Medicine pricing regulations are unenforceable, New Clicks tells court
June 18, 2004
By Ben Maclennan
Cape Town - The government`s new medicine pricing regulations were incoherent and so vague as to be unenforceable, a full bench of the Cape high court was told yesterday.
Counsel for New Clicks, the Pharmaceutical Society of SA (PSSA) and six other applicants were presenting arguments to have the regulations set aside.
Minister of health Manto Tshabalala-Msimang and the chairman of the statutory pricing committee, Di McIntyre, are contesting the application.
Jeremy Gauntlett, appearing for New Clicks, told the court that by threatening the viability of pharmacies, the regulations were inimical to the constitutional right to health services.
For the pricing committee to make valid recommendations, he argued, it had to follow proper procedure. Instead, stakeholder representations were heard by an `amorphous interchangeable shifting mass` of health officials and committee members, which constituted an `absolutely fatal weakness` in the state`s case.
One test of a valid regulation was `reasonable clarity`, and the fact that these regulations did not include a clear methodology for establishing the single exit price made them vague and uncertain.
Wim Trengove, for the PSSA, said the pricing committee had adopted a `disturbingly cavalier` approach to the effect of the regulations on the availability of healthcare and the effect on low-margin courier pharmacies.
Marumo Moerane, appearing for the state, said it was significant that no manufacturers were challenging the regulations. They understood the provisions of the act and the meaning of a single exit price, he argued.
He said the pricing committee recommendations did not constitute administrative action and were therefore not open to review.
Moerane will continue his argument this morning.
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