Background

The U.S. Senate is preparing to debate legislation that would give President Bush "Trade Promotion Authority"(TPA), H.R. 3005. The bill assures that trade agreements are not amended by the Congress; instead, they are given a single up-or-down vote under expedited procedures. This Administration wants this authority to complete several major negotiations, including a "Free Trade Area of the Americas"and a far-sweeping round of negotiations in the 140-member World Trade Organization. TPA likely has a filibuster-proof majority in the Senate.

Intellectual Property

One of the most important issues our trade negotiators face is intellectual property (IP) rights. While IP rights and patents are important for many U.S. industries, some patents give drug companies monopolistic powers that sometimes keep prices for life-saving medicines artificially inflated. The TPA bill directs the US Trade Representative to take such a strong position on IP rights that it may severely constrain or prevent impoverished countries from gaining access to affordable medicines for AIDS, malaria and other diseases.

Doha Declaration

The World Trade Organization announced the opening of a new round of broad trade negotiations in November, 2001 at a Ministerial meeting in Doha. At the meeting, the WTO published (withUS support) a "Declaration on the TRIPS Agreement and Public Health." The Declaration essentially stated that countries had flexibility under TRIPS -- the WTO's international intellectual property agreement-- to take appropriate actions when faced with a public health emergency, including compulsory licensing and delaying the issuance of some 20-year patents to pharmaceutical companies until 2016.

The Doha Declaration was written largely in response to the efforts of developed countries to deny less-developed countries this flexibility. For example, as recently as Fall 2000, the US challenged (in the WTO's dispute settlement system) Brazil's right to authorize compulsory licensing in response to public health crises. The Bush Administration withdrew the challenge in April 2001 after a firestorm of criticism from international health advocates.

The TPA Problem

The TPA bill as currently written undermines the Doha Declaration in 3 ways:

1. First, as part of the "negotiating objectives"for the US Trade Representative, it calls for "accelerated compliance"with TRIPS, which would no longer allow impoverished countries to wait until 2016 before issuing 20-year patents to drug companies;
2. Second, it advocates the adoption of current US standards of IP rules -- the most stringent in the world -- by nations that do not have the ability to implement them safely, effectively, or affordably; and
3. Third, it calls for the elimination of price controls and other tools that many poor countries need to keep medicines affordable.

The TPA bill mentions priorities for labor rights and environmental rights, but makes no reference whatsoever to public health. If the bill is passed as written and USTR negotiates strict international standards for IP accordingly, the ability of Congress to address IP and public health issues in the future is critically undermined, because trade agreements have priority over domestic US law.

Proposed Response

We are promoting an additional "negotiating objective"that gives industries the strong IP protections they need and deserve while preserving the flexibility countries need to address public health emergencies. This added negotiating objective specifically references support of the Doha Declaration --- the language that received the support of the Bush Administration at the Doha meeting -- as part of the instructions to the US Trade Representative.