Come in Hot with What We’ve Got: Enforce the Laws

New Delhi. Hundreds of Indian activists protested in New Delhi on Monday against a challenge to the country's patent law by Swiss pharmaceutical giant Novartis. India produces affordable medicines that are vital to many people living in developing countries. Over half the medicines currently used for AIDS treatment in developing countries come from India and such medicines are used to treat over 80% of the 80,000 AIDS patients in MSF projects. If Novartis is successful in its challenge against the Indian government and its patent law, more medicines are likely to be patented in India, making it very difficult for generic producers to make affordable versions of them. This could affect millions of people around the world who depend on medicines produced in India.

Little Rock    Elizabeth Warren, Senator from Massachusetts, and probably the most popular candidate who did not run for president – in fact can you just imagine the even greater amount of excitement and drama we would see on the Democratic side of the ledger if it were Warren versus Clinton, given how well Sanders has done? – argued in a recent report that the President could do more than issue executive orders and new agency rules, he could step up enforcement of existing laws. She’s right!

Given the dysfunctional Congressional stalemate, we need to put aside some of our pipe dreams about new laws, and see if we can squeeze the lemons we have into lemonade. Warren’s argument is that the President has too often appointed, or left in the chair, weak administrators who have not used the full power and authority they have as regulators to police financial misdealing, environmental outrages, and general corporate arrogance by handing out cheap tickets and hand slaps for flaunting one law after another. She wants the whip cracked and heads to roll. Hear, hear!

Of course it’s not quite as easy as that, which she also undoubtedly realizes without bothering to dwell on it. In many cases the ground troops required to inspect, enforce, and administer accountability have been severely cut back given reductions in inspectors, auditors, and the boots on the ground in America that do the grinding, boring grunt work of enforcing the law. Without being able to deliver the facts on the ground lawyers and courts are invariably going to cut deals with weaker cases and, as Warren argues implicitly, chicken out when trying to impound the big dogs because of their armies of lawyers, spin masters, and unlimited resources.

Maybe some would say, Senator Warren is just singing her same old song, but when she talks about some new targets like the sanctioned healthcare drug pushers, it’s worth remembering this is not just about Wall Street a thousand miles away from most Americans, it’s personal and as near as the neighborhood clinic. She comes in hot on Novartis saying,

“When Novartis, a major drug company that was already effectively on federal probation for misconduct, paid kickbacks to pharmacies to push certain drugs, it cost taxpayers hundreds of millions of dollars and undermined patient health. Under the law, the government can boot companies that defraud Medicare and Medicaid out of those programs, but when Novartis got caught, it just paid a penalty — one so laughably small that its C.E.O. said afterward that it “remains to be seen” whether his company would actually consider changing its behavior.”

A judge pulls someone back in front of the bench if they agree to plead but are still maintaining their innocence, telling the accused, you can’t have it both ways, either say you’re sorry, shut up, and carry the weight or go to trial and take your chances with the verdict one way or another. If the government is going to enforce the law, how can they pretend the job was done if they accept a fine and hear the guilty thinking about whether or not they’ll change their behavior?

Warren is right. Big corporations are out of control. We’re living in a time of impunity. Government needs to do its job. We have to work with what we’ve got and hold them accountable. We start doing that and we might end up with something better as well.

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India’s Supreme Court Gives Temporary Victory for Key Generic Drugs

New Orleans   Thanks to a decision by the Supreme Court in India many desperately ill leukemia patients in Africa and Asia will live, though of course many more will die.  The court ruled that that Indian pharmaceutical factories can continue making a generic version of the drug Gleevec made by Novartis.  In the developed world Novartis charges $75000 per year to patients using this highly effective regimen.  The Indian generic version costs about $2500 a year, far out of the reach of most Indians of course but affordable by many who would be die on the altar of big pharma profiteering.

Of course Novartis and other companies like it justify the prices as being necessary to pay for their research and expenses, but even to the degree some of that might be true, such an argument ignores the fundamentals of the marketplace.  Novartis can charge any price it wants as long as there is no competition for its drug and its utility, and it mostly does.  Except where the tragically ill have access to cheaper generics, 80% of which are provided by companies in India and China.  Other countries like Argentina, Brazil, and the Philippines are also challenging patents in cases worth watching.

Make no mistake though, this is a temporary victory.  Big pharma pushed India to pass a law with more patent protection in 1995.  The Indian Supreme Court ruled that Novartis had developed this drug in 1993 and though the company retooled its efforts on the drug, the patent was not fundamentally different for the adjustments made after 1995.  Other generics coming on the market since 1995 will undoubtedly have a tougher time withstanding the challenge.

These issues are not trivial.  They mean life and death to millions.  Millions, if you hear and read me clearly!

The hope is far from home unless you live in India, Argentina, or the Philippines which have passed similar restrictions on patent playing by big pharma.  Brazil and Thailand have taken the even more important step of issuing compulsory licenses for some drugs, like those effective in the AIDS epidemic, because of multilateral trade agreements that allow such actions because of overriding concerns for public health and welfare.

Public health and welfare has to trump predatory profiteering.  Such laws must expand and multiply so that companies are certainly allowed to survive, but more importantly, people are allowed to live.

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