If Mngoma lived in the United States and had health insurance, she might be taking a complex drug cocktail that could prolong her life indefinitely. But in most of the world, the combination of AIDS and poverty almost always leads to death. Ninety percent of the world’s 33 million HIV/AIDS cases are in Africa, Latin America and Asia. The vast majority of the infected people in those areas are too poor to afford the costly miracle drugs that can make AIDS a chronic disease rather than a death sentence. The cocktails consist of a combination of three or more drugs, usually including protease inhibitors such as Crixivan, produced by Merck, and other antiretrovirals, such as AZT, produced by Glaxo Wellcome. In South Africa the treatments can cost more than $750 a month, far beyond the reach of most people. Yet 8 percent of the country’s 38 million people are infected with the AIDS virus. U.S. Surgeon General David Satcher termed the situation “an unprecedented emergency.”
In late 1997 South Africa decided to take action. It passed legislation that would allow the government to do whatever was necessary to secure cheap, effective drugs. Essentially, the government gave itself the right to bypass the giant Western pharmaceutical companies that sell AIDS drugs in South Africa, and either produce or import cheaper drugs itself. The move has generated passionate responses round the world, from other developing nations to Western activists to international drug companies. The companies, backed by the American government, say South Africa’s move threatens their patents–and with them, the revenues they rely upon to fund the costly development of such drugs in the first place. But South African supporters of the law, along with Western AIDS and consumer-rights activists, see the issue more simply. They believe the pharmaceutical firms are putting profits before lives.
The global tumult centers on nine lines in a South African bill titled the “Medicines and Related Substances Control Amendment Act.” The first clause of section 15C of the law gives the South African minister of health the power to “prescribe conditions for the supply of more affordable medicines in certain circumstances so as to protect the health of the public… notwithstanding anything contrary contained in the Patents Act.” The act doesn’t spell out exactly what the government can and can’t do to get AIDS drugs. But theoretically, local companies could produce their own versions of drugs patented by the pharmaceutical giants, a practice known as compulsory licensing. They could also import AIDS drugs from other countries if they could get a better price overseas than the one being offered by companies at home. The law is murky but threatening, and drug companies and Washington argue it will lead to violations of the intellectual-property-rights rules developed by the World Trade Organization. As soon as the bill was passed in November 1997 it was condemned by the South African drug industry, which is largely made up of subsidiaries of U.S. and European multinationals. The companies soon took the government to court.
In fact, the drug companies have arguments that go beyond the courtroom. They say that, regardless of price, the treatments are complicated and unlikely to be administered effectively in a country with poor medical infrastructure. “The South African government is creating a false opposition between intellectual-property rights and access to medicines,” says Tom Bombelles of the Pharmaceutical Research and Manufacturers of America, an industry trade group in Washington. “It’s much more complicated than getting pills to people. Where there is one doctor for 10,000 people, no roads and no hospitals, [drug cost] is a red herring.” What’s more, if AIDS cocktails aren’t taken correctly, new and more resistant strains of the virus may spring up.
Drug-industry officials say they are working to find safer and more practical ways to improve drug access in Africa. In May, Bristol-Myers Squibb launched a $100 million program for HIV/AIDS research in five southern African countries including South Africa. Most of that money will go toward developing affordable terminal care. Glaxo Wellcome has offered to provide AZT to the South African public-health service at a 70 percent discount of the world average price, for use in preventing transmission of the virus from infected mothers to their babies. But the government says that even with the discount, it couldn’t afford to treat the thousands of infected women. In fact, it plans to cut off a trial program at Soweto’s Chris Hani Baragwanath Hospital because of AZT costs. Program head Dr. Glenda Gray objects, arguing that care for AIDS-infected orphans will be far more expensive in the long run. Glaxo agrees. “We see ourselves as a role player in getting access to the developing world,” says Vicki Ehrich, director of corporate affairs in Johannesburg. “But there’s an international antipatent lobby that doesn’t believe drugs should be patented at all.” Not so, counter South African officials. “No one in government believes pharmaceuticals should not be patented,” says Dr. Ian Roberts, special adviser to the minister of health. “The dispute is really about a different interpretation of TRIPS [the World Trade Organization’s Trade-Related Intellectual Property Rights agreement].” Western activists agree. “This goes beyond a trade dispute about [fake] Levi’s jeans,” says James Love of the Consumer Project on Technology, a consumer-rights group in Washington.
Since the South African law is still tied up in court, the question of whether it will produce violations of trade rules remains unanswered. But the battle continues on other fronts. Last year U.S. officials–who say they’re doing what’s right for global trade rather than just responding to heavy lobbying from the drugmakers–told South Africa that 15C was too vague and should be changed. This year the U.S. drove home the point by placing minor sanctions on marginal South African goods, like vehicle parts. It also put South Africa on a watch list for more serious sanctions.
South Africa’s supporters are exerting pressure of their own. In his capacity as the head of the U.S.-South Africa Binational Commission, Vice President Al Gore has several times encouraged South African President Thabo Mbeki to modify 15C. This week the American AIDS-rights group ACT UP will stage its fourth noisy protest in a month against Gore, at a $1,000-a-plate fund-raiser outside a swanky Philadelphia hotel.
But even the U.S. government is divided. Some State Department and White House officials suggest that 15C be amended to limit compulsory licensing and parallel importing to AIDS drugs only; trade officials, meanwhile, want 15C killed altogether. Neither South Africa nor the drug industry appears ready to give an inch. As the industry’s challenge to the new law winds its way to the South African Constitutional Court, both sides are girding for a long fight; no one expects a resolution until next year. Activists in South Africa and the United States are planning big demonstrations over the next few months. And drug companies are threatening to take their investments–and their jobs–out of South Africa.
Meanwhile, the doctors at Rietvlei do what they can. “If Africa had access to these medicines, then it would be Africa’s responsibility to find a way to make them work,” says Rietvlei Superintendent Nigel Hoffman. Until then, he will continue to keep his HIV-infected patients, like Veronica Mngoma, in the dark about the existence of drugs that could save their lives. “If we told them there was treatment but you can’t afford it, that would be cruel.” It’s a small kindness, but right now it’s about all he has to offer.
