CPTech Hosts Post-Election FTA Strategy Session

by Ben Krohmal

Last Thursday at CPTech a packed audience and 8 panelists discussed strategies for addressing the access to medicine implications of bilateral free trade agreements (FTAs) between the U.S. and other countries. Each panelist gave a short presentation:

• Oxfam's strategy to influence FTA agreements includes the production of empirical research on the impact of past agreements. Rohit Malpani of Oxfam America (presentation) presented findings indicating that the U.S.-Jordan FTA, which is frequently touted as a success story, has had a negative impact on access to medicine in Jordan. Rohit also discussed FTA “side letters” that affirm the continued applicability of TRIPS flexibilities, but which only represent an “understanding” that may not be legally binding. Rohit expressed concern that side letters may be regarded by otherwise sympathetic legislators as an adequate substitute for including protections in the language of FTAs themselves.

• Fabiana Jorge of MFJ International (presentation) proposed backing legislation to require that U.S. FTAs honor all intellectual property flexibilities in U.S. law that protect the interests of consumers. She stressed that this legislation would not only increase access to medicines for patients abroad but would also protect Americans from losing current legal protections.

• Gaelle Krikorian of CRESP (presentation) illustrated the trend in FTA’s towards imposing more limitations on access to medicine and described conditions that stand in the way of reversing this trend. Gaelle expressed optimism over growing organized movements in opposition to FTA’s and suggested that those concerned about access to medicine do more to present data on the impact of FTA’s.

• While maintaining that the best policy is to avoid TRIPS+ FTA’s in the first place, Brook Baker of Health GAP (presentation) discussed methods for improving the implementation of bilateral FTA’s already in effect. Brook reviewed considerations supporting more favorable interpretations of FTA texts including language in the Trade Promotion Authority Act (TPA), FTA side letters, and USTR letters to members of Congress. Brook suggested that U.S. FTA partners should waive data exclusivity and linkage requirements to test the authority of side letters and the sincerity of USTR’s reassurances about them.

• Matthew Kavanagh of Global Justice described strategies for mobilizing FTA activism. Matthew suggested orienting a campaign around the likely expiration of TPA and stressed ways in which American interests are affected by access to medicine in other countries.

• Asia Russell of Health GAP discussed global FTA activism and the need to raise awareness about FTA’s and access to medicine among public officials who often fail to realize that FTA’s raise concerns beyond labor and the environment. Asia proposed a “name and shame” list of legislators rated according to their voting record on access to medicines, and suggested pushing for greater transparency and inclusiveness in the FTA negotiating process.

• Rob Weissman of Essential Action argued that ensuring that TPA is not renewed should be the number one priority of groups concerned about FTA’s and access to medicine. Rob agreed with CPTech that health activists should consider compromises on the issue of test data, and to ask USTR and Congress to consider remuneration for test data an alternative to exclusive rights.

• Jamie Love of CPTech said that that intellectual property and pharmaceutical pricing norms are the USTR's primary interest in implementing FTAs, and that some TRIPS+ provisions are likely inevitable. Rather than demanding no TRIPS+ provisions in FTAs, a strategy that has failed in every FTA negotiation so far, Jamie argued that NGO’s should tolerate some comprises; For example, provisions requiring remuneration for test data in lieu of exclusive rights. Jamie argued that this stance would be more acceptable than “no TRIPS+” to a Congress concerned about other countries free riding on U.S. R&D. He suggested that NGOs attack exclusive rights to test data on the grounds that these provisions require the unethical repetition of human clinical trials. CPTech also suggested NGOs target the Korea FTA negotiations, on the grounds that USTR was seeking to outlaw mechanisms in Korea that were needed in the United States to deal with high drug prices (such as positive lists, variable reimbursements, etc). CPTech expressed frustration with the lack of NGO support for new trade paradigms based upon support for R&D rather than IPR and asked groups to be more forward looking and pro-active in thinking about global trade policy. Jamie also called attention to the new WHO Intergovernmental Working Group process, which begins December 4.

Important issues were also raised in the course of discussion following the presentations. Democratic staffers and other discussants said that Democratic control of both houses of Congress offered some opportunities, but would not necessarily result in a large shift in policy. The electoral defeat of two Republican representatives responsible for championing parallel trade legislation is further cause for NGO’s to curb their enthusiasm. "Don't expect much," said one staffer. Considerable discussion was also devoted to the impact of IP/Drug pricing chapters of FTAs on the American state governments. Some suggested that states might offer support for reining in provisions of FTAs that limit the ability of states to negotiate drug prices or choose a partial list of available drugs to subsidize. Other strategic issues were raised and discussed off the record.