In June 2000, the Treatment Action Campaign (TAC) began importing generic HIV/AIDS drugs in defiance of patent laws to pressure the drug companies to reduce the cost of drugs as well as pressure the South African government to allow the importation of generic versions of patented drugs. The goal of the tactic was to increase access to affordable HIV/AIDS prescription drugs for all South Africans. Over four million people are infected with HIV in South Africa, and high prices for patented drugs have made treatment unattainable to most people.
An essential drug that is used to treat illnesses related to HIV is Fluconazole. Like many other anti-HIV/AIDS, Fluconazole is produced by multinational companies under patent and imported into South Africa at a very high price. Generic versions of the drug are significantly less expensive.
The South African government was unable to import Fluconazole from generic manufacturers because Pfizer’s patent of the drug prevents the government from doing so. Although the South African Patent Act gives the government the power to import or produce cheap copies of patented drugs, the Government did not attempt to use this power.
Before importing medications, TAC worked with the World Health Organization and Medecins Sans Frontieres to confirm that they were safe and effective. TAC arranged systems for purchasing and importing the drugs. For example, TAC organized a trip to Thailand, where a generic form of Fluconazole called Biozole was available to the public for less than $0.28 per tablet.
When the Biozole tablets reached the border, the South African Medicine Control Council confiscated them while members of that Council debated the issue of granting an exemption for generic Fluconazole. In November 2000, under pressure from TAC and its international and local supporters, the Council permitted the generic Fluconazole to be distributed to people by one of TAC’s partners. The exemption would be reviewed once the drugs Pfizer promised to deliver to patients in March 2000, actually reached people. By granting the exemption, the government exercised its discretionary power.
This act of civil disobedience demonstrated the urgency of the problem of access to HIV/AIDS medications by drawing attention to low cost alternatives that TAC took the initiative to make available. The activists were prepared to suffer the consequences of breaking the law in order to save lives, thereby applying sufficient pressure to impact national policy.
Even as it defied the South African government by importing generic drugs, TAC also supported the government in a case brought by a club of 39 pharmaceuticals, called Pharmaceutical Manufacturer’s Association (PMA). The case was brought against the South African government over its Medicines Act, which the PMA alleged violated patent laws. The Medicines Act included provisions that allowed the government to import patented drugs from other countries if they were available at a lower price than in South Africa. Under the Act, pharmacists would also be required, when presented with a prescription, to prescribe cheaper generic drugs if they were available. The PMA ultimately withdrew their case.
Although they circumvented South African law and international patent agreements in order to intervene in this crisis, they provided support to the government’s case against the pharmaceutical industry while demanding the government take action to exempt HIV/AIDS generic medications. As long as those changes were not being made, TAC continued to defy the law.
South Africa was, and continues to be, living under the specter of a grave human rights crisis: millions of people with HIV/AIDS without access to effective medicine. However, in August 2003, under pressure from TAC, the South African government agreed to make anti-retroviral drugs available to all South Africans. In the new plan unveiled in November 2003, the government is committed to providing free anti-retroviral drugs to anyone who needs them.
Challenging the government to make defiance of pharmaceutical patent laws legal
