The recent Executive Board proceedings of the World Health Organization (January 20-25, 2014) provided new ground for unlikely allies South Africa and Australia, as both struggle to temper intellectual property laws in the interest of public health. We observed the proceedings as non-governmental organization representatives.
A week earlier on January 17, a leaked memo detailed a subversive campaign by a U.S.-based lobbying firm, Public Affairs Engagement, to delay South Africa's planned reforms to intellectual property laws, reforms which would increase access to life-saving medicines in the country. A subsequent leaked email on January 20 from a Merck executive implicated 24 other major pharmaceutical companies including AstraZeneca, Bayer, Bristol-Myers Squibb, Johnson & Johnson, Lilly, Novartis, Pfizer, Roche and Sanofi.
In the leaked memo, Public Affairs Engagement claimed that South Africa is "ground zero" of the intellectual property debate. Utilizing astroturf tactics, they envisioned an alliance called "Forward South Africa," which would serve as a front organization for carrying forth their pro-intellectual property messages. Their proposed campaign aimed to convince South Africans that patented drug prices were not responsible for the failures of their health system. Further, the memo warned that should South Africa pass their planned reforms, other countries such as Brazil and India may follow suit in flouting intellectual property rights in the interest of public health.
The controversy came to a head during the fourth day of the WHO proceedings when China, Libya, Republic of Korea, and South Africa introduced a resolution on access to essential medicines (EB134/CONF./14). South Africa's Director General of Health Malebona Precious Matsoso led discussion of the resolution with a timely, forceful, and compelling statement referencing the week's events.
"This is not the first time that South Africa has been under such an attack, even in the face of the most devastating HIV/AIDS and TB co-morbidities," Matsoso stated. She was referring to the 2001 legal battle faced by the South African government for their efforts to provide cheaper antiretroviral medications via generic substitution and parallel importation. Thirty-nine pharmaceutical firms sued the South African government at that time, and Nelson Mandela was named as the first defendant in the case.
Matsoso's statement charged the atmosphere of the WHO Executive Board room. Namibia, India Brazil and several other nations made impassioned statements supporting South Africa and underscoring the need for safeguarding flexibilities enshrined within the 1994 Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. TRIPS flexibilities, which were affirmed by the Doha Declaration in 2001, protect the ability of countries to rely on generic production to provide life-saving medications for their people.
Developed nations were mostly silent or ambivalent during discussion of the Executive Board resolution, except for one in particular.
Recalling its fight against the tobacco industry in recent years, Australia too made a statement affirming the value of TRIPS flexibilities. In 2011, Australia took a bold approach to curb tobacco use by passing the Tobacco Plain Packaging Act, making it the first ever country to do so. This move, however, was met with multiple legal assaults by multinational tobacco firms and their interests opposing the country's infraction on corporate trademarks and thus, intellectual property.
From March 2012-September 2013, numerous countries heavily influenced by tobacco interests -- Cuba, the Dominican Republic, Honduras, Ukraine and Indonesia -- challenged Australia's stance on trademarks by filing cases through the World Trade Organization.
Further, three major tobacco firms -- Phillip Morris, British American Tobacco and Imperial Tobacco -- built a thinly-veiled campaign, similar to the one proposed by Public Affairs Engagement, to drive grassroots support against plain packaging. Under the guise of the "Alliance of Australian Retailers," this campaign claims to represent small business owners in Australia.
For how long will we let this continue?
Will we allow corporations to strong-arm governments to do their bidding and perhaps worse still, use astroturfing tactics to manipulate public opinion?
We applaud the courageous move by Australia to stand with South Africa during the WHO Executive Board meeting.
We hope that all developing and developed countries alike will support the valiant efforts of these two nations in choosing to protect the lives of their people over intellectual property.