Why and How to Make an International Crime of Medicine Counterfeiting

The article explores why — when the counterfeiting of medicines is so prevalent, hard to detect and quietly dangerous or fatal — it remains totally unaddressed and therefore legal in international criminal law. It is argued that criminalizing the counterfeiting of medicines on an international scale would present no legally insurmountable barriers, and would offer significant advantages over the current national-scale approaches. The authors propose a legal definition of ‘counterfeit’, canvass the current legal doctrines that could be arrayed to better criminalize medicine counterfeiting, including classifying the severest instances as crimes against humanity, and explain the mechanisms necessary to close the jurisdictional gaps that are currently exploited by organized criminals who trade in counterfeit medicines across borders. They suggest that a counterfeit medicine treaty should be drafted under the auspices of the World Health Organization, and illustrate the feasibility of doing so with existing and developing treaty law on another health danger, tobacco.