by Shawn Zeller, CQ Staff
Published at CQ WEEKLY
Don’t look now, but infringing on a prescription drug patent seems to be a violation of human rights.
That’s just one of the oddities in a battle brewing between the government of Thailand and a Washington-based advocacy group called USA for Innovation. Late last month, the group took out a full-page ad in The Wall Street Journal, likening the government of Thai Prime Minister Surayud Chulanont, who came to power in the wake of a military coup last summer, to the repressive regime in neighboring Myanmar, a longtime and often brutal violator of basic human rights.
It turned out, however, that the ad’s sponsors saw the Thai regime’s main trespass as pharmaceutical, not strictly political: It had recently approved the importation from India of some generic treatments for AIDS and heart disease. “Such theft,” the group thundered, “costs America $250 billion and 750,000 jobs per year.”
Perhaps. But the rest of the international human rights community isn’t exactly rallying to what appears to be a crusade captained by American drug companies. Indeed, human rights activists say that World Trade Organization (WTO) rules give the Thai government every right to make cheaper generic drugs available to its citizens under the provisions of compulsory licensing, ie., a mandate for patent holders to permit other companies to make the same product. Pharmaceutical companies reached an initial round of compulsory licensing agreements in the 1990s, when South Africa sought to make AIDS treatments more widely available to its impoverished AIDS-afflicted citizens.
In fact, says Robert Weissman, director of the human rights group Essential Action, “Thailand is doing exactly what anyone who cares about public health would want them to do.”
In 2001, the World Trade Organization revised its rules to permit any country to issue compulsory licenses for any drug it pleases, provided that a generic manufacturer first tries to negotiate a deal with the patent holder.
American drugmakers therefore aren’t objecting to Thailand’s importation of cheaper generic substitutes for the U.S.-made AIDS treatments: Merck & Co.’s Stocrin and Abbott Laboratories’ Kaletra. Rather, they are taking issue with Thailand’s approval of the substitute heart medicine, a copy of the Plavix pill, manufactured jointly by Bristol-Myers Squibb Co. and Sanofi-Aventis. That move potentially could make compulsory licensing a routine principle for nations importing all kinds of pharmaceuticals.
Which would seem, in turn, to be the reason that Congress has lately taken up the cause of USA for Innovation even though the group’s drug industry supporters have yet to make themselves officially known. In March, four Democratic senators, Robert Menendez and Frank R. Lautenberg of New Jersey, Dianne Feinstein of California and Thomas R. Carper of Delaware, as well as Independent Joseph I. Lieberman of Connecticut, wrote to U.S. Trade Representative Susan C. Schwab asking her “to encourage the Royal Thai Government to consult with our innovative companies,” to address the new Thai policy seeking “to expropriate patents on all manner of innovative medicines not used to address urgent public health needs.”
And not long after that, at the end of April, Schwab’s office added Thailand to a priority watch list of violators of U.S. intellectual property rights. At a press briefing that day, USTR official Victoria Espinel said her office was not accusing Thailand of violating WTO rules; it was, rather, noting the new licensing among a number of unspecified intellectual property concerns in the Thai case.
International trade watchers again weren’t buying the reasoning. The USTR decision came across as “arbitrary and political,” says James Love, director of Knowledge Ecology International, a Washington advocacy group that focuses on expanding drug availability in the developing world. “Just a list of people that lobby groups want put on the list.”
Still, no one seems to know with certainty just who these particular lobbyists are. Mark Grayson, a spokesman for the main prescription drug trade group PhRMA, says it does not fund USA for Innovation. A Merck spokesman also denied that it had provided funding. Neither Abbott Laboratories nor Bristol-Myers Squibb responded to requests for comment.
Ken Adelman, the top arms control negotiator in the Reagan administration, is listed as USA for Innovation’s executive director but only offered a statement reiterating the content of the group’s ad campaign.
But Adelman’s other job, as a senior counselor to the public relations firm Edelman, has stirred great interest in the Thai press. Edelman has several drug industry clients, and until last week the company represented Thaksin Shinawatra, the former Thai prime minister. Edelman spokesman Todd McGovern would not confirm or deny that the firm was involved.