In my opinion, this letter represents a real change in US foreign policy, and appears to be a huge victory for public health groups on a very important issue. Many people deserve credit for persuading the Vice President to signal a fundamental shift in US policy on a core element of trade policy. There will be a good deal of discussion now to determine just how Mr. Gore's statements will be translated into concrete actions at the USTR, Department of State and other federal agencies. But this is a very important and good first step.
Jamie Love <love at cptech.org>
- Vice President Gore's June 25, 1999 Letter to
James E. Clyburn, endorsing the use of compulsory
licensing and parallel imports of pharmaceutical
drugs in South Africa
http://www.cptech.org/ip/health/sa/vp-feb-25-99.html
June 25, 1999
The Honorable James E. Clyburn Chairman, Congressional Black Caucus U.S. House of Representatives Washington, DC 20515
Dear Mr. Chairman:
Thank you for your letter on behalf of the Congressional Black Caucus inquiring into the issue of affordable AIDS medicines in South Africa. I share with the Caucus an abiding interest and affection for the people of South Africa and of Africa as a whole, and I am happy to bring you abreast of developments in our efforts to resolve our differences with South Africa over trade in pharmaceuticals.
I want you to know from the start that I support South Africa's efforts to enhance health care for its people -- including efforts to engage in compulsory licensing and parallel importing of pharmaceuticals -- so long as they are done in a way consistent with international agreements.
As you know all too well, AIDS has reached epidemic proportions n South Africa. More than three million South Africans are HIV positive, and the virus is spreading at an astonishing, horrifying speed -- infecting more than a thousand people a day. AIDS is tearing apart communities and wiping out families, turning wives into widows and children into orphans. At the current pace, more than 2.5 million South African children will lose both parents to AIDS in the next ten years. And the financial means to battle the crisis is itself a casualty; South Africa's economic growth is slowed by 1 percent each year due to the impact of HIV/AIDS.
That is why I put the issue of AIDS at the top of my agenda during my trip to Cape Town last February for a session of the U.S-South Africa Binational Commission. Then-Deputy President Thabo Mbeki and I had a lengthy discussion on the crisis. He has launched an important campaign of awareness and prevention, but he knows he needs to provide effective treatment to those for whom prevention is no longer an option.
In 1997, in an effort to enhance health care for all South Africans, the National Assembly passed amendments to the Medicines Act that granted the government broad, but unspecified authority to provide more affordable drugs to its people. Out of concern that this new law might be used in ways that violate patent rights, more than 40 pharmaceutical firms -- about one third from South Africa, one third from Europe, and one third from the U.S. -- challenged the law in South African courts, claiming the law violates the South African Constitution. After more than a year, that case is still pending.
Clearly, there is a global consensus on the need to protect intellectual property. That is why the 134 nations of the WTO concluded the WTO/TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement to establish international standards for intellectual property protection.
The Administration has shared its own concerns with South Africa over the more vague provisions of the Medicines Act. We have asked the Government of South Africa to clarify the actions it would take under the Act, and assure us the actions would comply with international agreements and not undermine legal protections for patent holders.
Under her independent authority mandated by Congress, the United States Trade Representative named South Africa to the "watch list" during her Special 301 Annual Review in 1998. Naming a country to the "watch list" -- the lowest designation in the review -- triggers no sanctions or threat of sanctions, but calls for bilateral efforts to resolve the issue. It is also important to note that naming South Africa to the watch list was not done solely in response to pharmaceuticals, but extended to other issues, including protections for computer software, CDs, and other intellectual property.
As you may know, the pharmaceutical industry recommended this year that South Africa be elevated two levels to the designation "Priority Foreign Country." Such a designation would have required the Government of South Africa to resolve this issue to the USTR's satisfaction within a set time, or face trade sanctions. I believe that such an action would have undercut our cooperative efforts to resolve this issue with South Africa, and I urged the USTR to reject the industry recommendation. In the end, USTR maintained South Africa on the "watch list," where it had been the previous year.
In my meeting with then-Deputy President Mbeki here in Washington in August of last year, he and I agreed to seek a solution that addressed the need to bring better health care to South Africans and, at the same time, account for the legitimate interests of manufacturers. I proposed to then-Deputy President Mbeki that -- to speed the availability of lower-cost pharmaceuticals in South Africa -- we work toward a resolution within a framework that included parallel importing and compulsory licensing, consistent with international agreements.
Our efforts to resolve the issue have been slowed by the ongoing litigation, but my view is the same now as it was then: I support South Africa's effort to provide AIDS drugs at reduced prices through compulsory licensing and parallel importing, so long as they are carried out in a way that is consistent with international agreements.
During our meeting in Cape Town in February of this year, then-Deputy President Mbeki and I again reviewed the issue and agreed to continue our efforts to resolve our differences. I am confidant that we will reach a mutually satisfactory agreement.
Meanwhile, I thank you for your support of the U.S.-South Africa friendship, and for the commitment of the Congressional Black Caucus to confront the growing crisis of AIDS in Africa.
Sincerely,
Al Gore
-- James Love, Director, Consumer Project on Technology I can be reached at love at cptech.org, by telephone 202.387.8030, by fax at 202.234.5176. CPT web page is http://www.cptech.org