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Competition law and healthcare – lessons from the Hazel Tau case

Competition law and healthcare – lessons from the Hazel Tau case
Aiden Louw
By Aiden Louw
2 Dec 2022
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Competition law can be used to facilitate access to affordable medicines, as demonstrated by the 2002 Hazel Tau & others case against big pharma companies GlaxoSmithKline and Boehringer Ingelheim. This case is a reminder that for many South Africans with chronic illnesses, access to medication remains a struggle.

A seminar on the Hazel Tau case was held by the Competition Commission and the Health Justice Initiative on World Aids Day to commemorate the monumental role that the case played in the fight for affordable antiretrovirals (ARVs) in sub-Saharan Africa. 

The case set a precedent for the way competition law can be used, the Competition Commission’s Nandi Mokoena said at the seminar: 

“Competition law is one measure available to progressively realise the right to healthcare to all and it needs to be actively used, otherwise we would not be meeting our constitutional mandate as an entity.” 

Those lost to big pharma


At the time of the case in 2002, 5.9 million South Africans were infected with HIV/Aids and were unable to access treatment, added the director of the Health Justice Initiative, Fatima Hassan. 

“The state-sponsored ARV denialism influenced the lack of access in the public sector and prices,” she explained. “Unless you had a lot of money or a really comprehensive medical scheme or private sponsor, you would not be able to access ARV… You would die prematurely.” 

Tau was one of the first complainants against the pharmaceutical companies and although her treatment was sponsored, she maintained that “with or without a sponsor, I was willing to push until we get treatment”.

A bittersweet win


Tau has mixed emotions about her win. 

“It was a bittersweet experience because everyone could not be saved. I was still in pain. I lost friends, family, colleagues,” she said. 

While the availability of ARVs had helped many in the country, there were still problems facing the HIV/Aids community that needed to be addressed. 

“We lost millions of people who were breadwinners, which has left the country with orphans and child-headed households.” 

There is still a long way to go with stigma, added Tau. 

“(Your HIV status is something) that people think is easier, but it is not easier to disclose. It depends on the type of support you have”. 

One reason behind the stigma is HIV-specific clinics, said Tau, and health workers who disclose people’s status when handing them forms or medication in clinics. 

To negate this, Tau suggested that all sicknesses are grouped together, and that separate clinics for HIV are removed. 

Abuse of dominance


Abuse of dominance among patent holders remains a challenge and should be a concern for the competition authorities. 

“Abuse of dominance… stems from you having the patent… or from being the only provider in the market,” explained divisional manager at the Competition Commission, Mapato Ramokgopa. 

This abuse is made evident when treatments are only accessible to those with medical aid, she said. 

Read in Daily Maverick:

“On this World Aids Day, do the right thing – save the TAC, save lives”

“World Aids Day — It is vital to be vigilant on quality as we rush to test people for HIV”

“‘One day a year is not enough to fight HIV in South Africa’”

“HIV/Aids inequality must end to halt the persistent epidemic”

“People with HIV are developing different cancers,” said Tau, adding that it remains a struggle to access affordable cancer treatment. 

“Improving cancer treatment is a concern that I don’t think our government is ready to (address)...which means that every chronic disease in South Africa needs to be picketed for, which is a very unfortunate situation for us.” 

Chronic medication is not like bread, where you can just go to another store for a cheaper option, said Hassan. 

“We need to accommodate everyone who has chronic illnesses,” added Ramokgopa, and competition law is one way this can be done, as proven by Tau’s case. DM/MC

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