As it currently stands, the TPP text pushes beyond the rules of the WTO TRIPS Agreement with the effect of further limiting the room for manoeuvre that countries need in order to protect the public good, including by trying to achieve non-discriminatory, affordable access to medicines. Instead of accepting the TPP provisions in their current form, Canada should demonstrate international leadership and honour its repeated commitments to global health, including access to medicines
By Richard Elliott
Executive Director Canadian HIV/AIDS Legal Network, Toronto
Canada’s New Government Should Reject the TPP Agreement in its Current Form
On 5 November 2015, the text of the Trans-Pacific Partnership (TPP) Agreement was finally made public. Running to more than 6000 pages, it raises a host of grave concerns about its impact on everything from environmental protection to labour and other human rights, from internet privacy to food safety… and much more, including access to affordable medicines.
Before the final text was released, alarm bells were already ringing: for example, Médecins Sans Frontières has called the TPP “the most harmful trade pact ever for access to medicines” – and not just for those in the negotiating countries, but for many more, since the TPP is being billed as a model for future trade agreements across the globe.
What’s the Threat?
As outlined by the Legal Network and several other NGOs in an open letter to the newly-elected Liberal government, various aspects of the TPP are cause for concern when it comes to access to medicines:
- New intellectual property (IP) rules on patents, as well as rules on “data exclusivity” over information submitted to get marketing approval of drugs, would be even more restrictive than what already exist at the World Trade Organization (WTO). These would further impede and delay the competition from generic drugs that is key to pushing down prices and therefore making medicines available to many more people. In addition, new, harsher provisions on enforcement of private IP rights would be available to big pharma to try to undermine competition – including injunctions, higher damages for patent infringement, and various border measures that could interfere with transit of legitimate generic medicines based on mere suspicion of infringing intellectual property rights claimed by big pharma.
- So-called “transparency” provisions would create more opportunities for drug companies to challenge governments’ decisions about reimbursing medicines under public health insurance programs, while also allowing more direct marketing to consumers by drug companies. In the Canadian context, this would create an additional hurdle to overcome in eventually creating a truly national, equitable pharmacare programme, which has been a long-standing and major gap in the country’s system of public health insurance.
- Finally, the TPP would expand so-called “investor-state dispute settlement” rules to cover IP rights. This would allow drug companies to sue governments if they interfere with companies “expectations of profit” through public interest laws or regulations on things such as patents, the use of data submitted in getting marketing approval for drugs, and setting prices of pharmaceuticals, including the prices at which drugs are covered under public health insurance plans. Canada is already facing the world’s first such suit by the pharmaceutical company Eli Lilly, which is attempting to push into new territory the interpretation of similar provisions in the North America Free Trade Agreement (NAFTA) – in which the company seeks to force changes to well-settled principles of patent law in Canada after two courts ruled two of the company’s patents were invalid because the product in question did not live up to the scope of the patent claimed. This is an unprecedented proceeding in seeking to expand investor-state dispute settlement provisions to IP claims; now the text of the TPP would give an explicit green light to such mischief, in a wider array of countries, with yet more of a chilling effect on the ability or willingness of governments to regulate in the public interest.
Time for Action
But there’s still time to head off this disaster for public health and human rights.
The TPP has to be ratified and implemented by the 12 negotiating countries before it takes effect.This makes it all the more critical that governments hear from the public, whose rights, health and lives will be affected by the TPP’s provisions.
This includes the new government in Ottawa. While PM Trudeau and the Liberal Party have stated support for the TPP in principle during the election, the party also declared that “it must keep its word and defend Canadian interests during these negotiations.”
Those interests clearly include access to affordable medicines. Canadians already pay some of the highest drug prices in the world and spending on pharmaceutical products is one of the three largest elements of our overall health care spending, year after year. No wonder, then, that Canadians have repeatedly expressed their opposition to longer patents for drug companies.
“Canadian interests” also include a commitment to ending the tragic global gap in access to medicines, particularly burdensome for developing countries facing multiple major public health challenges – including, but not limited to, HIV. This commitment was reflected in the widespread support – including from 80% of Canadians polled – for fixing the flaws in Canada’s Access to Medicines Regime (CAMR). Such fixes were, and are, needed so that the regime could deliver on Parliament’s previous unanimous pledge (a decade ago!) to support developing countries in getting more affordable, generic medicines.
Sadly, a bill to fix CAMR was narrowly defeated by the previous government in the last Parliament – and while the new government has not yet specifically committed to supporting those reforms again in the new Parliament (as it did previously), it did declare during the election that “there is no question that we need to get more low-cost medicines and other essential medical supplies and equipment to people in developing countries.”
Canada’s new government should not only fix the existing flawed CAMR, but also reject the TPP in its current form. The agreement’s provisions stand in direct contradiction to the goals of improving access to medicines, for Canadians and for people in developing countries. Canada should:
- commit to a full public consultation on the TPP, including an independent assessment of its impact on human rights (including access to medicines), among other concerns;
- refuse to ratify the TPP as long as it contains any “TRIPS-plus” provisions that exceed the already-restrictive rules on intellectual property that have been adopted at the WTO; and
- reject any deal that extends the discredited, damaging “investor-state dispute settlement” system to cover intellectual property or other laws and regulations affecting pharmaceuticals, as this would enable pharmaceutical companies to impede regulation of this sector in the public interest.
TPP: Up With Corporate Profits Outweighing Equity in Health!
Impact Of The TPP On The Pharma Industry http://www.ip-watch.org/2015/12/02/impact-of-the-tpp-on-the-pharma-industry/
TPP Strengthens Controversial IP Arbitration http://www.ip-watch.org/2015/11/30/tpp-strengthens-controversial-ip-arbitration/
US ITC notice for public comment, Jan 13, 2016 hearing, and Commission report on the TransPacific Partnership Agreement (TPP) http://www.keionline.org/node/2371