Judgement reserved on TAC vs Rath

Giving away free medicines, as Matthias Rath did with his vitamin products, is a well-known way of creating a market, the Treatment Action Campaign’s (TAC) counsel told the Cape High Court on Friday.

Geoff Budlender was delivering final argument in the TAC’s bid for a court order forcing the government to act against what it says is Rath’s illegal distribution of multivitamins in black townships, and his claim that they reverse the course of Aids.

Rath maintains he is not selling the products, but merely donating them to the South African National Civics Organisation for use in a community health programme.

However, Budlender told the court that a book titled The Truth about Drug Companies, which Rath had attached complete to his court papers as an annexure, said that in 2001 drug companies gave doctors nearly $11-billion-worth of “free samples” to encourage eventual paying use.

“In the final analysis, though, it does not matter whether Dr Rath is a great philanthropist or a very shrewd businessman building a market,” Budlender said. “Whichever it is, he must carry out his activities within the law.”

He said donations fall under the broad definition of “sell” in the Medicines Control Act, and that the selling of an unregistered medicine is illegal.

Earlier on Friday, the head of the government’s team of advocates, Marumo Moerane, took issue with a Zapiro cartoon published this week on the court case. The cartoon showed a judge asking Rath’s counsel whether Rath had an expert scientific witness.

“Not as such, but he has his imbongi,” the cartoon counsel replied, along with a picture of the minister dressed as a traditional praise singer.

“There is absolutely no truth in the sting of that cartoon,” Moerane told Judge Dumisani Zondi.
“We are certainly no praise singers of the first respondent [Rath].”

He told the court that though a product might fall under the legal definition of a medicine, not all medicines are subject to registration.

The Medicines Control Council (MCC) had in 2002 issued a “call-up”—the first step towards registration—for “nutritional substances that purport to have therapeutic or medicinal effects”. However, the substance itself has to claim these effects, either on its packaging, labelling or insert.

“All these [Rath] products, no such claims are made by the medicines themselves,” he said. “They do not claim to have therapeutic or medicinal effects ... They are actually not covered by the call-up notice.”

The TAC says Rath made the claims in newspaper advertisements and media interviews.

Moerane also said the TAC cannot expect the minister or her director general to get involved in the issue of clinical trials, which is the domain of the MCC.

The TAC, which is joined in the application by the South African Medical Association, is also seeking a halt to what it says are Rath’s illegal clinical trials on recipients of the vitamins.

Zondi reserved judgement on what he described as a “very constructive and thought-provoking” matter.—Sapa

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