Access to life saving medicines is once more at the heart of trade negotiations between Thailand and the US. And again the US administration and businesses have chosen to bully the Thai government in advance of a meeting in Washington prior to the release of the Special 301 Report» that impacts on trade conditions between the US and its partners.

Compulsory licensing (CL) has been the casus beli of an ongoing battle started when the junta government led by Surayud Chulanont issued compulsory licences for antiretrovirals and anti-cancer drugs in September 2006 in accordance with the TRIPS agreements part of the Doha convention. These CL were not issued without difficulty and the pharmaceutical industry in its various emanations and stooges, was not prepared to give up without a dirty fight.

The ‘Empire’ did and is still doing its best to discredit, threaten and intimidate Thailand and as the USTR is reviewing the status of its trade partners in preparation of the next Special 301 report, the bullies suggested that Thailand status should be downgraded even further from the Priority Watch List (PWL) to the Priority Foreign Countries (PFC) listing. Such downgrading would only make it harder for Thai businesses to trade with US businesses.

Though Thailand’s decision to issues Compulsory Licences was not violating its legal obligations» under World Trade Organization rules (the previous 301 special report complained, without justification, that “the lack of transparency and due process exhibited in Thailand represents a serious concern”), the deception continues on the part of the pharmaceutical industry, US lobbyists (such as USA for Innovation which website has gone offline and was suspected to be one of former Prime Minister Thaksin’s incarnations) , lazy journalists, think tanks on the Pharma’s payrol , and zealot bloggers.

These self righteous and self appointed guardians of the US Intellectual Property consider that some kind of moral values (understand double-standard) prevail over international WTO agreements. Indeed they consider it fair for the US, a developed country, to use the TRIPS agreements to rip off third world and developing countries of their IP (and even developed countries), but that Thailand’s use of the same international treaty is totally unacceptable, unjustifiable and just plain “theft”. They also challenge the legality of previous CL since they were issued by a military government though neither the legality of these CL nor the sovereignty of the Thai government that issued them has ever been questioned by the US Administration. But to no avail, the Zealots continue to condemn those who condone the CL as colluding with the military. This is forgetting that in 1991-92, it is a military government led by Anand Panyarachun that implemented the 100% condom programme in Thailand’s brothels and amongst sex-workers, successfully preventing a generalised epidemic amongst the Thai population. If they were to follow their logic, they should also condemn the 100% condom programme.

More than two years after the first CL being issued and thousand of life being saved, deputy Commerce Minister Alongkorn Ponlaboot is torn between giving up under the lobbyist’s pressure and therefore putting the life of thousands at risk or taking a stand and fighting the bully back.

Let’s examine the recriminations of the American Businesses on IP rights violations in the pharmaceutical domain as summarised in the Bangkok Post.

• Thailand has unclear policy on compulsory licensing

What has happened since 2006 should show that Thailand has a very clear policy on CL, that of issuing CL on overpriced life-saving medicines using international WTO agreements: “The government will continue to impose compulsory licensing (CL) on essential but expensive drugs” as reported by The Bangkok Post. Compare that to recent CL issued by the US on F22 fighter parts or the Blackberry. Prime Minister Abhisit and the Public Health Ministry have made it clear that “The Public Health Ministry will enforce CL only when necessary by consulting with the private sector especially the Pharmaceutical Research and Manufacturers Association.”

• Thailand is likely to issue more CL without prior discussion with drug firms

Not only Thailand has in the past spent a lot of time talking to an often deaf Pharmaceutical Industry, but when it comes to issuing CL under the TRIPS agreement, Thailand is under no obligation to engage in preliminary talks. The US admninistration and Lobbyists are adopting here a very deceptive approach: they sould be well aware of the conditions necessary to issue CL since they are on the top of the list of country using the TRIPS to issue CL on a broad range of items (see above).

• Fake drugs in Thailand are rampant and punishment is light

Another deceptive approach to CL that consists in conflating generics with counterfeit drugs. As noted elsewhere, it “is like conflating sex work with trafficking. One provides services people want at a price they agree to pay, the other is illegal and dangerous. But waging war on the first is almost certainly going to make it harder to wipe out the second.”

Indeed fake drugs may be rampant in Thailand, but these have nothing to do with the right of a country to produce generic drugs, which are identical to and as efficient as brand names, with only the price as difference. Fakes are fakes.

• There is no protection of exclusive data in Thailand

This issues is a larger and more technical one. It refers to the data generated during the development of a new drug or of an existing drug for a different use. This data is very precious and usually belongs to the people who have produced it (often at a cost). It may for example comes out from a clinical trial conducted to test the efficacy of a drug against a placebo (an inactive compound). It is however common practice for this data to belong to all those who have been involved in its production. For instance, in the case of a clinical trial conducted in Thailand, with Thai volunteers ready to put their life at risk so that a pharmaceutical company can test a new drug, the data would belong to the industry and its Thai collaborators. The Thai government may even have a view that this data belongs to the Thai people.» Technically and as a consequence, all parties involved can use the data. What the Pharma wants is the exclusive use of data that have been generated on the back of volunteers in this case not considered better than guinea pigs.

• Thailand new Product Liability Act poses legal threat to drug companies that conduct clinical trials of new drugs in the country.

This is beyond belief. What the Liability for Damages Arising from Unsafe Products Act 2551 B.E. sets out is a law that provide protection to the consumer for damages caused by “Unsafe product” that “cause or may cause damage, regardless of whether it was caused by negligence during the production process or the design process or by no guidelines being given for storage, or warning, or information related to the product, or guidelines being given but in an incorrect manner or vaguely so as to be improper when considering the condition of the product, including the normal method of use and storage for the product.”

Similar laws exist in all Western countries and aims at protecting the people by preventing unscrupulous businesses to sale dangerous products. To suggest that such law poses a legal threat to drug companies says a lot about how the industry considers its market and the people who are ready to put their life at risk so that drug can be tested before being overpricely sold later.

There is therefore little of weight supporting the American businesse’s concerns other than them not being able to milk consumers and patients more than they already do. Following an uproar from advocacy and civil society groups at the news that the Thai government may relinquish on its rights to past and future issuance of CL before it meets with the United States Trade Representative (USTR) in Washington, Alongkorn Ponlaboot finally announced that “The Commerce Ministry has no policy and no right to stop further use of compulsory licences on additional drugs” and that “The government will continue to impose compulsory licensing (CL) on essential but expensive drugs.”

Alongkorn Ponlaboot deserves praise for standing against the U.S. bullies. But rest assured that the Pharmaceutical Industry and other lobbyists won’t stop here. There is much more at stake than the Thai market behind this war. The Thai may be leading the way and opening Pandora’s box from which will emerge further CL issued by bigger markets such as China. By trying to prevent CL in Thailand, it is their future interests in growing markets that they are trying to protect. But instead of fighting for outdated patenting system and IP rights they should better invest in developing new drugs (rather than recycling old ones or spending so much in PR) and on finding innovative ways to recoup their initial investment. It is probably too much asking.

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