EU and India risk trade war on fake drugs

A trade war beckons between the EU and India, with the Asian state reportedly about to complain to the World Trade Organization. The feud has been provoked by mobile phones and medicines - perhaps not as sexy as the "bra war" with China a few years ago, but rather more serious.

The EU is accused of stopping essential medicine from reaching the world's poor,

yet it must also protect the same people from the growing and deadly menace of fake drugs.

The dispute centres on seizures of patent-breaking Indian medicines in Dutch and German ports; products that were on their way to low or middle income countries. Indian industry lobbyists and global health activists have been up in arms, accusing authorities of depriving the poor of cheap "generic" medicines (copies of patented drugs).

The Federation of Indian Chambers of Commerce and Industry said this week that Indian pharmaceutical companies had been "severely hit" by seizures in EU ports.

It is worth noting that last year over 93 per cent of pharmaceutical seizures were not for patent infringement, but instead for trademark infringement. In other words, like the Nokia phones, they were fake. And fake drugs cause vast harm to the world's poor, particularly in Africa.

While levels of counterfeits in Europe are estimated at less than 1 percent, studies in Africa show extraordinarily high levels of counterfeit and substandard medicines. A study last year in six African cities showed 35 percent of drugs were substandard, while other studies have revealed that over half of all medicines in some markets are fake.

Deadly medicine

These fakes have devastating consequences. First, they fail to cure chronic illnesses. A study I co-authored estimates that 700,000 annual deaths from malaria and tuberculosis are due to fake drugs.

Second, fakes provoke deadly new strands of drug-resistant disease, endangering millions of people worldwide.

Third, fake drugs can result in more instant tragedy. Recently over 80 Nigerian children died after consuming a cough mixture that falsely contained anti-freeze (diethylene glycol) instead of syrup (glycerine).

Most counterfeit drugs come from India, a fact supported by seizures at EU borders -in 2008 over half of all medicines seized were from India.

One story in the Indian press reports that 92.5 percent of drugs at a market in New Delhi were found to be fake. The article explains how the drugs were sold to "exporters who sell them to unsuspecting health administrators in Sub-Saharan Africa, who receive some of the millions in aid money that is trying to fight HIV/AIDS, malaria or tuberculosis."

The EU's figures reveal a huge overall increase in medicine seizures, up by 57 percent on the previous year. If most were for no more than patent-infringements it would be quite a scandal, yet the real scandal is the massive number of fake medicines being targeted at the world's most vulnerable populations.

Nokia ruling impacts African patients

Recently, a British court has ruled that Nokia has no right to expect fake versions of its phones to be seized while passing through ports, interpreting the EU's laws quite differently.

This may not seem too bad for fake phones, but what if fake drugs were allowed to pass through customs?

As explained by Isabel Davies of law firm CMS Cameron McKenna: "If the seized products are jeans or phones, it may not be life-threatening. But for customs bodies to have to release counterfeit medicines ...then this is detrimental to society and the public."

The EU's regulations and interpretation thereof seem increasingly legally complex, but this issue must be resolved. Allowing the flow of patent-breaking generics may be sensible, but we must not forget that most seizures are for potentially deadly counterfeit medicines. To treat them as legitimate goods would be criminal.

Julian Harris is a research fellow at the International Policy Network, a development think-tank, and co-author of "Keeping it Real: combating the spread of fake drugs in poor countries".