[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
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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.
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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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