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Rules to tackle illicit tobacco trade could hit medicines

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But efforts to tackle the illicit trade of tobacco could have repercussions on medicines too, caution health authorities from emerging economies such as India and Brazil.

At negotiations under way in Geneva, there is opposition to the use of the word “counterfeit” in the World Health Organisation’s draft protocol to tackle illicit tobacco trade.

Counterfeits are a trade issue and should be kept out of health-related laws, representatives from India and Brazil have maintained.

The main concern with using the word “counterfeit” in dealing with illicit tobacco trade is it sets a bad precedent. The interpretation is that the product is not what it seems to be, and a lot of time would be spent fighting tobacco manufacturers on trademark issues — when, in fact, the sale of tobacco products need to be discouraged in any form, genuine or otherwise, a Government official familiar with the development told Business Line.


“We are hopeful that the word ‘counterfeit’ will not be used at all in WHO’s FCTC (Framework Convention on Tobacco Control) protocol on illicit tobacco trade. The final negotiating session is being held now and is due to finish on April 4.

“Brazil has led the charge to have the term removed from the draft protocol, and is supported by a large number of FCTC parties. As I write, the EU is considering its position on this issue,” Mr Jonathan Liberman, Director with Australia’s McCabe Centre for Law and Cancer, said in his response, late on Saturday.

“The use of ‘counterfeit’ is extremely problematic in the tobacco context — because protection of the tobacco industry’s IP (intellectual property) rights is not a matter for a WHO treaty — and, in addition, if it is used in this protocol, in the face of everything that has been happening in the WHO on medicines over the last four years, it may later be argued by those on the IP-maximalism side of the debate that this sets a precedent that should be followed in the medicines context,” he explained.


The Indian Government’s position on medicines that are not genuine is to call them “substandard, falsified or spurious” not “counterfeit” — which has to do with misuse of a brand-name, trademark or logo, the Government official said.

Besides, medicines that are not genuine also are of different types: some whose composition could be good and effective, but the product may be falsely labelled; or the entire product may be substandard, the official added.

“We in India have suffered,” the official said, referring to the seizures of several Indian generic medicine exports in Europe on allegations of trademark infringement.

Matters had come to a boil with the Government taking up the issue at the World Trade Organisation’s Dispute Settlement Body.

A truce has since been called. But Indian health authorities are, nevertheless, keen to ensure that trade rules do not get in the way of dispensing health — be it through encouraging affordable medicine or discouraging tobacco products.

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