Kenya's Anti-Counterfeiting Act Challenged As Violating The Right To Health

from the confusing-generics-with-counterfeits dept

As a bunch of countries continue to negotiate ACTA, the Anti-Counterfeiting Trade Agreement, in secrecy, Kenya already has its own Anti-Counterfeit Act. Michael Geist points us to the news that that particular law is now being challenged in Kenya for violating peoples "right to health." The issue is worth following, because it will almost certainly become an issue assuming ACTA moves forward. Whenever we discuss ACTA, it's inevitable that someone stops by to say that anti-counterfeiting is really, really important to stop dangerous counterfeit drugs from being sold, potentially harming people. Now, I have no doubt that counterfeit drugs may be a serious problem -- but if that's the problem, we should target a narrow attack on that problem alone, not some wider "anti-counterfeiting" effort.

We've already seen that lobbyist-funded and promoted reports on the "counterfeiting problem" are widely exaggerated, and any real "problem" is much smaller than the numbers that get tossed around. Furthermore, recent studies have shown that counterfeit products quite frequently lead to purchases of the real product in the future (i.e., people aren't "fooled" into buying counterfeits -- they know they're buying counterfeits). But that's with things like luxury goods. What about drugs?

Well, we've already seen that big pharmaceutical companies conveniently like to use anti-counterfeiting laws not to stop dangerous counterfeit drugs, but to destroy legitimate generic drugs. It's not about making sure that drugs and people are safe -- but quite the opposite. It's about limiting competition so that these pharma firms can jack up prices even higher.

And that's the issue in Kenya. About 90% of the drugs in Kenya are generics -- for a very good reason. Those drugs are much cheaper and are helpful in saving many lives. The Kenyan anti-counterfeit law makes counterfeiting a criminal issue, rather than a civil one, and gives the power to police and border officials, who have no way of knowing counterfeit from generic, so often label generic drugs as being counterfeits. There are plenty of good reasons to try to stop counterfeit drugs from hitting the market, but if that's the real problem, any solution should be narrowly focused on that specific problem. Unfortunately, since it's quite often the big pharmaceutical lobbyists who help write and push through these bills, that's not how it works at all.


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  1.  
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    Dark Helmet (profile), Dec 30th, 2009 @ 7:46am

    Question

    I'm curious as to how both these pharma execs and pharma lobbyists think. As in, when they're taking these actions, pushing for and drafting legislation, do they actually connect the dots and understand that they're literally killing people? Or do they rationalize, as some here will certainly do, about how these practices in fact save more people than they kill and blah blah blah.

    The lobbyists...I'm not sure. I kind of think they just think about the job and not make the connection that what they're talking about is affecting real, living human beings. As for the execs...well, I for one have no problem believing those that run corrupt companies such as Bayer AG et al know full well they're killing people and are probably just happy that those people have darker skin.

    Those IG Farben habits die hard, after all....

     

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  2.  
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    Brian (profile), Dec 30th, 2009 @ 7:51am

    Re: Question

    The generic companies and those taking generic drugs are just an obstacle to money in their pockets. So the sooner that obstacle is removed the better.

     

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  3.  
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    Ryan, Dec 30th, 2009 @ 7:59am

    Re: Question

    Well, the individuals who are "literally killing people" here are the politicians that actually have the power to enact policy and sell their votes to the highest bidder. As the ones singled out to set a fair set of rules and then stay out of it, they have the obligation to take into account the action in the best interests of the public. I've said this before, but you can't really blame the players for engaging in this game when the government basically says, "hey, our votes are for sale. we'll intervene on behalf of whomever gives us the most money, and everyone else will get screwed."

     

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  4.  
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    Dark Helmet (profile), Dec 30th, 2009 @ 8:02am

    Re: Re: Question

    "I've said this before, but you can't really blame the players for engaging in this game"

    That's bullshit. I can blame everyone that is participating in these deplorable practices. If the government said we could murder one another if it meant a job promotion, I can still blame those that decide to take advantage of that allowance.

    I can blame all of them. And I do....

     

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  5.  
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    Ryan, Dec 30th, 2009 @ 8:17am

    Re: Re: Re: Question

    Okay, you can blame them, but if you're competing with someone else for a job that doesn't have the same qualms you do, guess who gets the job and who gets dead?

    I'm not saying these companies are devoid of blame--obviously, they don't have the public welfare in mind at all and sometimes take the lobbying route where they don't need to with a little innovation--but they do it because the government makes it the path of least resistance to making money(which is what businesses exist for, as they should). You don't bitch and moan about companies that have no power to do any of this and exist to make money(as they should), you bitch about the government for actually doing it when it exists to make a fair set of rules and doesn't.

     

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  6.  
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    Anonymous Coward, Dec 30th, 2009 @ 8:31am

    Re: Re: Re: Re: Question

    Maybe we could really start blaming the people who elect the government.

    I don't know how things happen in Kenya, but ACTA is alive everywhere, and the people with the power to stop it are the ones most affected by it, yet they do nothing.

     

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  7.  
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    nasch (profile), Dec 30th, 2009 @ 9:13am

    Re: Re: Re: Re: Re: Question

    What power do we have to stop ACTA? Our government won't even tell us what is in ACTA, let alone give us any voice in it.

     

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  8.  
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    nasch (profile), Dec 30th, 2009 @ 9:14am

    Opposite

    It's not about making sure that drugs and people are safe -- but quite the opposite. It's about limiting competition so that these pharma firms can jack up prices even higher.

    Those are not opposites. The opposite of "making sure that drugs and people are safe" is "making sure that drugs and people are not safe".

     

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  9.  
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    Mike Masnick (profile), Dec 30th, 2009 @ 9:49am

    Re: Question

    I'm curious as to how both these pharma execs and pharma lobbyists think. As in, when they're taking these actions, pushing for and drafting legislation, do they actually connect the dots and understand that they're literally killing people? Or do they rationalize, as some here will certainly do, about how these practices in fact save more people than they kill and blah blah blah.

    I think you're right on both accounts. Most of the lobbyists are mercenary... But the execs really do believe that the end result is more good than harm. It takes tremendous self-rationalization (and self-delusion at times). But the execs I've talked to at pharma companies all do seem to genuinely believe their position to be the proper one. Or they're very good actors.

     

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  10.  
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    Michial Thompson, Dec 30th, 2009 @ 12:27pm

    Why are the execs responsible for phulic anything

    Why should anyone or any company hold "public welfare" above "personal welfare"?

    That company owns the public NOTHING, and that company has something the public WANTS. Why shouldnt the company look out for themselves?

    In my business I treat my customers well and I look out for them because in turn they pay me and I can better look out for myself. My customers wouldn't look out for me, their loyalty is only there until someone else comes along and does more for less.

    Of course I am going to look out for myself, and protect what will make me more money. I owe noone anything and noone owes me anything.

     

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  11.  
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    Mike Masnick (profile), Dec 30th, 2009 @ 12:39pm

    Re: Why are the execs responsible for phulic anything

    Why should anyone or any company hold "public welfare" above "personal welfare"?

    Sure. As a company. But that's different then having laws passed that favor the company over the public welfare. Gov't's *are* supposed to be concerned about the public welfare.

    I never said that companies should be concerned about the public welfare -- but it should also be noted that pharma companies QUITE FREQUENTLY use the "public welfare" argument in their own defense. If they're going to use it, it's totally fair to call them on it, is it not?

     

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  12.  
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    Anonymous Coward, Dec 30th, 2009 @ 12:48pm

    "That company owns the public NOTHING, and that company has something the public WANTS. Why shouldnt the company look out for themselves?"

    um wait a minute
    copyrights and patents were originally granted BY THE PUBLIC to the creator so he could garner SOME COMPENSATION

    not hijack us and cause fatalities, not gouge and cause economic terrorism.

    NOT create big holding companies that do not pay the artists they themselves actually counterfeit ( see the 6 billion lawsuit in Canada on the CRIA - the canuck version of the riaa )

    SO people are dying because of these bastards....

     

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  13.  
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    KD, Jan 2nd, 2010 @ 1:41pm

    General vs. specific laws

    Interesting, this. When you discuss the subject of laws prohibiting cell phone use when driving, you say something like "the laws shouldn't prohibit specific actions but prohibit distracted driving, the general action". But on this subject, you argue that the law should not prohibit the general action (counterfeiting any item), but should focus on the specific action (counterfeiting drugs).

    My purpose here is not to argue for or against either position. (My first impulse is to agree with both, actually.) I just want to point out that one of your positions could be used in arguments against the other to claim that you don't follow consistent principles. Perhaps you could find a way to sharpen your statements on both of these positions so that your opponents could not so easily make use of one in arguments against the other.

     

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  14.  
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    Lee Weaver, Jan 5th, 2010 @ 11:40am

    Re:

    The Companied are not causing deaths. they didn't infect / injure the people tehy are just selling teir drug for what they can get for it , and protecting their investment in R&D to teh best of their ability.

    It may be heartless, but that's teh way of business. welcome to capatilism.

    If you don't like move to a socialist country, and hope they make counterfit the drugs.

    but if the pharma companies don't make the money, research will stop and new drugs to treat those willing to pay won't be available.

     

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