HP-Pha-0001-Stock iStockphoto/Lise Gagne.

Fake drugs often contain road paint, heavy metals, bacteria or if you're lucky just talcum powder. The one thing they have in common is they fail to treat the conditions for which they are taken, some even spread drug resistance. Tens of thousands die annually as a result and those profiting from such death are odious and deserving of severe punishment.

The fake drug market runs into billions of dollars and is expanding. Academics like Oxford's Paul Newton are exposing the problem. INTERPOL works with willing governments and an array of pharmaceutical companies and last week major arrests occurred in myriad countries from Sweden to Singapore. Donors are educating medicine regulatory agencies (MRAs) and customs agents in poor countries to monitor quality control and spot dangerous products.

But while such efforts are underway, an impasse has arisen which limits global responses to arresting the most obviously guilty. And although superficially easy to resolve, apparently minor disagreements mask far a far deeper antagonism among key stakeholders.

Counterfeit drugs are defined as mislabeled as to identity or source--drugs passed off as something they're not, with unknown provenance. Customs and police, often backed by companies whose labels (many of which are registered trademarks) are copied, prevent many counterfeit products from entering the supply chain. Over the past year 2.5 million packages were intercepted by EU customs agents, many of which were undoubtedly dangerous to public health.

But under EU law products which violate EU patents can be intercepted as well, even if they are in transit and there is no patent violation in the countries of production or ultimate destination. To be clear patents have nothing to do with labeling, so products which only breach a patent cannot be considered counterfeit. Patent seizures have happened on several occasions this year, notably in the Netherlands. India, the original producer, and Brazil the target recipient in several of the seizures are likely to involve the World Trade Organization to resolve the situation.

Patent seizures may not be WTO compliant, and are certainly unhelpful and should stop, and EU should change its law. Fortunately, the vast majority (93%) of EU customs drug seizures were for trademark violations.

But the countries and groups rightly opposed to patent seizures also appear to be against almost any seizures--identifying them as efforts, encouraged by western pharmaceutical companies, to prevent generic drugs from entering global markets and dismiss international efforts to criminalize fake drug production. Their position is summarized by Henrique Moraes, a Brazilian representative to the EU: "Many new worldwide measures aggressively protect pharmaceutical monopolies under the guise of fighting counterfeits--blocking competition and jeopardizing global access to medicines in the process . . . Rather than investing taxpayer dollars enforcing private rights, public bodies should promote price-lowering competition, drug quality and affordable access to medicines."

Let's be clear about what enforcing a private property right actually means. A trademark violation means that a trader or manufacturer is trying to mislead the public as to the true identity of a product. Such a drug may act as intended, but how can the public trust it if the manufacturer hides his identity? Indian companies have their products faked, just like Western companies. Enforcing trademarks and other labeling infractions improves public health.

Furthermore, it is easy to have price-lowering competition if one doesn't pay attention to drug quality. There are indeed many good Indian producers, but there are numerous slipshod ones and countless counterfeiters who remain at large.

Ignoring differences in quality across producers is inexplicable until one realizes what is really going on - a political battle, not about dangerous drugs but about patent protection and how far generic producers should be favored over innovators. The protagonists will use any argument--including disrupting efforts to combat counterfeit drugs--to further their particular interests; it is a distasteful but quite natural part of the political process.

Western pharmaceutical interests have not opposed seizures of legitimate generic drugs under the guise of preventing counterfeiting, and have not challenged anti-counterfeit laws which conflate patent and trademark violations, notably in places like Uganda and Kenya. Their opponent's positions are even worse. The Indian and Brazilian Governments tout low cost Indian drugs without acknowledging quality variations, and deride enforcement of trademarks, both endanger public health.

It should be relatively easy to agree when and how to stop counterfeit drugs transiting countries, how to enact laws to criminalize the odious producers and traders of them, and how to encourage reform in MRAs to improve quality in poorer locations. Instead we have a political impasse which allows dangerous criminals to flourish and leaves the poor with fewer defenses against them.

Roger Bate is the Legatum Fellow in Global Prosperity at AEI.