Brazil’s Supreme Court delivers a groundbreaking decision in favour of access to medicines

Felipe de Carvalho, MSF Access Campaign Advocacy Advisor, Brazil

Brazil’s Supreme Court recently handed down a decision to make a 25-year-old law permitting pharma companies to extend their monopolies on new drugs unconstitutional. It’s an important victory for access to medicines as Felipe de Carvalho explains in conversation with us.

Access Campaign: First, congratulations! This has been a very long struggle — the pharmaceutical industry has been trying to block any revision of this law for many years, why is that?

Felipe de Carvalho: Yes, it’s really a fantastic moment for all of us here who have been fighting for better access to medicines for people in Brazil. The pharmaceutical industry was getting rich off the back of this law. The law ensured that essential drugs were under monopoly for much longer in Brazil in comparison to any other country in the world and that meant higher medicine prices for longer for people here in Brazil compared to other countries.

This was a problem — both for people who buy their medicines out of their own pocket and for the public health system; the government had to ration treatment often, because it simply could not afford the high price of medicines in the country.

After 25 years, were you surprised when your day in court finally arrived?

Yes, it was a dramatic event. We didn’t know until the day itself that it was going to go forward on the Court’s agenda. We have of course been preparing for years, but it all happened very quickly. There were several groups invited to give evidence in the Court — pharma, representatives from the generic drugs industry and there was ourselves, civil society. We all had two minutes to speak.

We gave a very strong statement about how people were dying because drugs were too expensive. And big pharma went through the usual discredited storyline about how they need patents to keep innovating. There was however a very tense environment in the room because nobody knew exactly how the Supreme Court ministers would react to the case. They kept their cards very close to their chest in the run-up to the trial.

How did the courtroom drama play out?

In fact, on the first day of the trial, a minister who was more sensitive to public health arguments, was called on to speak first. He was really furious about the pharmaceutical industry’s underhanded and secretive work before the case opened, to try to spread misleading information in the media and influence the decision before the case started. He spoke out very strongly, and it helped influence the other ministers to vote massively in favour of the unconstitutionality of the law.

So, it was a big win in court that day. But there was more to come. The first vote struck down the constitutionality of the principle of patent extension itself – in practice that means 2,652 pharmaceutical patents that would benefit from patent term extension in the near future, have now lost this privilege, and so the monopolies on these medicines will be ended much sooner. But then the court went even further and voted again and made the same decision valid for drugs that are already in the patent extension period: at a stroke, an additional 3,836 pharmaceutical patents on a variety of essential drugs today in our pharmacies were invalidated!

How significant is the Court decision?

It’s huge! The medicines impacted included a very important drug used after the intubation of people with COVID-19 in ICUs. So now that the patent has been invalidated, Brazil has the option to purchase more affordable generic versions of these drugs — which were too expensive before.

But not only that, now the government can explore a range of more affordable generic suppliers of drugs for people with diabetes, HIV, tuberculosis, cancer and others, all of which have now lost their patents. As a result, the government will be able to increase the numbers of people on treatment — that’s exactly what we wanted to see happen for so long.

So, yes, I think for people this is a big, big win. It was a major injustice in our patent law. It had no social benefit at all. It was basically giving companies more money for no reason.

That’s terrific. But it’s not the only recent victory in Brazil in opening up access to medicines?

No, indeed, we’ve also seen a breakthrough on another piece of legislation we’ve been working to make happen for so long. The Senate has approved a bill that could make compulsory licensing of essential health technologies, such as drugs and vaccines, much easier and faster. We in MSF have long supported the use of compulsory licences to open up access to medicines, and now the pandemic has brought the medical urgency of such a move to centre stage.

The parliamentarians feel that they cannot any longer do nothing about the terrible situation we face here in Brazil — with the of lack of access to vaccines especially. Many of them have said, “We cannot stand here with our arms crossed waiting for a magical solution, we have to act now.”

Is that bill going to become law soon?

Well, we are closer than ever now to a legal reform driven chiefly by the public interest. On June 6th, the House of Representatives also approved the same bill with a landslide majority of 425 votes against 15 votes. The next steps are a formal review by the Senate and then presidential approval.

What’s amazing is how all these issues that are our ‘bread and butter’ have become so familiar now to everyone. I think we reached a point where it has all clicked — people were hearing about these things before, but they had no clue about how they would be really needed and when.

So, now it’s very clear for everybody why these things are important, and you see ordinary people discussing patents and local production and even active pharmaceutical ingredients now! Regular people like my family, my father, my mother, they know all about it! This level of public awareness is crucial to move things along fast in Parliament.

What message do you think these events are sending out to the world?

I think that people and Parliament here are sending a strong message to the federal government in Brazil to end its opposition to the proposed World Trade Organization TRIPS waiver on monopolies and patents on COVID-19 medical technologies. We believe only by getting behind this global waiver can we get out of this pandemic.

On the world stage, I think these victories in Brazil over the monopolistic power of pharmaceutical companies sends the message that Brazil’s solidarity on global health remains alive. So, we hope in particular that the Supreme Court decision here acts as an inspiration to other countries to put people over profits.

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This blog is a place to reflect on our experiences working for access to medicines. For the official MSF Access Campaign website please visit msfaccess.org.