Step up efforts to fight trade in counterfeit goods, urges manufacturer's lobby

By Betty Maina

A two-year-old boy gets sick and is rushed to a hospital in Kwale. The clinical officer at the hospital diagnoses feverish convulsions and quickly rushes to the hospital’s pharmacy where he obtains a dose of medicine that will ease the boy’s suffering.Counterfeit medicines are common in Kenya

However, nothing happens, and the convulsions continue. As a result of this, the boy is given additional doses of the same drug to which he does respond.

He finally passes away. Only later, do investigations reveal that the drug administered to the bow had no active ingredients. The drug was a fake.

This is just but one of the sad cases that have led to loss of lives due to the ingestion of counterfeit drugs that have infiltrated the country over the past few years at unprecedented levels.

The Anti-counterfeit Bill 2008 defines counterfeiting as the manufacture, production, packaging, re-packing, labelling or making, whether in Kenya or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such degree that the counterfeit goods are identical or substantially similar copies of the protected goods.

This definition also covers imitation of the subject matter of intellectual property such that fake goods are confused with the protected goods of a particular owner or produced under licence; as well as the violation of an author’s rights or related rights.

Counterfeiting is a vexing problem that has permeated society not only locally, but also internationally. It is a predicament that has put many countries in a dilemma as counterfeit products continue to take toll on our entire socio-economic fabric.

In Kenya, massive fake products have infiltrated our markets without any prohibition, raising both safety and health concerns throughout the country.

Our own Treasury is losing vast amounts of money in unpaid taxes lost on two fronts. On the one hand, fake products use panya routes into the market so they don’t pay taxes, and secondly, as counterfeits flood the market, they reduce the market share of genuine products which are taxed.

Grim statistics indicate that Kenyan manufacturers incur an annual net loss of over Sh30 billion, while the government loses Sh6 billion in potential profits and tax revenue due to counterfeit trade.

Counterfeiting is a menace that can no longer be ignored or allowed to continue any more. It must be put to an end immediately if we are to curb economic loss the world
over.

Even as we fight this nuisance which is like a festering wound on global trade, it is important to understand what constitutes counterfeits for different products.

Commonly counterfeited products include imported drugs, shoes, textile products, office supplies, tubes and tires, batteries, shoe polish, soaps, and detergents. The counterfeiting of different products exposes consumers to varying degrees of risk, the short-lived benefits of “affordability” notwithstanding.

Distinguishing Counterfeits

In the pharmaceutical industry for instance, generic drugs are not be confused with counterfeits or a sub-standard product.

These are dissimilar in all ways. Counterfeit medicines are drugs that are deliberately and fraudulently mislabelled with respect to their identity or source.

On the other hand, generics are those that are produced and distributed without patent protection. Generic drugs may still have a patent on the formulation but not on the active ingredient and are normally effective but much cheaper
than the original drugs.

Counterfeits can apply to both branded (original) and generic drugs which may include products with correct ingredients /components, those with wrong ingredients/components, those without active ingredients, those with incorrect amounts of active ingredients, and those with fake packaging.

The issue of counterfeits as regards medical products in particular should be handled with absolute care because it involves human lives.

It should be noted that generics are not counterfeits; they have always existed and will continue doing so because they are of great help in the global fight against  HIV/Aids, malaria and tuberculosis among other diseases.

Taking advantage of the genuine importation of generics, unscrupulous individuals have however come up with counterfeit generics.

Although the wrong view has been propagated that the Anti-counterfeits Bill 2008 is out to kill generics, and therefore parallel importation, the fact of the matter is that this Bill is actually to protect mwananchi from the detrimental effects of using bogus products.

Over the past few weeks, concern has been raised that the Bill will interfere with genuine, legitimate generic drugs which are not true.

This will not happen because even as the new Bill is enacted into law, measures will be put into place to ensure that it does not in any way meddle with the importation of generics, which are a boon for the poor who can ill afford the expensive original drugs.

Ms Betty Mina is Chief Executive Officer Kenya Association of Manufacturers.