May 19, 2014
NEW YORK — The United Nations Development Programme (UNDP) released a new guidebook today encouraging low- and middle-income countries (LMICs) to make greater use of competition law and policy to increase access to HIV treatment and other health technologies.
Governments and civil society actors in a growing number of countries have successfully used competition law to promote healthy, open and fair market conditions in the health technologies sector, “yet many others are only now recognizing the importance of competition law, and are beginning to devote more legislative and administrative resources to the field,” Frederick Abbott, editor and one of the five authors of the Guidebook, said.
Great strides have been made in recent years in scaling up access to treatment for HIV and its co-infections. As of the end of 2012, the large majority of the estimated 9.7 million people on life-saving HIV treatment globally were on generic antiretroviral medicines. But new policy approaches are needed to ensure LMICs can sustainably finance their AIDS responses: treatment guidelines now recommend more patients start treatment earlier, and more patients now require newer, more expensive treatments.
Implementing competition laws and actively using them in the health technologies sector can be one such pathway for LMICs to sustain their treatment programmes.
“The TRIPS Agreement contains some important flexibilities available to World Trade Organisation (WTO) Members to promote access to treatment. As competition law is among the least discussed of these flexibilities, there is a great untapped opportunity for LMICs to incorporate and use competition law to get better value for money and in the longer term to sustain national treatment programmes,” Mandeep Dhaliwal, Director of UNDP’s HIV, Health and Development Practice, said.
In 2003, for example, a finding by the South African Competition Commission led two pharmaceutical companies to conclude licenses with generic pharmaceutical manufacturers. This resulted in increased competition and lower prices for a number of key antiretroviral medicines. This is an example explored in the Guidebook, together with other case-studies.
Calls for the increased use of competition law have also come from the ‘Global Commission on HIV and the Law’, an independent body of eminent persons convened by UNDP on behalf of the Joint United Nations Programme on HIV/AIDS, tasked with interrogating the relationship between legal responses, human rights and HIV.
The Global Commission, as part of its recommendations released in July 2012, recommended that “countries must proactively use other areas of law and policy, such as competition law, price control policy and procurement law which can help increase access to pharmaceutical products.”
Following publication of the Guidebook, UNDP will undertake capacity strengthening activities with national stakeholders in select countries.
Trips Agreement: The WTO’s Agreement on Trade-Related Intellectual Property Rights (TRIPS), which entered into force in 1995, established minimum protection standards for Intellectual Property (IP), which non LDC WTO Members are required to implement through their national legislation. The TRIPS Agreement contains a number of provisions, known as ‘flexibilities’ which allow countries to implement their IP regimes in a way which balances their obligations to protect IP with the right public interests, including public health.