India under pressure from Europe to sign a trade deal that will harm access to medicines

The EU is exerting pressure on India to sign off the EU-India Free Trade Agreement (FTA) by April. Various campaigns and demands from the Indian government persuaded the EU to remove from the negotiating text certain provisions that would damage access to medicines, for example, attempts to extend the duration of patents. However, there still remain Intellectual Property (IP) enforcement and Investment provisions that will harm people’s access to medicines not only in India but also across the developing world, as India is the main producer of generics and of Active Ingredients (AI). Rushing the FTA will not help the removal of these harmful provisions.

 

The IP enforcement provisions would open the door to abusive practices from multinational corporations that could potentially block the export of generic medicines from India by delaying, seizing, detaining and destroying them when in transit through EU countries (border measures) - and these medicines are a lifeline for millions of people in Africa. Companies could also draw in third parties, including suppliers of the active ingredients used in generic medicines and providers of treatment like MSF, potentially entangling them in court cases simply for buying or distributing generic medicines. This would entail severe economic losses. The measures also seek to curb the judiciary in India as courts seek to balance intellectual property rights with peoples’ constitutional right to health.

 

Moreover, investment mechanisms would allow multinational companies to sue the Indian government for billions of dollars in private arbitration panels if national laws, policies, court decisions or the patent office reject, override or revoke a patent in order to increase access to medicines. The same would apply to any action perceived to interfere with the investments and potential profits, even if the government’s actions are in accordance with its constitution and national laws.

 

Faced with these dangers, an Indian Parliamentary Standing Committee has decided to examine the impact of free trade agreements on access to medicines. But there is the danger that Indian negotiators yield to EU pressure and choose to conclude the talks hastily and sign the agreement before the report is finished. Once signed, the agreement will become legally binding setting a precedent for intellectual property enforcement and investment standards in all future trade agreements between India and developed countries (US, EFTA). It also sets a negative precedent for other developing country governments (e.g.Thailand) who are being pressurised to accept equally harmful IP provisions by the EU. As India is already being obliged under international trade rules (WTO) to grant patents on newer medicines, production and access to affordable medicines is already becoming harder. 

 

Yet in 2010 – 2011, the European Commission agreed to withdraw two harmful IP provisions from the text of the negotiations. The European Commissioner for Trade, De Gucht in May 2010 asserted that the EC negotiators would no longer pursue the issue of supplementary protection, then in 2011 he pledged to do away with the harmful data exclusivity clause in the EU/India Free Trade Agreement text.  BUT the European Commission is now shrewdly pushing the harmful IP enforcement and investment provisions in the FTA negotiations with India. “The EU cannot claim it supports access to medicines and is concerned about the lives of patients in developing countries, and at the same breath be pushing harsh provisions around intellectual property enforcement on India,” said Loon Gangte of DNP+. “What the EU wants in this trade deal will pose a huge threat to future access to affordable generic medicines, including the drugs I need for HIV.  We’re here to tell the EU that they cannot push this deal through without a fight, and we’re here to tell India not to cave in to the pressure.”

 

We need to write letters, appeals, and petitions to the Indian Embassies in our countries asking the decision makers not to give in to EU pressure and to push hard for the removal of the IP enforcement measures and investment provisions in the EU-India Free Trade Agreement.