Posted by Ben Beachy at 8:21pm
The TPP’s proposed intellectual property chapter includes even greater monopoly protections for pharmaceutical companies than seen in past U.S. “free trade” agreements (FTAs). The extension of such anti-competitive protections, while safeguarding profits for large pharmaceutical firms, threatens to block generics and elevate the cost of medicines in TPP countries like Vietnam.
One such protection that has been hotly debated within the TPP context is “data exclusivity.” The brainchild of the pharmaceutical industry, data exclusivity goes even beyond patent protections by barring generic drug manufacturers from accessing the clinical test data required to market cheaper, generic forms of a drug, whether patented or not, for years. Should we be concerned about the implications of such corporate protections for the cost of medicines? Apparently not. According to the op-ed, such concerns are the handiwork of “scaremongering NGOs.” (I don’t recall that adjective making it into our mission statement.) The author, Philip Stevens, argues that data exclusivity for chemical drugs is currently granted in the U.S. for five years, and “the chances that the TPP will lengthen the exclusivity period are very low.”
But the point is not whether the access-curtailing U.S. data exclusivity periods will be “lengthened,” but whether they will be exported to ten other TPP negotiating countries. Also, the author neglects to mention the U.S.’s new and significantly longer monopoly protection period of 12 years for biologic drugs—used to treat cancer, heart disease, and other deathly illnesses. Pharmaceutical companies and their cheerleaders have been calling for this extreme, prolonged generics prohibition to be spread to TPP members, diminishing access to life-saving treatments from Vietnam to Peru.
Indeed, this corporate push was recently emblazoned on the very same opinion pages of the Wall Street Journal, with former U.S. Trade Representative Charlene Barshefsky calling for the U.S. to use the TPP to export its 12-year exclusion of generics for biologic drugs. Our own Peter Maybarduk retorted with a letter to the editor, arguing, “It would be cruel to impose this rule on the many people suffering from treatable conditions in the Asia-Pacific region who cannot afford the extraordinary monopoly prices…”
While the TPP’s intellectual property chapter could export the U.S.’s monopoly protections for pharmaceutical corporations, the leaked investment chapterwould allow those corporations to directly challenge governments for access-to-medicines policies that they allege as violating the monopoly protections. TheWall Street Journal op-ed comes on the heels of Eli Lilly’s announcement, detailed in our post last week, that the pharmaceutical corporation plans to use NAFTA to directly challenge the Canadian government before a NAFTA-created, three-person tribunal over the Canadian courts’ decision to invalidate Eli Lilly’s patent. The courts made the decision after determining that Eli Lilly’s drug had failed to deliver on promised utility. In response, Eli Lilly is demanding $100 million in taxpayer compensation.
As we mentioned, but as the op-ed failed to, the TPP goes even beyond NAFTA in empowering pharmaceutical corporations to launch such attacks on access-to-medicines policies. NAFTA implies that a corporation could claim “intellectual property” as an “investment” protected by the deal, allowing it to demand compensation for government policies alleged to be a violation of that “investment.” But the TPP makes that possibility explicit by naming “intellectual property rights” under the definition of “investment,” raising the prospect of an increase in Eli-Lilly-like challenges to access-to-medicines policies under the TPP.
After wiping aside or completely omitting these concerns that the TPP poses a sincere health hazard, the op-ed author framed the TPP as the continuation of a “free trade” legacy that has played a nearly unparalleled role in improving global health standards. (That’s not my near-hyperbole, but his: “there have been few more powerful forces for improving health in the history of humanity.”) He reasons that trade means growth in income, which means growth in living standards:
Prior to the 1950s, the majority of the world’s population lived a precarious life as subsistence farmers. Since then, the opening of global markets, first by the General Agreement on Tariffs and Trade and then by the WTO, has transformed the health prospects of millions by raising incomes. That, and not IP flexibility, made decent food, sanitation, and new medical technologies available.
That’s how the Asian countries involved in the TPP—Malaysia, Singapore, Brunei and Vietnam—have witnessed startling improvements in the health prospects of their citizens since the middle of the last century. Singapore signed GATT in 1973, and by 1993 there were no import duties for any product except alcohol, tobacco and automobiles, a situation that largely persists today. Singapore now surpasses many European countries for life expectancy, with Malaysia not far behind.
Oh my. Where to begin? How about Singapore. The author’s poster child for the trade-equals-growth-equals-health argument turns out to be a pretty counterproductive candidate. Stevens, the author, cites 1973 as the year Singapore began opening the door to unfettered trade, with the door cast mostly wide open by 1993. But the years of highest growth for Singapore happened while the door was still closed. In the decade before 1973, Singapore’s average inflation-adjusted GDP growth rate per person was 9%. In the decade following its GATT accession, that average growth rate fell to 6%. In the decade following the declared 1993 free trade finish line, Singapore’s annual per capita growth dropped further to just 3%. One could be pardoned for expecting Stevens to conclude from his Singapore example that nations looking to boost incomes and health standards should reject across-the-board free trade, not embrace it.
Singapore’s experience is not unique. A study by Mark Weisbrot and Rebecca Ray over at the Center for Economic and Policy Research found that from 1960-1980, a period characterized more by import-substitution than by free trade, Latin America as a whole experienced a cumulative growth rate of 92%. But during the free trade era of 1980-2000, the region’s cumulative growth plummeted to a measly 6% over the entire twenty-year period.
Such findings, like the Singapore data, do not necessarily mean that free trade causes lower growth. Other factors could of course be at play in this history. But the facts show that the opposite certainly cannot be claimed. Free trade cannot be categorically credited for higher growth, much less recommended as an unmitigated prescription for better health. Op-eds making such a sweeping claim would seem to be driven more by ideology than by evidence. Those struggling to pay for medicine in Vietnam could probably do without more ideology.