[Congressional Record Volume 146, Number 50 (Thursday, April 27, 2000)]
[Senate]
[Pages S3037-S3039]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   AFRICAN GROWTH AND OPPORTUNITY ACT

  Mr. FEINGOLD. Mr. President, I am delighted to be here, along with 
the Senator from California, who I believe is one of the most 
determined and effective Members of the Senate, to talk about a very 
important matter.
  Last year, when this Senate was debating the African Growth and 
Opportunity Act, Senator Feinstein and I offered an amendment to that 
legislation, which was accepted by the bill's managers Senators Roth 
and Moynihan, to address to critically important issue--an issue 
relating to Africa's devastating AIDS crisis; an issue that has cast a 
dark shadow on US-African relations in the past.
  Our amendment was simple--and I want to clarify this point, because


[[Page S3038]]

there has been some misleading characterizations of it in print 
recently. It prohibited any agent of the United States Government from 
pressuring African countries to revoke or change laws aimed at 
increasing access to HIV/AIDS drugs, so long as the laws in question 
adhered to existing international regulations governing trade. Quite 
simply, our amendment told the executive branch to stop twisting the 
arms of African countries that are using legal means to improve access 
to HIV/AIDS pharmaceuticals for their people.
  The Agreement on Trade Related Aspects of Intellectual Property 
Rights, or TRIPS, allows for compulsory licensing in cases of national 
emergency. HIV/AIDS kills 5,500 Africans every day. Approximately 13 
million African lives have been lost since the onset of the crisis. 
According to the Rockefeller Foundation's recent report, ``on 
statistics alone, young people from the most affected countries in 
Africa are more likely than not to perish of AIDS.''
  In contrast to this incredible crisis, is a very modest amendment. 
This year a number of our colleagues have offered very ambitious 
proposals--many of which I support--aimed at addressing the AIDS crisis 
in Africa because they have been moved by the severity of the crisis, 
by the scope of the devastation, by the human tragedy of millions lost 
to disease and a generation of orphans left in their wake. The Senate 
Foreign Relations Committee recently reported out legislation combining 
many of these efforts in one integrated plan to get serious about this 
crisis. Time and again, Members of this Senate on a bipartisan basis 
have stepped forward to implore their colleagues to do more to help.
  What is ironic is that this amendment was far less ambitious. It 
simply took a step toward requiring the United States to do no harm. 
Yet the conferees working on the African Growth and Opportunity Act are 
resisting this measure every step of the way. I find the resistance to 
this measure baffling. They try to skirt the issue, pointing out that 
prevention programs, not access to drugs, are the most important 
element in the fight against AIDS.
  I couldn't agree more. But why does the fact that the Feinstein-
Feingold amendment addresses only one small piece of the puzzle prevent 
us from making it law? Why on earth should we forgo an opportunity to 
do no harm even as we strive to form a broader plan of action to do 
some good? How can anyone justify pressuring these countries, where in 
some cases life expectancies have dropped by more than fifteen years, 
not to use all legal means at their disposal to care for their 
citizens? I simply cannot understand it; I cannot imagine that ordinary 
Americans are urging their representatives to oppose the Feinstein-
Feingold amendment. I cannot imagine that anyone would prevail upon my 
colleagues to oppose this measure--except perhaps for pharmaceutical 
companies, companies that know they would not lose customers in Africa, 
as Africans simply cannot afford their prices, but fear that this 
measure would somehow, somewhere down the road, affect their bottom 
line.
  The bottom line in Africa is that AIDS represents that worst 
infectious disease catastrophe since the bubonic plague. The bottom 
line is that this is a modest measure and it is the right thing to do. 
I along with the Senator from California, urge the conferees to support 
it.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator from 
California.
  Mrs. FEINSTEIN. 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 2.2 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.

[[Page S3039]]

  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.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, first of all, let me say to the Senator 
from California I really appreciate her work. I not only heard what she 
said but I feel what she said and I would like to be counted as a 
supporter. If she needs to do the filibuster, I know how to do that. I 
will be out here with her.
  Mrs. FEINSTEIN. I thank my colleague. We will count on him.

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