How can IP work against counterfeit pharmaceuticals?

By Estudio Chaloupka

A June 29, 2023, report by the Organisation for Economic Cooperation and Development (OECD) analyses trade in counterfeit and pirated goods as a serious and growing risk to economic growth, undermining good governance, the rule of law and citizens’ trust in government. The report also highlights the harmful impact of illicit trade in counterfeit and pirated goods on consumers’ health and safety. Counterfeit medicines, for example, not only cause economic damage for the sector, but are also a significant threat to public health, since they are often not properly formulated and may contain dangerous ingredients.

The study, carried out under the auspices of the OECD’s Task Force on Countering Illicit Trade, focuses on evidence-based research and positions Argentina as one of the top 15 importers of counterfeit pharmaceuticals.

Illicit markets for counterfeit pharmaceuticals are attractive for counterfeiters, given their high profit margins, low risks of detection and prosecution, weak penalties, and the ease with which consumers can be deceived into believing that the counterfeit products are genuine.

In this scenario, intellectual property plays a crucial role in combating counterfeit pharmaceuticals by providing legal tools and mechanisms to protect legitimate pharmaceutical products and their associated rights.

One of those tools is patent protection for pharmaceutical companies and their innovative drugs, which grant them exclusive rights to manufacture and sell those drugs for a certain period. Promoting the registration of trademarks also protects the branding of legitimate pharmaceuticals, making it easier for consumers to identify genuine products. Trade secrets, regulatory exclusivities and data exclusivity are other IP related instruments to take into account.

However other strategies should be bolstered. Argentina has discussed them when holding the presidency of the World Health Organization (WHO) Member State Mechanism on Substandard/Spurious/Falsely-Labelled/Falsified/Counterfeit Medical Projects, which was created to facilitate international collaboration on strategies for fighting counterfeiting of medicines.

Some of those measures are:

-Better Customs enforcement.

-Obligation to establish effective IP enforcement mechanisms through international treaties and agreements.

-Pharmaceutical companies, governments, law enforcement agencies, and international organizations must collaborate to exchange information about counterfeit drugs.

-Raising public awareness about the dangers associated with counterfeit pharmaceuticals.