Owing to the devastating effects of counterfeit pharmaceuticals on individual patients, brand owners and the economy, law firm Spoor & Fisher works with the South African Police Service (SAPS), the South African Revenue Service’s division, the Department of Customs & Excise and State Prosecutors to prohibit counterfeit pharmaceuticals imports and enforce seizure of these goods in the marketplace.
Spoor & Fisher partner and attorney Mohamed Khader tells Engineering News that the Counterfeit Goods Act functions as enforcement legislation for counterfeit goods, such as pharmaceuticals, and it was put in place to bring quick and effective relief in the seizure process for brand owners that are implicated when counterfeit goods enter the country or when found in the local marketplace.
In the absence of the Counterfeit Goods Act, a brand owner’s first step would be to approach the High Court and that is often a lengthy undertaking. “The counterfeit goods would no doubt be sold or disposed off before a High Court case was issued.”
However, this Act enables the brand owner to file an affidavit with the SAPS – its Specialised Commercial Crimes division – after which a warrant to search and seize the suspected source of counterfeit pharmaceuticals can be issued.
“Once the goods are seized, a brand owner can approach the High Court for additional relief, including interdicts and damages. With this legislation, the potentially fatal products are taken out of the marketplace much quicker, which ensures consumer safety and the brand owner’s company integrity,” he explains.
The risk for consumers using these counterfeits lies in, among other things, the problem of the active ingredients, which serve a specific purpose according to its dosage, differing from the original product.
“The problem with counterfeit products is that there is no guarantee that the right amount of active ingredients is in the product, too little or too much could have fatal implications for the patient,” comments Khader.
He adds that these products are such that an unsuspecting consumer would not be able to identify it as counterfeit. The packaging materials are virtually identical, he comments, suggesting that consumers remain cautious and vigilant of where they purchase pharmaceutical products and that any suspicions should be reported to the brand owner of the product.
Since the environment in which these counterfeit pharmaceuticals are manufactured is not regulated, it could easily be unhygienic and lead to increased risk for the patient, since the goods can be cross-contaminated with toxic substances.
He points out that pharmaceuticals that are commonly counterfeited include painkillers, weight management medication and erectile dysfunction drugs, which are mostly imported from China.
“These imports slip through Customs at the country’s points of entry, owing to Customs not being able to check every container or consignment that comes through. The global statistic for containers being checked by customs officials is 2% to 5% of all containers at any point of entry,” Khader highlights.
He explains further that the challenge in South Africa, especially, is the variety of entry points. Land borders, airports and harbours are easily accessible from all sides of the country. “If Customs officials suspect a container with potential counterfeit goods, they have authorisation to detain the containers and get brand owners to verify the goods’ authenticity.”
Another challenge in South Africa, he mentions, is its large informal trading market, where counterfeit pharmaceuticals are most often sold at flea markets, street vendors and informal kiosks.
Khader works with brand owners, the SAPS and prosecutors on a daily basis to strategise, investigate, identify, raid, prosecute and hopefully convict importers, traders and distributors of counterfeit goods in South Africa.
“Brand owners visit Customs regularly and continuously train the officials to identify counterfeits of products associated with their brand. This is key to any anti-counterfeiting enforcement strategy.”
He concludes that the officials realise the implications of counterfeit pharmaceuticals coming into the country not only on individuals, but also the economy. “Counterfeiters do not pay duties and taxes, which affects the country’s revenue. Further, there is always the risk of brand owners pulling their investments from the country if there is not enough enforcement of the laws pertaining to counterfeit goods.”