Suspect Medicines: Innovate or Ban Generics?

Written by Andrew Rens on February 11th, 2013

Medicine supply chains can leak: safe genuine medicines can leak out and fake medicines can leak in. This is obviously a threat to public health which makes it all the more unfortunate that a genuine problem has been used in an attempt to prevent competition from generic medicines in some countries.

The linchpin of this attempt was the use of the word “counterfeit” to describe spurious medicines. The therianthropic term “counterfeit” entered the discussion about spurious medicines from an international intellectual property enforcement discourse where it was used in ever changing ways in Intellectual Property documents such as ACTA, to refer to a wide variety of activities that include trade mark infringement.*

For example the World Health Organisation International Medical Products Anti-Counterfeiting Task Force (WHO IMPACT) claimed that counterfeit medicines “may include products with the correct ingredients or with the wrong ingredients, without active ingredients, with insufficient or too much active ingredient, or with fake packaging.” **

According to this description of counterfeit medicines a medicine might be counterfeit even if it has the right ingredients in the right quantities but has “fake” packaging”. The definition thus includes generic medicines when there is a dispute about the trademark relating to the medicine. German customs officials, apparently unable to distinguish between the International Non Proprietary Name and a trademark have intercepted medicines in transit to a least developed country and defended their actions by claiming a concern about counterfeit medicines.

Kenya, relying on international experts passed anti counterpointing legislation that was subsequent struck down by the High Court because it effectively label generic medicines as counterfeit and thus threatened the right to health.

If those are the wrong approaches to spurious medicines there are far more innovative approaches such as Sproxil. A consumer can scratch a ticket and then text a unique number to Sproxil which would then confirm the authenticity of the product. This system works in developing countries with low Internet penetration but where cell phones are widespread.

* Unravelling the full etymology of ‘counterfeit’ will have to wait for another day.

** WHO IMPACT has subsequently begun to use the term SFFC (spurious/falsely-labelled/falsified/counterfeit) medicines.

 

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