health perspective.

This is why, as Canada now moves to amend its patent laws, we must remember that avoiding such limitations was the outcome of an intense global debate at the WTO. Why would Canada re-open a settled debate and renege on the international WTO agreement it has just endorsed? Countries have agreed to address the "public health problems" facing developing countries. Nowhere do WTO rules say Canada may allow exports of generic medicines only for "epidemic" diseases, or only for infectious diseases, or only for specifically named diseases. Nothing in WTO rules prevents Canadian manufacturers from supplying generic medicines to developing countries before their health problems become health crises. As the first nation to take advantage of the recent WTO decision, Canada should not undermine its full benefit by re-introducing such restrictions, to the detriment of poor people in developing countries.

Therefore, the question for Ministers Rock and Pettigrew – and indeed, for current and future Prime Ministers Chrétien and Martin, who have often stated their concern for the welfare of developing countries – is whether Canada will arbitrarily and unnecessarily limit our country's response to the health needs of the developing world.

Ministers, will you introduce legislation that allows access to cheaper medicines for people in developing countries only if they have specific illnesses and if their country is facing an emergency? Would we accept such an approach if Canadian lives were at stake? How can it be morally or medically right to decide that we may supply medicines for treating people with HIV/AIDS or malaria but not people with meningitis or cancer? Why should Canada be in the business of telling developing countries that a given health problem is not serious enough to constitute an "emergency" and therefore poor people must go without medicines until more of them are ill or dead?

Canada has an opportunity – and an obligation – to show leadership with this effort to increase access to affordable medicines in the developing world. Will the government give in to pressure from "big pharma" to deny medicines except for a handful of diseases or for emergencies? Or will it introduce legislation that helps as many people as possible by taking full advantage of the flexibility now allowed by the recent WTO decision?

Ministers, do the right thing. Follow through quickly on this laudable initiative, without compromising either principle or global health.

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