Impacts of trade and investment agreements on health

Several civil society organisations gathered at the launch of the alternative world health report, Global Health Watch 4 at Geneva's Press Club, on 20th of May 2015. The launch was accompanied by a panel discussion on the ‘Impacts of trade and investment agreements on health’ (see the full video here). The event was organised by The Berne Declaration, Health Action International, Medico International, Medicus Mundi International, People’s Health Movement, Safe Observer International, the South Centre, Third World Health Aid, Third World Network, and Wemos.

David Legge, from the People's Health Movement started the event by highlighting the concern that the impacts of trade and investment agreements are missing from the agenda of the WHA and noted that the public event was a contribution towards filling this gap. Introducing the panel discussion at the public event, he said that the discussion was based on and built on parts of the analysis and arguments in the GHW4.

Carlos Correa, from the South Centre, started off with an assessment of 20 years of the Agreement on Trade Related Aspects of Intellectual Property Rights agreement (TRIPS) under the World Trade Organisation (WTO). He stressed that TRIPS was not an agreement, but a pragmatic decision made by developing countries faced with the fact that they would get absolutely nothing out of the WTO negotiations without accepting it. The Agreement on Agriculture was supposed to balance the loss the developing world was going to incur through TRIPS. However the AoA is deeply flawed and unfair itself. AoA is today the key agreement under discussion in the WTO negotiations. At that time, developed countries made promises of innovation, transfer of technology and foreign direct investment in pushing TRIPS on developing countries. But has it happened?

He referred to data questioning the idea that the private sector plays a leading role in innovation and that shows that public institutions actually play a crucial role. He then asked, if pharmaceutical companies are not innovating, what are they doing? Thousands of patents are registered, he said, but only few molecules are discovered pointing to the use of 'evergreening' as a strategy through which companies recycle their property rights on already existing medicines. Further, Correa looked at the case of India to show that TRIPS has not spurred innovation in medicines. He made the argument that there is enough knowledge of the fact that patents are not an effective incentive to spur innovation. He concluded to say that the TRIPS had not failed its promise, as since its' inception it was clear that there was nothing in the agreement for developing countries, but lots to win for pharmaceutical companies based in developed countries.

Patrick Durisch, from the Berne Declaration concentrated his presentation on the Least Developed Countries' (LDC) request for an extension of the waiver that exempts them to implement and enforce patents as well as test data obligations on pharmaceutical products, the so-called "pharmaceuticals exemption" that is part of the Doha declaration on TRIPS and public health (para 7). In February 2015, Bangladesh submitted a duly motivated request for an extension of this waiver until LDCs upgrade from their status. This demand will be officially considered in the upcoming June meeting of the TRIPS Council. Durisch argued that this demand should be unconditionally accepted, on the grounds of WTO's own laws (TRIPS Art 66.1 and further TRIPS Council decisions regarding exemptions), the many and huge challenges LDC still have to overcome in the field of public health, and so as to provide provide predictability of the legal environment for local medicines manufacturers as well as international procurement agencies and donors in ensuring access to affordable medicines in the poorest countries of the world. The "pharmaceuticals exemption" has been widely used by the majority of LDC and has proven to be a simple and one of the most successful provision of the TRIPS flexibilities - the LDC request should thus be unconditionally accepted.

Kajal Bhardwaj, independent lawyer, spoke on mega trade and investment agreements. There is a schizophrenic approach to intellectual property globally. On the one hand, several developing countries are using the policy space within TRIPS to issue compulsory licences, to tighten patent standards to prevent the granting of frivolous patents and to reform their patent laws. On the other, several mega FTAs are being negotiated that include developing countries that will drastically impact public health in developing countries. These mega FTAs include the Trans Pacific Partnership Agreement (TPP), the Trans Atlantic Trade and Investment Partnership (TTIP), the Regional Comprehensive Economic Partnership (RCEP) and the Trade in Services Agreement (TISA). She warned that even bilateral agreements can have global impacts, giving the instance of the EU-India FTA which has aggressive intellectual property demands by the EU and would impact a major producer of generic medicines, often called the pharmacy of the developing world. Through these FTAs, negotiating parties are likely to make commitments demanded by developed countries that reduce their policy space in several areas relating to public health. These include: (1) Intellectual property protections far in excess of those contained in the WTO’s TRIPS Agreement and that undermine the use of TRIPS flexibilities by governments including (a) longer patent terms beyond the 20 years required by TRIPS to compensate for delays in regulatory approval or patent grant; (b) Data exclusivity would delay the registration of generic versions of both patented and off patent medicines; (c) Lowering patentability standards including preventing countries from adopting provisions like those in India and Argentina to restrict evergreening; (d) IP enforcement measures that increase government resources devoted to enforcing private patent rights, hamper judges' ability to balance public health with IP and may create a chilling effect on the supply and distribution channels of generic medicines (2) Impact on pharmaceutical pricing and reimbursement schemes: provisions being negotiated in the TPP in particular and that may also feature in the TTIP are likely to undermine the efforts of governments to negotiate lower prices; (3) Liberalisation of health services: This is likely to be of particular concern in the TISA and TTIP negotiations so much so that there have been increasingly vocal concerns in the UK on the impact of these negotiations on the NHS. The provisions will move away from the largely voluntary and non-reciprocal nature of the GATS framework. A recently leaked document in the TISA negotiations appears to be a bid to promote off-shore purchases of medical services or what may be termed as medical tourism. This is likely to create a two-tier health system in developing countries while also exacerbating healthcare worker shortages in the public sector. Announcement of protections for health services have been viewed sceptically by analysts and critics. (4) Investor-state dispute settlement (ISDS) provisions are also likely to be included in these mega-FTAs that allow investors to sue governments for millions of dollars in private international arbitration over losses to their investments or profits as a result of government actions. The impact in terms of health is seen most clearly in the cases of Phillip Morris v. Uruguay and Australia where pictorial warnings and plain packaging for cigarettes required by the WHO’s Framework Convention on Tobacco Control are being challenged under ISDS. Similarly Eli Lilly is suing Canada for $500 million for court decisions that applied strict patent criteria and revoked their patents on two drugs. There is little transparency in these FTA negotiations and health and public interest groups are left to analyse leaked texts with few formal, truly consultative processes in place for the engagement with governments on these negotiations. Several UN agencies and expert commissions have called for a halt to such negotiations that undermine the ability of government to fulfil the right to health and undermine access to medicines.

In the discussion that followed, audience members raised concerns that even if the TISA were to exclude or have exemptions for the public health sector, most European systems are mixed and therefore the public sector will be impacted through the interaction between the private and public health systems. This will in fact increase the pressure for liberalisation which means an attack on the public health system. The issue of secrecy of trade negotiations and lack of democratic process was also raised. As an example, TISA has gone through 10 rounds of negotiations and there are still no negotiation documents which have been made public.

Some audience members raised concerns over specific provisions in mega-FTAs and debated the need for inclusion of specific TRIPS flexibilities like compulsory licensing (Art 31 of TRIPS) in these negotiations. One member raised concerns over the pressure on India through the US Special 301 process to alter its pro-public health patent law. The importance of civil society mobilisation and engagement with the government was highlighted as crucial to counteract this pressure.

The role of the WHO in assisting developing countries in these negotiations or in implementing TRIPS flexibilities was raised repeatedly by the panel and by audience members. Reference was made to an earlier WHO publication providing simple guidance to the issuing of compulsory licences but copies of this publication are not easily available now. In response a WHO official noted that developing countries must seek such assistance and highlighted some cases where assistance was provided.

The event concluded with the release of the GHW4. Susana Barria, from People's Health Movement, speaking on behalf of the 7 organisations that coordinated the writing of the book, stressed that it integrates rigorous analysis, alternative proposals, and stories of struggles and change to present a compelling case for a radical transformation of the way we approach actions and policies on health.

This meeting was organised in the context of PHM's participation to the WHA68 through its WHO Watch initiative. More about Watching the WHA68 here.