14 November 2024, South Africa. The Cancer Alliance, represented by SECTION27, has been admitted by the Competition Tribunal as an intervening party in the excessive pricing case initiated by the Competition Commission. The case is against Switzerland-based multinational healthcare company, Roche Holdings AG and its subsidiaries (collectively referred to as Roche).
Overcharging of Life saving Cancer treatment
The Competition Commission lodged a complaint with the Competition Tribunal alleging that Roche violated the Competition Act by charging excessive pricing for Trastuzumab, a life-saving treatment for an aggressive type of breast cancer called Human Epidermal Growth Factor Receptor 2 Positive, breast cancer (HER2+).
A violation of human rights?
The Commission also alleges that the limitations to accessing trastuzumab imposed on South African breast cancer patients, as a result of the excessively high prices charged by Roche for its products during the relevant period, constituted a violation of basic human rights, including access to healthcare.
Roche is alleged to have engaged in excessive pricing in the private sector between January 2011 and July 2019 and further alleged to have engaged in excessive pricing in selling the drug to the government between 19 November 2015 and July 2020.
Tender awarded for the cancer treatment
Trastuzumab was first made accessible in South Africa, in the private sector, in 2001. Trastuzumab was approved for sale in the public health sector in 2012, but sales only began in 2015, and a tender was awarded to Roche in 2018 for the provision of the drug for two years in the public health sector. During this period there was no alternative way, for the private sector or for the government, to access the drug outside of buying it from Roche.
In November 2019, following the lapse of Roche’s patent on the Trastuzumab, a generic version of the drug (called Ogivri) was approved for sale in South Africa, which was sold at a significantly lower price by a different company. This resulted in Roche reducing the price of the Trastuzumab considerably. The National Department of Health later awarded a tender for the supply of the drug to that company starting in July 2020.
As amicus curiae, the Cancer Alliance seeks to present submissions before the Competition Tribunal:
- Addressing the harm suffered by both public and private sector patients with breast cancer as a result of the alleged excessive pricing of Trastuzumab during the relevant period;
- Discussing the relationship between competition and patent law, and propose the appropriate approach for the Tribunal to take when dealing with excessive pricing referrals in respect of patented products in general, and patented medicines in particular;
- Specifying how the Tribunal ought to interpret and apply section 8 of the Act in light of the positive and negative obligations imposed on all organs of state by the constitutionally entrenched right to have access to health care services, which includes access to medicines of proven quality, safety, and efficacy; and
- Addressing the appropriate remedy that should be granted if the Tribunal finds that one or more of the respondents in the complaint referral have contravened the Act during the relevant period.
The Cancer Alliance fights back
The Cancer Alliance has long been involved in the fight for affordable access to Trastuzumab and other lifesaving cancer treatments in both the private and public health sectors, including in its capacity as a member of the Fix the Patent Laws coalition.
End note
Tobeka Daki, a passionate Cancer Alliance activist, tragically succumbed to breast cancer due to a lack of access to treatment six years ago today. To pay tribute to Tobeka Daki’s memory, the Cancer Alliance launched the Tobeka Daki Campaign for Access to Trastuzumab. And notably, on the sixth anniversary of Tobeka Daki’s passing, the Cancer Alliance is admitted as amicus curiae in this important case.
Read more about breast cancer prevention here:
Does Hormone Replacement Therapy (HRT) Increase Your Risk of Breast Cancer?
