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Yesterday Parliament narrowly voted down C-398, a bill aimed at getting medicines to millions

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On Wednesday a bill that was designed to save millions of lives in the developing world was narrowly defeated in the House of Commons. 

It was NDP MP Hélène Laverdière's Bill C-398, "An Act to amend the Patent Act (drugs for international humanitarian purposes)". 

The Bill, in essence, reproduced a bill Laverdière's colleague Paul Dewar got through the last Parliament, but that died when the election was called in 2011.

Both bills sought to correct the well-meaning, but deeply-flawed, Canadian Access to Medicines Regime, passed to much self-congratulation in 2004.

Here, in brief, is what was at stake.

The 2004 law included impossible hurdles

The desperate fight against HIV/AIDS and other infectious diseases that afflict millions in the developing world depends on costly patent drugs that big Western-based pharmaceutical companies produce.

A drug's patent lasts for twenty years. It is only after the expiry of that period that a generic producer can pay a royalty to the patent holder and make a cheaper version available.

Most of the new generation of retro-viral drugs that combat HIV/AIDS, for instance, are still within that twenty year limit. That puts them out of reach to the bulk of the world's poor.

Back in 2004, the Canadian Parliament decided to do something about this, with the Canadian Access to Medicines Regime (CAMR).

CAMR consisted of a number of amendments to Canada's Food and Drug and Patent laws that, in theory, made it possible for generic manufacturers to produce lower cost versions of drugs still under patent protection -- as long as those lower cost versions were strictly for export to a World Trade Organization (WTO) list of the neediest countries.

The royalties that would have to be paid to the patent holders on these generics were set on a sliding scale, based on degree of need, from a low of less than half of one percent to four percent. 

The purpose of CAMR was, in effect, to force patent holding companies to make their drugs available to developing countries where millions of people face certain death without these life-saving medicines. 

Still, CAMR was win-win, because it would open markets in regions such as sub-Saharan Africa where almost no one was buying the patent drugs -- drugs that were simply way too expensive. Even a half percent royalty for the big pharmaceutical companies would be better than nothing at all. 

The problem is that CAMR -- which was a first in the world -- is full of good intentions, but it does not really work. 

We Canadians wanted to be on the side of virtue, but did not want to seriously provoke big pharma or major world trade players such as the United States.

To accomplish that feat, Parliament slipped some draconian provisions in CAMR that make  it next to impossible for generic manufacturers to get the licenses to produce the needed drugs.

Those provisions were notionally to conform to WTO rules, but actually go beyond what the WTO requires.

A big one is the rule that generic manufacturers cannot get a license to produce patent-protected drugs unless they name the country that will be receiving them and the maximum amount of the drug that country will get.

What's wrong with that?

Well, developing countries are simply terrified of standing up and inviting counter meaures from rich countries, such as the U.S., that do not have laws similar to Canada's CAMR.

When you're a country with a GDP less than the total assets of many major world corporations, you don't dare provoke some of the world's biggest economies. Those big guys could easily retaliate and block exports of, say, your garments or rugs.

Where this hurts is in relation to another WTO rule that requires generic companies to try to negotiate a voluntary arrangement with patent holding companies before they go into production. That rule stipulates a 30-day window for the negotiation.

But the Canadian CAMR of 2004 insists that the 30-day clock cannot start ticking until the generic company specifies the exact country that will buy the drug, and the maximum quantity.

Since some of the world's the biggest trading powers have sufficiently intimidated poorer countries which most need these drugs into a discrete silence, we have a perfect Catch-22 situation.

That's why, since 2004, CAMR has resulted in virtually no generic drugs getting to the world's millions of neediest people.

Simple change; big impact

C-398 would have modified the CAMR, making it possible to get licenses to produce patent drugs for developing countries without naming any specific country.

All that would be necessary would be to specify that the drugs are for those developing countries on the WTO-approved list.

After a country agreed to buy the drugs it would have to inform the WTO and make that public, end of story.

This seemingly small change would have had enormous consequences for people suffering HIV/AIDS, tuberculosis or other diseases in developing countries.

It should have been an easy sell in Parliament, especially since 26 Conservatives supported Paul Dewar's bill in the last Parliament.

But things have changed since then. 

This majority Conservative government places great stock in so-called "free" trade as an engine of economic growth for Canada. Witness the trade negotiations with Europe and the Trans Pacific Partnership discussions. 

Drug patents are front and centre in the Eurpean negotations.

In fact, the Euopeans want to increase the drug patent limit beyond the current twenty years, which would make drugs more expensive not only for the world's poor, but for Canadians.

There is a huge "brand name" pharmaceutical industry in Europe, and European policy makers can be expected to be much more sensitive to its concerns than to those of people dying of HIV/AIDS or tuberculosis in far-away developing countries

As well, the current majority Conservatives have become more hard-line on the inalienable rights of corporations. 

Which of Canada's 'partners' really counts?

In the initial Commons debate on C-398, Laverdière mentioned that the House had already dealt with this matter, and that Canadians support the idea of providing life-saving medicines to those most in need.

"Tens of thousands of citizens signed a petition supporting the bill," the Montreal MP said, "A poll revealed that 80 per cent of Canadians approved of the bill ... MPs from all parties united in the House of Commons to approve the bill. Unfortunately, it died on the order paper." 

"As my mother would have said," Laverdière continued, "'Measure twice, cut once.' That is why we have to get back to work on this today and put this bill back on the agenda."

In response, Conservative Chris Warkentin stated what is, in effect, his Government's official position. 

It's evident that the current Conservatives are not even particularly enthusiastic about the 2004 measure -- however ineffective that has been.

"We embrace [C-3989's] laudable objectives of improving public health in the developing world," Warkentin said, "However, it would not accomplish this goal."

The Government MP went on to argue that Bill C-398 could "harm researchers who have invested their energy and know-how into developing new life-saving drugs."

The Bill's "approach," the Conservative member argued, "would hold back continued pharmaceutical investment here in Canada and reduce the type of new and innovative therapies being brought to the Canadian market."

(Does that mean there might be less research on drugs to combat erectile dysfunction or male-pattern baldness in Canada, while millions die untreated in the developing world? Pity!)

Then came the kicker to the Conservative argument: that C-398, even if it conforms to the letter of WTO rules, defies the "spirit" of the WTO's noblesse oblige decision to allow for the manufacture of generic drugs to fight "health emergencies" in developing countries. 

To Warkentin, what is really at stake is not the health of millions in the developing world but protecting “intellectual property” and remaining onside with Canada's key trading partners. 

We Canadians are, it appears, already doing our bit with the CAMR; we don't want to do more than that tiny, ineffective, little bit.

As Warkentin put it so clearly:

"Bill C-398 would ... make Canada a less stable, less reliable and less welcoming place for those people who want to invest and innovate. . . [it] would be inconsistent with Canada's trade obligations and harm our relationship of trust with our international trading and research partners.”

Those "partners" weigh a lot heavier in the balance than millions suffering from deadly diseases who lack the means to engage high-powered lobbyists.

C-398, in its essential aspect, passed in the last Parliament with some Conservative support; but most  Conservatives who supported Paul Dewar's predecessor bill switched sides on Wednesday.

This Bill was still, officially, private member's business.

The Government has issued no statement on the vote, keeping up the fiction that members were free to vote their conscience, which a small handful of brave Conservatives did.

However, in her statement following the vote, the NDP's Hélène Laverdière says she knows who wanted the Bill defeated.

"In the last few weeks we witnessed a backroom campaign of misinformation coming from the Conservative leadership – misinformation that ultimately led to tonight’s result," Laverdière said, "By voting against this bill, the Conservatives refused to put partisanship aside for the sake of saving lives."

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