[cross-posted from Hill Queeries, Xtra’s Ottawa blog by Dale Smith]
The Senate Committee on Banking, Trade and Commerce met to consider
Bill S-232 for the first time today. The bill would amend Canada’s
Access to Medicines Regime (CAMR), a piece of legislation which
theoretically enables generic drug manufacturers to provide cheap drugs
for Tuberculosis, malaria and HIV/AIDS in developing nations that
cannot access these drugs in any other way. Because it deals with
changes to the Patent Act, it falls under this committee and not one
relating to health or foreign affairs.
The Senate Private Members’ Bill was first introduced seven months ago
by Liberal Senator Yoine Goldstein, who has since reached the mandatory
age of retirement, but is now being shepherded through by Liberal
Senator Sharon Carstairs.
Goldstein and Carstairs first testified before the committee to defend
the necessity of the bill – that in the five years since CAMR
legislation was first adopted in Canada – and similar legislation in
other countries – only ours has been accessed once by Apotex for a
single shipment of AIDS meds to Rwanada. Apotex later declared the
process to burdensome, and that it would no longer send shipments.
Clearly something needs to be done.
The changes would also allow for NGOs like Doctors Without Borders or
Save the Children Canada to purchase the drugs directly, rather than
going through a given country’s procurement process, thus speeding
process – especially in those nations who do not have a government
capable of such bureaucratic processes.
The second group of witnesses were from four government departments who
are affected by CAMR, but their testimony poured cold water onto the
arguments for the bill. Industry Canada led the group, and suggested in
large part that despite the original legislation operating under
waivers for World Trade Organisation rules, and that this bill would
not alter those portions of the legislation, they nevertheless argued
that these changes could bring about WTO challenges. Foreign Affairs’
witness said that they had consulted with their legal department about
these potential challenges, but could not provide a formal written
legal opinion on the matter – something which did not impress Liberal
Senator Pierrette Ringuette during her line of questioning.
The Industry Canada witness also raised the concerns about
anti-diversion measures – that is, to ensure that these drugs don’t
wind up in countries where they are not intended, or into markets where
they would compete with patented drugs. Goldstein had already mentioned
in his testimony that the anti-diversion mechanisms already in place –
that these drugs are specifically formulated for the virus strains in
sub-Saharan Africa, that they are closely supervised by WTO officials
and that they are specially shaped, coloured and stamped for use only
in the designated countries, and that the brand-name pharmaceutical
companies employ these same methods for their own products in similar
markets. An official from CIDA also suggested that perhaps more money
was being spent on prevention measures in this countries than
treatment, which could be why CAMR has only been accessed the once –
not that most Senators appeared to believe this.
Liberal Senator Paul Massicotte also raised the very interesting
question of whether or not some countries might be subject to blackmail
by pharmaceutical giants, which was why they may not be accessing CAMR
currently. No government official would comment on that speculation.
After the hearing, I spoke to Senator Ringuette and former Senator Goldstein about the testimony.
Senator Pierrette Ringuette
Q: What were your concerns based on the testimony from the government officials?
A: The government “messengers?” I found I was very disappointed.
This bill has been introduced for seven months, and they come in front
of a Senate committee, very ill-prepared, making assumptions, not being
able to back them with facts, and to me that’s very discouraging
because I think that the Canadian people are entitled to better
services from our officials.
Former Senator Yoine Goldstein
Q: What was your reaction to the government officials’ testimony?
A: Industry [Canada] perceives itself as having a particular
role to play, and it plays it well. It has a concern, conservative
small-c, to make sure, that whatever legislation is adopted is WTO and
TRIPS compliant. There are a number of significant legal opinions that
say that this proposed legislation is compliant, and I drafted it with
those opinions in mind. Let me tell you what a big problem would be and
isn’t – the big problem, which would make this kind of legislation not
compliant would be if there were a blanket licence. That is, a general
license forever. I didn’t draft it that way. The way it’s drafted, you
have to go before the Commissioner of Patents to get a compulsory
licence, and you have to fill certain requirements in terms of
information and ongoing information to maintain that licence. What
Industry just said a few moments ago is frankly incorrect, and if you
come to the rest of the hearings, you’ll find out why it’s incorrect.
To suggest that the Apotex application was dealt with in three months
was gross nonsense. Absolute nonsense. And Apotex will be here to tell