Moralizing Economic Brokerage: How Transnational Illegal Drug Brokers Gain Legitimacy in China
Pharmaceutical transaction or brokerage concerns a special commodity that directly affects human health and life quality, but its morality or legitimacy is relatively understudied. High prices of pharmaceuticals, especially those effective in treating deadly diseases like cancer, often infringe the equal right to health. This fatal conflict has facilitated the booming generic drug industry in India, where the patent regime is loosely enforced. Up until now, however, there is no proliferating generic drug industry to ensure general access to truly affordable anti-cancer medicines in China. Not surprisingly, desperate Chinese patients have begun to seek cheap Indian generic drugs, and a specific brokerage has emerged — Indian generic drug brokerage. Unfortunately, even if these Indian-produced drugs are safe and effective, they are not officially licensed by the China Food and Drug Administration (CFDA) and thus are labeled as “illegal drugs” or “fake drugs” by law. The broker is often accused of selling fake drug, although his/her brokerage may save lives of many dying patients.
In China, over 3000 people suspected of selling fake drugs have been found guilty and put into prison in the last decade, but there was an exception: Cheng Zhong. Zhong is a chronic myelogenous leukemia (CML) patient who has been relying on a drug called Gleevec since his diagnosis in 2002. There is a huge price discrepancy between brand-name Gleevec and its Indian generic version. Under great financial pressure, Zhong started to take Indian Gleevec in 2005, and since then, he has helped thousands of other patients purchase Indian Gleevec across the border. In late 2013, he was caught for using illegal credit cards for drug purchases. He was arrested and then accused of selling fake drugs and the obstruction of credit card management by the local prosecutor. When the media exposed Zhong’s arrest in late 2014, it quickly became a sensation. On January 29, 2015, the prosecutor completely dropped his charge under increasing public pressure. Moreover, the prosecutor published a detailed “Decision Not to Prosecute” and an eloquently written “Opinion to Interpret Laws and Explain Reasons” to explain why he should be released for legal and moral reasons.
Why was Zhong the only one released among over 3000 suspects of brokering illegal drugs? Public opinion did play a key role. But what happened during the public debates that persuaded the prosecutor to change his mind? By analyzing 17 interviews, over 1000 news articles, media footage, and legal documents, I found that it was the moralization of Zhong’s brokerage that facilitated the change. “Illegal drug brokerage” had never been considered morally positive in China before Zhong’s case became a sensation. How did Zhong gain moral legitimacy for his brokerage and overcome its illegality? Based on an in-depth case study on the legal charge against Cheng Zhong, I make the following arguments:
First, the legitimacy of pharmaceutical brokerage has three dimensions: biomedical, moral, and legal. The legitimation of the brokerage proceeds at different rates along these dimensions. The biomedical legitimacy stems from the drug’s safety and effectiveness, whereas the moral legitimacy mainly depends on what the comparative cost of the drug is and how convenient it is to purchase the drug. When its legal legitimacy is questioned, strong moral and biomedical legitimacies can overcome legal illegitimacy. To obtain the three dimensions of legitimacies, brokers have to respectively make three distinctions between 1) illegal real drugs and illegal fake drugs; 2) for-profit brokerage and non-profit brokerage; 3) the broker as the agent of the seller or the representative of the buyer. The first classification was crucial for justifying the biomedical legitimacy of Zhong’s brokerage. The second classification moralized the non-profit pharmaceutical brokerage and strengthened its moral legitimacy on the basis of biomedical legitimacy. Having gained strong biomedical and moral legitimacies, the last classification enabled Zhong to be perceived as the buyer rather than the seller, and recategorized his brokerage as non-sales instead of sales, overcoming the legal illegitimacy that was otherwise difficult to dismantle.
Second, the last classification between the agent of the seller and the representative of the buyer shows that the broker’s structural position in the brokerage is not objective, but subject to interpretations of different moral entrepreneurs. The agency of the broker conditions how his market identity is perceived. Specifically, brokers must establish solid reputations, build a network of trust and properly manage risks when interacting with buyers and sellers to render positive interpretations possible.
Last, moralization of a legally contestable brokerage in a grey market is only possible when the public in civil society has perceived and accepted its moral necessity. Only when institutional environments are unfavorable to legal transactions can the moral necessity of such brokerage be generated and justified. In this case, such adverse institutional environments can be attributed to two circumstances: inefficient regulation of the pharmaceutical market and inadequate public health service. This case study reveals how the moralization of economic behaviors is defined and contested at the macro level: the state-society relation and the broader institutional environment confine and shape the moralization and legitimation process of the brokerage.