Why Canada's access to medicines regime can never succeed.

• Author: Attaran, Amir

Early in 2004, the telephone rang in my Boston apartment. On the phone was a pleasant sounding man from the Prime Minister's Office. He had heard about a Canadian at Harvard who was researching patent laws and access to medicines in developing countries, and was phoning about a bill, called C-9, that the government had just introduced in Parliament. After pleasantries, our conversation went something like this:

"Of course I know about the Bill. I just returned from public health meetings in Europe and Africa and all my colleagues were thrilled. Congratulations: you've made a splash."

"Nice to hear, because closer to home we're being pummelled."

"Sorry to hear that. What's the problem?"

"Everyone hates the Bill. The activists and doctors say it doesn't go far enough and accuse us of selling out AIDS patients; the pharmaceutical industry says it goes too far and will ruin medical progress. The two sides hate each other and there's no middle ground."

"Welcome to the drug patents debate. When you hear criticism in stereo, consider it praise for being well balanced."

"Very funny. We thought this Bill would be a good news story, but it's become toxic. The expectations are as big as the AIDS pandemic itself. I'm phoning for a little help."

"I'd be happy to. But you know, my research on drug patents suggests the Bill's premise is off."

"Off? Why do you say that?"

"It's a long story, but in most poor countries, very few medicines are patented. Also, most of those drugs that are patented are already sold at a steep humanitarian discount, as if there were no patent. (2) By targeting the patent system, I'm afraid Bill C-9 will only make a marginal difference to public health."

"Yeah, we know that. The patents aren't the real problem. But we've got to do something for Africa. You see, the Prime Minister wants it..."

Hearing that, I soon found a polite excuse to end the phone call. Bill C-9 passed Parliament that spring--without my help. Somewhere on the way to becoming law, it acquired the tellingly megalomaniacal title of the Jean Chretien Pledge to Africa Act.

Six years later, the law has been rebranded Canada's Access to Medicines Regime (CAMR). There is as much dissatisfaction with it as ever. As I write this in January 2010, two private members bills are making their way through the House of Commons and the Senate (Bills C-393 and S-232, respectively), to fix what the laws' advocates say are fundamental weaknesses. Charities such as Medecins Sans Frontieres, Oxfam and the Canadian HIV/AIDS Legal Network have all advocated strenuously in support of CAMR and these Bills.

Is this effort well spent? To be sure, CAMR was created not as a genuine public health effort, but as a Prime Minister's vanity project. By passing it, Canada sought bragging rights as the world's first country to legislate the compulsory licensing system envisaged by the World Trade Organization in decisions from 2001 to 2003 (although Norway beat us). Had it worked, CAMR would make it possible for poor countries, in Africa and elsewhere, to buy generic versions of patented drugs manufactured in Canada, at world-beating prices.

However, it has not worked out that way, only once has a poor country come knocking on Canada's door for medicines: in 2008, when Rwanda reached a deal to buy AIDS medicines from a leading Canadian generics company, Apotex. (3)

But since that deal, the law has stood idle and has started accumulating epitaphs. CAMR's advocates such as the Canadian HIV/AIDS Legal Network say that CAMR is too burdensome to use. (4) Apotex agrees, and barely two years after striking the deal with Rwanda referred to CAMR as "not workable." (5)

These are strange protests. It is oddly contradictory for Apotex and the law's advocates to fault CAMR as unworkable, when in the very recent past they have made it work. A less rhetorical, more factual, analysis is needed.

To begin with, the Apotex-Rwanda deal is a hopelessly misleading bellwether by which to judge CAMR. While Apotex seldom missed an opportunity to portray itself as a Canadian company thwarted by CAMR from helping multitudes of poor, dying Africans, a less hagiographic examination shows that the weak link was the company's own lack of competitiveness and not the law.

Testifying before Parliament in April 2007, Apotex's president, Jack Kay, described CAMR as a real problem, and reeled off all the efforts that his company and Medecins Sans Frontieres (MSF) were together making to pitch Canadian medicines to needy countries at competitive prices. (6) The highlight of Mr. Kay's testimony was an offer that Apotex would manufacture and sell a useful, made-in-Canada AIDS treatment without profit, at its cost of thirty-nine cents (U.S.) a tablet a price he claimed was "competitive with products that would come out of India." (7)

Mr. Kay was mistaken. Over three years prior, MSF had already found an Indian generics company, Hetero, that undercut Apotex's price of thirty-nine cents a tablet. (8) By the time Mr. Kay pledged that Apotex would be "competitive" with India, at least four Indian companies had already bettered his stated price. (9)

Apotex's uneconomical offer left CAMR's advocates in an embarrassing bind. If they were neutral, the advocates would have conceded that impoverished countries could achieve better value by buying cheaper medicines elsewhere, but that would have meant admitting an error in touting CAMR's "buy Canadian" scheme, and some choked on the words. The Canadian HIV/AIDS Legal Network wanly argued for the use of CAMR, even if poor countries would have to pay "a few cents more per tablet than the prices set by Indian generic drug manufacturers." (10)

Meanwhile, at Apotex, Mr. Kay's parliamentary appearance painted...