European Union initiatives to combat the trade in counterfeit drugs are being misused, at the behest of “corporate criminals” in the pharmaceutical industry, to seize life-saving generic drugs which are legally in transit through Europe on their way to patients in poor countries, it is claimed.

Following four recent seizures of Indian-made generics bound for Brazil, Colombia and Peru by customs officials while they were in passing through the Netherlands, the heads of the World Health Organisation (WHO) and World Trade Organization (WTO) have been asked to examine, as a matter of urgency, the extent of the risk posed to the delivery of generic drugs to developing countries as a result of the manner in which customs regulations and anti-counterfeiting measures are currently being applied.

The request comes in letters sent to WHO director-general Margaret Chan and WTO director-general Pascal Lamy by 16 nongovernmental organisations (NGOs), who warn the officials that “these rules, and many other rules being proposed in a plethora of new trade agreements, do not protect legitimate sellers and buyers of generic medicines when those goods move in global trade.”

The signatories also ask: “should countries be free to aggressively enforce patent and other intellectual property claims against goods in transit, or should goods in transit be protected when they are clearly intended to markets where their use is legitimate?”

One of the signatories is Oxfam International, whose head of EU advocacy, Elise Ford, points to “what appears to be confusion between counterfeit medicines that kill people and generic medicines that save lives,” and urges the EU to immediately review and modify its anti-counterfeiting legislation if it wrongfully allows member states to seize legal generic medicines that are simply transiting through Europe. “It is nonsensical that a regulation intended to save lives could instead be jeopardizing the ability of doctors and nurses in developing countries to protect them,” she adds.

The international aid agency Medecins Sans Frontiers (MSF) pointed out recently that it regularly transports and stores medicines in Europe on a temporary basis, and the current uncertainty cannot be allowed to continue, the NGOs stress.

A stronger attack has come from Brook Baker of the HIV/AIDS and human rights advocacy group Health GAP (Global Access Project), who said the “unwarranted” Dutch seizure was instigated by DuPont and Merck which had “falsely claimed” that the medicines posed a threat to their patent and marketing rights in the Netherlands. “So far, far too little attention has been directed at these corporate criminals who are acting with impunity to thwart lawful generic competition even in countries of export and import - India and Latin America - where their patents and marketing rights have no effect,” said Mr Baker.

This “embargo of medicines, at the frivolous behest of drug company bullies,” is not only a direct violation of the Doha Declaration on the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement and Public Health that prioritizes access to medicines for all, it is also “an unconscionable violation of the human right of access to essential medicines enshrined in multiple international treaties,” he added.

- Early this month, India and Brazil protested to the WTO’s General Council over the seizure and
confiscation by Dutch authorities of $500,000-worth of bulk losartan (Merck & Co’s antihypertension drug Cozaar) manufactured by Indian firm Dr Reddy’s, as it passed through Rotterdam on its way to Brazil.
And late last year, India’s Pharmaceuticals Export Promotion Council (Pharmexcil) reported that consignments from a number of small and medium-sized Indian bulk drugmakers had recently been seized at ports in Germany, France, the UK and the Netherlands, all on claims of intellectual property rights violations.