Kenya's High Court Rules Anti-Counterfeiting Law Is Unconstitutional Because It Threatens Access To Generic Drugs

from the ACTA,-TPP-take-note dept

Back in 2009, Techdirt wrote about an interesting challenge to a then-new law against counterfeits in Kenya, on the grounds that it might be used to stop perfectly legal generic variants of drugs being imported into the country. That matters, because around 90% of drugs used in Kenya are generics, which means that blocking them would have serious implications for healthcare in that country.

Michael Geist points out that two and half years later, the court has finally delivered its verdict, and it's a great result: Kenya's High court ruled on Friday that lawmakers must review legislation that could threaten the import of generic drugs, allowing Kenyans to continue accessing affordable medicine. The judge specifically noted the problem mentioned above: "The act is vague and could undermine access to affordable generic medicines since the act had failed to clearly distinguish between counterfeit and generic medicines," Judge Mumbi Ngugi said in her ruling. As a result, Kenyan lawmakers will have to amend the bill to distinguish clearly between counterfeit and generic drugs.

That's not only a huge win for the millions of Kenyans who depend upon generics for their treatment, but it also highlights a key problem for ACTA and TPP, which both seek to grant broad powers to border officials to seize medicines without distinguishing sufficiently between counterfeits and generics.

Here's what the international humanitarian aid organization Médecins Sans Frontières (MSF) has to say about ACTA and generics (pdf): While it is claimed that ACTA will protect against falsified medicines by allowing countries and companies to take strong measures in trademark disputes, this may in fact impede access to genuine generic medicines. Meanwhile, MSF comments on TPP as follows (pdf): the U.S. is requesting that TPP countries grant customs officials the ex officio right to detain shipments of medicines at the border, even in transit, if the goods are suspected of being counterfeits or if they are considered “confusingly similar” to trademarked goods. Other countries need to follow Kenya's lead and confirm that access to vital generic medicines is a right that cannot be over-ridden by purely commercial considerations. Among other things, that means throwing out ACTA, and re-drafting TPP's dangerously vague sections dealing with counterfeit drugs.

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Filed Under: acta, counterfeit, generic drugs, health care, kenya, tpp