Vice President Gore's June 25, 1999 Letter to James E. Clyburn, endorsing the use of compulsory licensing and parallel imports of pharmaceutical drugs in South Africa

June 25, 1999

The Honorable James E. Clyburn
Chairman, Congressional Black Caucus
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chairman:

        Thank you for your letter on behalf of the Congressional
Black Caucus inquiring into the issue of affordable AIDS
medicines in South Africa. I share with the Caucus an abiding
interest and affection for the people of South Africa and of
Africa as a whole, and I am happy to bring you abreast of
developments in our efforts to resolve our differences with South
Africa over trade in pharmaceuticals.

        I want you to know from the start that I support South
Africa's efforts to enhance health care for its people --
including efforts to engage in compulsory licensing and parallel
importing of pharmaceuticals -- so long as they are done in a way
consistent with international agreements.

        As you know all too well, AIDS has reached epidemic
proportions n South Africa. More than three million South
Africans are HIV positive, and the virus is spreading at an
astonishing, horrifying speed -- infecting more than a thousand
people a day. AIDS is tearing apart communities and wiping out
families, turning wives into widows and children into orphans. At
the current pace, more than 2.5 million South African children
will lose both parents to AIDS in the next ten years. And the
financial means to battle the crisis is itself a casualty; South
Africa's economic growth is slowed by 1 percent each year due to
the impact of HIV/AIDS.

        That is why I put the issue of AIDS at the top of my agenda
during my trip to Cape Town last February for a session of the
U.S-South Africa Binational Commission. Then-Deputy President
Thabo Mbeki and I had a lengthy discussion on the crisis. He has
launched an important campaign of awareness and prevention, but
he knows he needs to provide effective treatment to those for
whom prevention is no longer an option.

        In 1997, in an effort to enhance health care for all South
Africans, the National Assembly passed amendments to the
Medicines Act that granted the government broad, but unspecified
authority to provide more affordable drugs to its people. Out of
concern that this new law might be used in ways that violate
patent rights, more than 40 pharmaceutical firms -- about one
third from South Africa, one third from Europe, and one third
from the U.S. -- challenged the law in South African courts,
claiming the law violates the South African Constitution. After
more than a year, that case is still pending.

        Clearly, there is a global consensus on the need to protect
intellectual property. That is why the 134 nations of the WTO
concluded the WTO/TRIPS (Trade-Related Aspects of Intellectual
Property Rights) agreement to establish international standards
for intellectual property protection.

        The Administration has shared its own concerns with South
Africa over the more vague provisions of the Medicines Act. We
have asked the Government of South Africa to clarify the actions
it would take under the Act, and assure us the actions would
comply with international agreements and not undermine legal
protections for patent holders.

        Under her independent authority mandated by Congress, the
United States Trade Representative named South Africa to the
"watch list" during her Special 301 Annual Review in 1998. Naming
a country to the "watch list" -- the lowest designation in the
review -- triggers no sanctions or threat of sanctions, but calls
for bilateral efforts to resolve the issue. It is also important
to note that naming South Africa to the watch list was not done
solely in response to pharmaceuticals, but extended to other
issues, including protections for computer software, CDs, and
other intellectual property.

        As you may know, the pharmaceutical industry recommended
this year that South Africa be elevated two levels to the
designation "Priority Foreign Country." Such a designation would
have required the Government of South Africa to resolve this
issue to the USTR's satisfaction within a set time, or face trade
sanctions. I believe that such an action would have undercut our
cooperative efforts to resolve this issue with South Africa, and
I urged the USTR to reject the industry recommendation. In the
end, USTR maintained South Africa on the "watch list," where it
had been the previous year.

        In my meeting with then-Deputy President Mbeki here in
Washington in August of last year, he and I agreed to seek a
solution that addressed the need to bring better health care to
South Africans and, at the same time, account for the legitimate
interests of manufacturers. I proposed to then-Deputy President
Mbeki that -- to speed the availability of lower-cost
pharmaceuticals in South Africa -- we work toward a resolution
within a framework that included parallel importing and
compulsory licensing, consistent with international agreements.

        Our efforts to resolve the issue have been slowed by the
ongoing litigation, but my view is the same now as it was then: I
support South Africa's effort to provide AIDS drugs at reduced
prices through compulsory licensing and parallel importing, so
long as they are carried out in a way that is consistent with
international agreements.

        During our meeting in Cape Town in February of this year,
then-Deputy President Mbeki and I again reviewed the issue and
agreed to continue our efforts to resolve our differences. I am
confidant that we will reach a mutually satisfactory agreement.

        Meanwhile, I thank you for your support of the U.S.-South
Africa friendship, and for the commitment of the Congressional
Black Caucus to confront the growing crisis of AIDS in Africa.

Sincerely,

Al Gore