South African court battle damages drug industry’s image

The Pharmaceutical Manufacturers Association and 39 of its members have lost one crucial battle inside Pretoria’s High Court and a larger one outside. The industry’s image has suffered irreparable damage from the case and has been portrayed as putting profits before lives in the country.

The multinational pharmaceutical companies are fighting the South African government’s Medicines Control Act, passed in 1997. They want to stop the government adopting various measures to lower the price of drugs in the country.

The pharmaceutical manufacturers had tried in thousands of pages of legal argument to confine the court battle to one of technical legal wording, much of this around the clause that would have allowed for parallel importing of drugs. But the judge allowed a late application by an AIDS activist group to participate in the trial.

This move, and the pressure internationally from human rights groups, has refocused the trial on the issue of making drugs for HIV and AIDS affordable to millions of South Africans who face an early death from AIDS related causes.

The Treatment Action Campaign, which lobbies for cheaper access to drugs for people living with HIV and AIDS, applied to be treated as a “friend of the court” (amicus curia). Its application was vigorously opposed by the drug companies, which claim that they are defending their constitutional rights and the rule of law. The judge, however, accepted the argument that the action group brought a special dimension to the trial and made it clear he believed that issues around affordability of drugs for the HIV/AIDS crisis was one which needed urgent treatment.

The trial was postponed to mid-April so that the Pharmaceutical Manufacturers Association can reply to the action campaign’s argument.

As the court case began unfolding, moves to reduce the costs of AIDS drugs were taking place outside the court arena. Cipla, an Indian company that produces cheap generic drugs, decided that it would use South Africa’s patent laws to apply for a compulsory licence to supply generic antiretrovirals to South Africa. And Merck, one of the pharmaceutical companies involved in the UNAIDS (the joint UN programme on HIV/AIDS) access initiative, which is also involved in the court case, offered to drop the prices substantially on two of its antiretrovirals. Cipla’s move puts the spotlight on the South African government, which has recently been enjoying the effects of the good public relations activities of the activist groups. Its views on HIV/AIDS and medicines, however, are not clear after a year of “denial,” during which President Thabo Mbeki questioned whether HIV caused AIDS.