OpenForum – a blog by the Health and Human Rights community

By Ellen Shaffer, Joseph Brenner, and Shayna Lewis

Why are some lower-price generics available in the US before they can be sold in Guatemala? Our recent article in Health Affairs analyzes how years of pressure by the pharmaceutical industry and the US government  resulted in intellectual property rules in the Central America Free Trade Agreement (CAFTA-DR) that place desperately needed medicines out of the hands of Guatemalans in violation of the country’s internationally recognized and constitutionally protected right to health.

CAFTA covers the United States and six other countries: the Dominican Republic, Costa Rica, El Salvador, Nicaragua, Honduras, and Guatemala. In 2005, the United States Trade Representative predicted that “[CAFTA] will not affect Guatemala’s ability to take measures necessary to protect public health. . . . Stronger patent and data protection increases the willingness of companies to release innovative drugs in free trade partners’ markets, potentially increasing, rather than decreasing, the availability of medicines.”  However, the Center for Policy Analysis on Trade and Health (CPATH) found that CAFTA in fact increases health risks for patients who need these drugs by increasing the prices of medicines, and CAFTA stifles innovation by undermining Guatemala’s domestic generic drug industry.

CAFTA rules protect the products and processes of brand-name pharmaceutical companies (their intellectual property, or IP) from competition by generic companies — competition that can lower drug prices. These price protections are stronger than existing US law and the World Trade Organization’s (WTO) multilateral Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). The World Health Organization (WHO) and others have expressed concerns that the consequences of these “TRIPS-Plus” rules are particularly serious in lower-income countries, where price is an important factor in access to medicines.

CAFTA also undermines existing mandates to protect public health.  According to the WHO, every country has signed on to at least one treaty that recognizes health as a human right.  Guatemala has signed a number of international conventions advancing public health and explicitly recognizes that health is a human right in its own constitution. However, CAFTA essentially requires Guatemala to continually violate this right, by making it harder for residents to access medications. Read more

Why do global trade agreements promote expensive drugs and cheap cigarettes, and threaten the right to regulate vital human services in the US and abroad? One answer lies in who sets trade policy. Human rights principles demand participation in policy decisions by the people who will be affected. But public health and human rights advocates have largely been excluded from trade deliberations, in contrast to health-related industries. Proposed changes to influential federal trade advisory committees would rebalance the equation.

At a recent hearing by the Trade Subcommittee of the US House Ways and Means Committee, the Center for Policy Analysis on Trade and Health (CPATH) testified that:

The forces that shape our modern world have transformed both the way we conduct trade, and our ability to protect and improve the public’s health: dramatic changes in financial markets, communications technology and transportation affect the prosperity and well-being of individuals and nations. The U.S. trade advisory committee system must keep pace with these developments, and provide for effective and timely communication between trade policy-makers, and public health advocates and professionals.

Pending legislation (HR 2293 / S 1644) would create a dedicated public health advisory committee, and institutionalize public health representation throughout the trade advisory committee system. In 2005, CPATH reported that health- related pharmaceutical, tobacco, alcohol, processed food, and health services and products industries totaled 42 representatives on 25 trade advisory committees. The extent of the representation from the public health community: Zero. Read more