Jonathan Berger

1
A Legal Challenge to the Cost of Antiretroviral
Therapies in South Africa
The Price of Life

• Jonathan Berger
• Law Treatment Access Unit
• AIDS Law Project
• University of the Witwatersrand
• SOUTH AFRICA

Friday, November 21st 2003 Faculty of
Law University of Toronto
2
Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

3
Contextualising the complaint using the law to
increase access
4
Contextualising the complaintold habits die hard
5
Contextualising the complaint government comes
to the table
6
Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

7
What is the complaint?

• GlaxoSmithKline and Boehringer Ingelheim have
  engaged in excessive pricing of ARVs to the
  detriment of consumers, which is directly
  responsible for the premature, predictable and
  avoidable deaths of people living with HIV/AIDS,
  including both children and adults
• In contravention of section 8(a) of the
  Competition Act, 89 of 1998

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Why challenge private sector prices?
Annual cost per patient per drug (exclusive of
VAT and markup) (Based on exchange rate of US1
ZAR 8, with prices as of 19 September 2002)
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Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

10
Complainants and respondents

• Complainants
• People living openly with HIV/AIDS
• Hazel Tau, Nontsikelelo Zwedala, Sindiswa
  Godwana, Isaac Skosana and Paul Ngubane
  (deceased)
• Health care workers
• Sr Sue Roberts, Dr William Mmbara, Dr Steve
  Andrews and Dr Francois Venter
• Organised labour and civil society
• COSATU, CEPPWAWU, TAC and the AIDS Consortium
• Respondents
• GlaxoSmithKline (UK) and associated companies
• Boehringer Ingelheim (Germany) and associated
  companies

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Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

12
What must be proved?

• Charging a price for a good or service which
• (aa) bears no reasonable relation to the
  economic value of that good or service and
• (bb) is higher than the value in (aa)
• What makes up the economic value?
• Manufacturing costs
• RD costs (where applicable)
• Licensing costs (where applicable)
• Reasonable profits

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Adult formulations one cap or tab
(Based on exchange rate of US1 ZAR 10.50,
applicable at time complaint lodged)
14
Paediatric formulations 100ml
(Based on exchange rate of US1 ZAR 10.50,
applicable at time complaint lodged)
15
Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

16
Building a case, building a coalition

• Diversity of complainants
• Different but related interests and needs
• Personal, professional and public interest
• Diversity of experts
• Medical
• Public, private and not-for-profit sector
  practice
• Adults and children
• Provision and management
• Number crunching
• Actuarial science and health economics
• Consumer protection

17
Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

18
Despite

• Global campaign for access
• PMA v Mandela
• Price reductions
• Preferential pricing
• Doha Declaration
• UN Guidelines on HIV/AIDS and Human Rights
  Revised Guideline 6

ARVs still inaccessible!!!
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Overview of presentation

• Complaint to the Competition Commission
• What is the complaint?
• Why challenge private sector prices?
• Who are the complainants and the respondents?
• What must be proved?
• Conceptualising the role of legal action
• Building a case, building a coalition
• Completing unfinished business
• Engaging the Commission, increasing legal options

20
Engaging the Commission, increasing legal options

• PMA v Mandela
• Friend of the court
• Litigation as mobilisation
• Support of access-friendly legislation and state
  fulfillment of constitutional obligations
• TAC v Minister of Health
• Challenge to states failure to fulfill
  obligations
• States obligations to increase access at all
  levels
• Tau v GSK
• Independent investigation into abuse of monopoly

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And now?

• Investigation completed
• Decision to refer
• Settlement negotiations
• Referral if unsuccessful
• Stop the practice!
• Administrative fine
• Class action for damages
• Licenses?

22
Contact details

• Jonathan Berger
• Law Treatment Access Unit
• AIDS Law Project
• University of the Witwatersrand
• SOUTH AFRICA
• 27(0)11.717-8627 (t)
• 27(0)11.403-2341 (f)
• 27(0)83.419-5779 (m)
• bergerj_at_law.wits.ac.za
• www.alp.org.za