Kenya's High Court Rules Anti-Counterfeiting Law Is Unconstitutional Because It Threatens Access To Generic Drugs

from the ACTA,-TPP-take-note dept

Back in 2009, Techdirt wrote about an interesting challenge to a then-new law against counterfeits in Kenya, on the grounds that it might be used to stop perfectly legal generic variants of drugs being imported into the country. That matters, because around 90% of drugs used in Kenya are generics, which means that blocking them would have serious implications for healthcare in that country.

Michael Geist points out that two and half years later, the court has finally delivered its verdict, and it’s a great result:

Kenya’s High court ruled on Friday that lawmakers must review legislation that could threaten the import of generic drugs, allowing Kenyans to continue accessing affordable medicine.

The judge specifically noted the problem mentioned above:

“The act is vague and could undermine access to affordable generic medicines since the act had failed to clearly distinguish between counterfeit and generic medicines,” Judge Mumbi Ngugi said in her ruling.

As a result, Kenyan lawmakers will have to amend the bill to distinguish clearly between counterfeit and generic drugs.

That’s not only a huge win for the millions of Kenyans who depend upon generics for their treatment, but it also highlights a key problem for ACTA and TPP, which both seek to grant broad powers to border officials to seize medicines without distinguishing sufficiently between counterfeits and generics.

Here’s what the international humanitarian aid organization Médecins Sans Frontières (MSF) has to say about ACTA and generics (pdf):

While it is claimed that ACTA will protect against falsified medicines by allowing countries and companies to take strong measures in trademark disputes, this may in fact impede access to genuine generic medicines.

Meanwhile, MSF comments on TPP as follows (pdf):

the U.S. is requesting that TPP countries grant customs officials the ex officio right to detain shipments of medicines at the border, even in transit, if the goods are suspected of being counterfeits or if they are considered “confusingly similar” to trademarked goods.

Other countries need to follow Kenya’s lead and confirm that access to vital generic medicines is a right that cannot be over-ridden by purely commercial considerations. Among other things, that means throwing out ACTA, and re-drafting TPP’s dangerously vague sections dealing with counterfeit drugs.

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Comments on “Kenya's High Court Rules Anti-Counterfeiting Law Is Unconstitutional Because It Threatens Access To Generic Drugs”

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Anonymous Coward says:

All this nonsense and all because of greed.

This is exactly why I am trying very, very hard to learn how to make medicine, once that knowledge is mastered I will sleep better at night knowing that no matter what happens I always will be able to do it myself if the need arises.

All this IP BS has cemented in me the need to learn more and start working towards something that will secure my future no matter what happens, I can’t any longer in good conscience allow my needs to be secured by third parties that completely ignore my needs and aspirations, I can’t hand over my future to people like that, if I do I probably deserve to be ripped off.

Good Kenya that has some decent people still in power positions that can do something, but that is not enough, to truly secure freedom and democracy I believe we must secure knowledge which is a better safety net than any government program could ever be, knowledge is impervious to lobbying, knowledge is impervious to corruption.

Anonymous Coward says:

lol, no one was blocking access to anything, they want it worded so it couldn’t be used to block generics,

and claiming what acta will in fact block is a joke, it hasn’t done anything, it hasn’t been passed

huge win, lol, no one was being denied drugs, way to make up a story to frame it your way, keep pulling headlines like that out of your ass, you will be like mike one day….

Anonymous Coward says:

Unless one has an actual copy of the law at issue, as well as the court’s opinion, it does seem a bit premature to declare “We won one!” My question is “What did you actually ‘win’, if anything?”

BTW, if generics are important and useful in helping to maintain people in good health, they why the fuss about medicines under patent? After all the latter do have to compete in the market with generics, and it is price competition that keeps costs to consumers in check.

Anonymous Coward says:

Drug Explanation

There are three kinds of drugs:

1. Genuine drugs. Drugs made by the original manufacturer and using the trademarked name. The dosage stated on the packet is correct. Those drugs are generally expensive while the patent runs.

2. Generic drugs. Drugs made by reputable manufacturers other than the original manufacturer and using the generic name. A different trademarked name might be used as well. The pharmacologically active compounds in both the genuine and the generic drugs are the same and the dosage is correctly stated. These drugs are generally out of patent and are cheap, but are just as effective as the genuine drugs.

3. Fake drugs. Drugs made by criminals to look like genuine or generic drugs, but containing much less or zero of the pharmacologically active compounds. These drugs kill patients because patients cannot control their dosage correctly. The dosage stated on the packet is a lie. They are got into the supply chain by corrupt practices.

Original manufacturers hate generics and fakes. But they know that it is actually only the fakes which are dangerous to patients. They dishonestly attempt to get generics and fakes treated the same.

Anonymous Coward says:

The way to freedom and better healthcare is knowledge, the knowledge of how to manufacture those needed drugs should be at the hands of anyone who needs it.

The way to any freedom at all is the freedom knowledge grants you. If you place your needs in the hands of others you become their servants, if you work for your own needs you become a free man.

This is what patents try to stop, it tries to stop free man from being able to be work to better themselves. It was true a three hundred years ago and it is true now.

People who want a better and secure future must trust knowledge to make that future a reality, nothing any other person can offer you is better than you yourself knowing how to help yourself.

Learn to make the medicine you need, learn to grow your own food so you are not so dependent on others, learn to build the things you need and you have found the best safety net there is.

Those companies must understand that they are not the only ones who can do something, if need it be people can just bypass them and ignore the law to secure their own health and well being.

We need others to survive but we don’t need parasitic companies that would sell us all out for a percentage, and we can’t count on others to always do the right thing, they are not the ones who suffer and so they don’t care.

Anonymous Coward says:


Will you laugh when people start producing their own medicine at home and start bypassing the law?

The most powerful safety net there is, is the power of knowledge, if you own it, rarely somebody else can tell you what to do.

See copyright for an example of it, the knowledge to bypass copyright is widely available, even children can do it and that is why that part of IP law is dead, now it is time to focus on the other part the part that causes real harm.

I want to see which government will incarcerate people for producing their own medicine because they couldn’t afford to buy it from the monopolistic company.

Anonymous Coward says:

Kenyan’s and just about everybody else should in my opinion really start thinking in terms of home production of drugs.

Letting others do it for ya is to allow them to dictate the terms, you are a slave, if you want freedom it is time to start working to help yourself and get rid of the power that those people command and that only is going to happen only if people can do it for themselves and not be dependent on others.

Anonymous Coward says:

Those who can’t do for themselves are obliged to fallow what those who can, tell them to do.

The interwebz should do to the drug companies what we are doing to the entertainment industry and that is copying and sharing everything.

I rather die trying my own home made pirated medicine than die begging others to give me those drugs that I need.

I think I will start with the simple ones first and move to others.
How to make Aspirin

Drug piracy here I come. Wooohooo!

Niall (profile) says:


And of course, there is no way ACTA or TPP will be used to block access to ‘anything that happens to look like an expensive patented brand’. Not at all.

If there is no actual danger of this happening, then you should have absolutely no problem with the ‘tiny’ risk being removed by clearer language. You also shouldn’t have a problem with a law being clearer… should you?

Anonymous Coward says:

Response to: Anonymous Coward on Apr 24th, 2012 @ 9:17pm

Wrong, wrong, wrong. Many drugs exhibit similar pharmacological effects, with some being efficacious substitutes for the other, and this includes those under patents and those that are generics.

While perhaps there may be some instances where only a drug that is patented will work, I am personally not aware of any such circumstance.

Anonymous Coward says:

Response to: Anonymous Coward on Apr 24th, 2012 @ 9:17pm

While perhaps there may be some instances where only a drug that is patented will work, I am personally not aware of any such circumstance.

This right here proves that you know nothing of medicine or how it interacts with the human body. All people are different, and their own personal chemistry is unique to them. A drug that is efficacious for one might prove useless to another, and deadly to yet someone else. That is why it is so important to have so many different drugs that can all accomplish the same goal. You’ll also note that even if they do come to the same means, the pathway might be different. You have ACE inhibitors and vasodilators. Calcium channel and alpha-2 agonists. Yes, I have hypertension, directly related to other medical issues. All of my antihypertension drugs are generic.

Anonymous Coward says:

Response to: Anonymous Coward on Apr 24th, 2012 @ 9:17pm

About hypertension most of those drugs are diuretics and from my own experience measuring my blood pressure twice a day(when I wake up and when I go to sleep), I can tell every time I take coffee(the one without caffeine in it) because my pressure goes through the roof.

Anonymous Coward says:

Response to: Anonymous Coward on Apr 24th, 2012 @ 9:17pm

My “bad” since my experience is limited to having represented at least three of the major pharmaceutical companies residing in the US.

Of course the efficacy of drugs can vary among individuals. My sole point is that merely because a drug has been patented does not automatically translate into obscene pricing for that drug precisely because it has to compete in the marketplace. Might there be an exception? Perhaps, but as yet I have not seen one.

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