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.