The Anti-Counterfeiting Trade Agreement (ACTA) being drawn up this week could subject generics makers to criminal prosecutions and seizures of their products “on orders from big drug companies,” a leading NGO warns.

The 12 nations plus the European Union (EU) involved in this week’s negotiations in Morocco have refused to publish the draft agreement, which increases suspicions that the deal is being drafted “on behalf of narrow corporate interests,” says Rohit Malpani, policy adviser at the nongovernmental organisation (NGO) Oxfam.

“Under these circumstances, we can only assume that the final text could do great harm in developing countries and undermine the balance between the protection of intellectual property and the need to provide affordable medicines for poor people,” he adds.

The EU wants the ACTA to require all countries negotiating the deal to increase seizures and prosecute companies who produce generic drugs legally for sale elsewhere, including in countries which not even engaged in ACTA negotiations. These rules could encourage big drugmakers to file frivolous patents to extend their monopolies and high prices, while at the same time discouraging parallel imports, says Oxfam.

A further concern is the exclusion from the negotiations of Brazil, which would be likely to support the wider availability of generics and discourage any extension of intellectual property (IP) rights that would exceed minimum obligations under current World Trade Organization (WTO) rules, the group adds. Of the 12 states plus the EU taking part in the talks, only Mexico and Morocco are developing countries.

Since November 2008, EU customs have seized at least 18 shipments of legal generics – including HIV/AIDS and heart disease treatments - from India and China to developing countries. The EU is refusing to re-examine the regulation under which these seizures have been made and could now pushing for it to be extended globally through free trade agreements and ACTA, says Oxfam.

Last month, the Trans Atlantic Consumer Dialogue (TACD), a coalition of consumer groups, condemned the secrecy of the ACTA negotiations and warned that the proposals under consideration would, in important areas, be significant departures from the current WTO agreements.

TACD members include Health Action International (HAI), whose representative, Sophie Bloemen, said: “all those with an interest in public health need to be very worried about the IP enforcement agenda. Some of the enforcement initiatives developed under the guise of ‘anti-counterfeiting’ moves will, in reality, hamper the legitimate trade in generics and as a result pose a serious threat to access to essential medicines in developing countries.”

And Ed Mierzwinski, consumer programme director at the US Public Interest Research Group (PIRG), added: “the public should be outraged that powerful rightsholders, including drug companies…have asked governments to use secretive trade and treaty processes to eliminate access to medicines and knowledge and possibly criminalize normal behavior.”

Meantime, more African countries could soon be following the example of Kenya’s anti-counterfeiting law, passed last December, which allows generic versions of drugs patented anywhere in the world to be classed as counterfeit if the patent holder raises an objection.

A draft policy, which has been funded by the western government and industry-backed group Investment Climate Facility for Africa and defines generic drugs on which patents are held anywhere in the world as “counterfeits,” could be adopted soon in number of African nations including Burundi, Rwanda and Tanzania, according to local reports.