Senator Feinstein Calls Upon Africa Trade Conference Committee to Include ‘AIDS in Africa’ Amendment in Final Report
May 1, 2000

Washington, DC – U.S. Senator Dianne Feinstein (D-Calif.) last night threatened to filibuster or take other actions to delay passage of the Africa Growth and Opportunity Act if the final conference report does not include the AIDS in Africa amendment, which she sponsored with Senator Russ Feingold (D-WI). The amendment would help ensure access to generic AIDS drugs for African nations that have been ravaged by the disease.

The following is the text of Senator Feinstein’s statement:

“Mr. President, I thank my cosponsor, the distinguished Senator from Wisconsin, for those words. I want him to know, I want the Senate to know, and I want the House to know how important this amendment is. It is so important that both of us are willing to filibuster a conference report. I think it is only fair to send that signal loudly and clearly.

The reason I do so is because I was the Mayor of the first city with AIDS. I spent 9 years as Mayor understanding what AIDS can do and how it can spread and understanding the importance not only of prevention of AIDS, which is all important, but also of being able to treat an AIDS-infected population adequately.

Let me say something about the AIDS pandemic now sweeping across sub-Saharan Africa. Sub-Saharan Africa has been far more severely effected by AIDS than any other part of the world. The bottom line of all of this is, there will not be an Africa left for an African trade initiative unless this amendment is part of that initiative.

The United Nations reports that 23.3 million--not thousand, million--adults and children are infected with the HIV virus in Africa. Africa has about 10 percent of the world's population, but it has 70 percent of the total number of infected people in the world. Worldwide, about 5.6 million new infections will occur this year, with an estimated 3.8 million in sub-Saharan Africa alone. Every single day, 11,000 people are infected in sub-Saharan Africa. That is 1 every 8 seconds.

All told, over 34 million people in Africa--the population of California--have been infected with HIV since the pandemic began. An estimated 13.7 million Africans have lost their lives to AIDS, including 2 million who died in 1998. It is enormous, and it is hidden because of the cultural taboos that surround it. Each day, AIDS buries 5,500 men, women, and children. By 2005, if policies do not change, the daily death toll will reach 13,000--double what it is now--with nearly 5 million AIDS deaths in 2005 alone, in sub-Saharan Africa.

The overall rate of infection among adults in sub-Saharan Africa is 8 percent, compared with a 1.1-percent infection rate worldwide. In some countries of southern Africa, 20 percent to 30 percent of the entire adult population is infected. AIDS has cut life expectancy by 4 years in Nigeria, 18 years in Kenya, and 26 years in Zimbabwe. Imagine, AIDS cutting life expectancy by 26 years. That is the case in Zimbabwe today.

AIDS is devastating Africa. It is affecting infant and child mortality rates, reversing the declines that have been occurring in many countries during the 1970s and 1980s. Over 30 percent of all children born to HIV-infected mothers in sub-Saharan Africa will themselves become HIV infected. There are many explanations why this pandemic is sweeping across sub-Saharan Africa. Certainly, the region's poverty, which has deprived Africans of access to health information, health education, and health care. Cultural and behavioral patterns have led to sub-Saharan Africa being the only region in which women are infected with HIV at a higher rate than men. Clearly, there needs to be considerable emphasis addressing the health care infrastructure of Africa. There must also be additional resources for education.

If the international community is to be successful, we must also make every effort to get appropriate medicine into the hands of those in need. For too many years, there were no effective drugs that could be used to combat HIV/AIDS. Now, thanks to recent medical research, we do have effective medicine. For example, some recent pilot projects have had success in reducing mother-to-child transmission by administering the anti-HIV drug AZT, or a less expensive medicine, Nevirapne, NVP, during birth and early childhood. As a matter of fact, four pills can prevent, in many cases, the transmission of HIV from a mother to an unborn child.

Unfortunately, and inexplicably in my view, access for poor Africans to costly combinations of AIDS medications, including antiretrovirals, is perhaps the most contentious issue surrounding the response to the African pandemic. I happen to believe we have a very strong moral obligation to try to save lives when the medications for doing so actually exist. There are several things the United States could do to increase access to life-saving drugs.

First, we can work with others in the international community to provide support to make these drugs affordable and to strengthen African health care systems so that drug therapies can be administered. Second, we should not prevent African Governments and donor agencies from achieving reductions in the cost of antiretrovirals through negotiated agreements with drug manufacturers. The British pharmaceutical firm, Glaxo Wellcome, a major producer of antiretrovirals, has already stated it is committed to differential pricing which would lower the cost of AIDS drugs in Africa. Third, I strongly believe the United States must not oppose parallel importing and compulsory licensing by African Governments, to lower the price of patented medications so that HIV/AIDS drugs are more affordable and more people in Africa will have access to them. That is what the amendment that Senator Feingold and I offered would do.

Through parallel importing, patented pharmaceuticals could be purchased from the cheapest source, rather than from the manufacturer. Under compulsory licensing, an African Government could order a local firm to produce a drug and pay a negotiated royalty to the patent holder. Both parallel imports and compulsory licensing are permitted under the World Trade Organization agreement for countries facing health emergencies. This is a health emergency. Without compulsory licensing and parallel importing, which would allow access to cheaper generic drugs, more people in sub-Saharan Africa will suffer and die needlessly.

For my colleagues who may be concerned that this amendment may undermine wider intellectual property rights, an accusation that those opposed to this amendment--and let me be frank, the pharmaceutical industry--is making, they are incorrect. This amendment reaffirms the World Trade Organization's TRIPS agreements which is the legal standard for intellectual property rights.

TRIPS does not prohibit parallel importing and compulsory licensing during health emergencies. That is fully consistent with current U.S. policy on intellectual property rights. In other words, despite what some pharmaceutical companies have been saying behind closed doors about this amendment, the amendment does not weaken intellectual property rights protection one iota. It keeps the bar exactly where it is now.

The World Trade Organization and U.S. commitments on intellectual property protection allows countries flexibility in addressing public health concerns. The compulsory licensing process under this amendment is fully consistent with the WTO's approach to balancing the protection of intellectual property, with a moral obligation to meet public health emergencies such as the HIV/AIDS pandemic in Africa. In other words, this amendment is consistent with international trade law.

The amendment does not create new policy or a new approach on intellectual property rights under TRIPS, nor does it require intellectual property rights to be rolled back or weakened. All it asks is that in approaching HIV/AIDS in Africa, U.S. policy on compulsory licensing and parallel importing remain consistent with what is accepted under international trade law. By doing so, the amendment will allow countries of sub-Saharan Africa to continue to determine the availability of HIV/AIDS pharmaceuticals in their countries and provide their people with affordable HIV drugs.

By itself, the amendment is not going to solve the problems of AIDS in Africa. Opponents of the amendment suggest that because it doesn't address the entire HIV/AIDS problem, it should be removed from the bill. They argue that because the health care infrastructure is weak, allowing parallel importing and compulsory licensing will not get the drugs to the people who need them.

That misses the point. Although it is true we need to strengthen infrastructure, and my amendment contains language urging additional efforts in this area, that was never the purpose or intent of the amendment. Its purpose and intent was to address this one specific issue, this one small piece of the puzzle, and in so doing, provide some measure of relief to the millions and millions of people now suffering from AIDS in sub-Saharan Africa.

Let me provide one example of why the approach adopted by this amendment, admittedly one small part of a larger effort, is necessary. On March 14 of this year, Doctors Without Borders, the medical relief group that won the Nobel Prize last year, sent a letter to Pfizer calling on Pfizer to lower the price of fluconazole, a drug needed to treat cryptococcal meningitis, the most common systematic functional infection in HIV-positive people in developing countries. As the Doctors Without Borders letter notes, in Thailand, fluconazole is available for just $1.20 for a daily dose. Yet in Kenya and South Africa, the daily dose costs $17.84. It is 15 times higher in Africa than in Thailand.

That is unconscionable. So, what accounts for the difference? In Thailand, a generic version is available. In Kenya and South Africa, the only supplier is Pfizer. As Bernard Pecoul, director of Doctors Without Borders Access to Essential Medicines Campaigns, has noted, ‘People are dying because the price of the drug that can save them is too high.’

As the March 14 Doctors Without Borders letter notes, ‘While we appreciate that patents can be an important motor of research and development funding, there must be a balance to ensure that people in developing countries have access to lifesaving medicines.’

That is the purpose of my amendment, and I am deadly serious about it.

I am pleased to note that, under pressure from Doctors Without Borders, Pfizer has now agreed to lower the prices of fluconazole. This situation never should have existed to begin with. Ironically, the pharmaceutical companies would profit more from this amendment than they do right now. Presently, most sub-Saharan African countries are not buying these drugs because they can't afford the price tag. So the pharmaceutical companies are not earning any money at all on these drugs. But if sub-Saharan African countries produced HIV/AIDS drugs through compulsory licensing or purchased them through parallel importing, the pharmaceutical companies holding the patents on these drugs would receive royalties.

I was very pleased to work with the managers of this bill, when the African Growth and Opportunity Act was on the floor of the Senate last November, to modify my amendments to meet some of their concerns and to have their support in seeing it included in the final Senate-passed version of this bill.

I have been happy to work with them. My staff has worked with their staff over the past several months to try to meet some additional concerns which have subsequently been voiced. But, frankly, my patience is wearing very thin. The pharmaceutical companies that are opposed to this amendment, opposed because they want to squeeze every last drop of profit from the suffering of the millions of HIV/AIDS victims in sub-Sarahan Africa. They have shown no willingness to compromise, no willingness to enter into good-faith negotiations.

I am more than willing to see additional clarifying language added to this amendment in conference. I believe strongly that the core of the amendment must remain and that efforts to either remove this amendment or to gut it are both inexplicable and reprehensible, and I am determined not to let this happen.

It is clearly in the interests of the United States to prevent the further spread of HIV/AIDS in Africa. I believe my amendment is a necessary part to the Africa Growth and Opportunity Act if we are to continue to assist the countries of this region in halting the number of premature deaths from AIDS.

Antiretroviral drugs can work to improve the quality and length of life. The United States has the power to make these lifesaving drugs more affordable and more accessible to Africans. We should not turn our backs, and the greed of the pharmaceutical industry should not stop us.

I am absolutely determined that if a conference report comes to this floor without this amendment, Senator Feingold and I, and I hope others, will join together and filibuster this report.