Public Health and Consumer Groups respond to 2009 USTR Special 301 Report
Essential Action, AU Program on Information Justice and IP, Knowledge Ecology International, Forum on Democracy and Trade, Health GAP and Oxfam America
FOR IMMEDIATE RELEASE | April 30, 2009
Contact Info for each organization below with each quotation
Today, the US Trade Representative (USTR) released its annual “Special 301 Report,” identifying countries it views as denying “adequate and effective protection of intellectual property rights.” The full report is available at www.ustr.gov.
Despite committing to the World Trade Organization’s TRIPS flexibilities meant to encourage access to low-cost generic medicines, the United States regularly singles out countries for pro-health policies that are TRIPS compliant in the Special 301 Report. The report is based on comments submitted to USTR, most of which come from businesses holding copyrights and patents. The pharmaceutical industry’s trade association submits detailed comments each year, which USTR draws on extensively. To view all the comments received by USTR for the 2009 report, see www.regulations.gov
Public health and consumer groups had hoped the Obama administration would turn a new page and recognize the right of countries to take TRIPS-compliant measures that increase access to medicines, and thus are disappointed that this year’s report mirrors not only Big Pharma’s demands, but the policies previously pursued by the Bush administration.
Following are the initial comments from several representatives of U.S. civil society groups to the 2009 Special 301 Report:
Listed alphabetically:
The strong arm of U.S. corporate power, especially its pharmaceutical industry, still holds sway over U.S. trade policy. The Annual Special 301 Report is a cut and paste job from industry’s submissions and is virtually indistinguishable from those issued for eight years by the Bush Administration. Poor people in developing countries desperately need access to life-saving and life-enhancing medicines and countries need intellectual property rules that prioritize public health not just obscene corporate profits. The new Obama administration is not yet showing to new IP/trade face to our global neighbors.
Brook Baker, Northeastern University, Health GAP, 617-259-0760 | b.baker@neu.edu
This is really George Bush’s last 301 report. It lacks every element of the kind of transparent and fair government process that the Obama administration promotes. The findings in the report are based on submissions of data by industries that no serious academic would believe to be true. There is no opportunity for countries or civil society to respond to industry accusations, challenge methodologies, appeal determinations or have an open hearing before the report is issued. This is not a process that is designed to promote truth seeking. Its main effect is to antagonize our trading partners. The Special 301 program unilaterally threatens and sanctions countries for policies that do not violate international trade rules. The program is widely thought by international trade experts as directly contrary to the norms of the World Trade Organization requiring multilateral dispute resolution. If a country challenged its listing in the WTO, I believe the program would likely be struck down, opening the U.S. for retaliation by trading partners. Governments and civil society organizations should pressing the Obama Administration and Congress to do away with this program.
Sean Flynn, Professor of Law, Program on Information Justice and Intellectual Property American University, Washington College of Law, 202-274-4157 | sflynn@wcl.american.edu
The report shows key trade officials are still led by corporate lobbies. There is scant evidence of new or independent analysis on innovation or consumer protection issues. A report like this is evidence that Ambassador Kirk needs to give more face time to people not working as lobbyists for publishers, pharmaceutical and medical companies.
James Love, Director, Knowledge Ecology International, 202.361.3040 | james.love@keionline.org.
The US Trade Representative’s office has issued a Special 301 report that still champions the narrow commercial interests of the multinational pharmaceutical industry while punishing developing countries seeking to protect public health. Although the US Trade Representative claims in the report to support developing countries that wish to take measures to ensure access to affordable medicines, it clearly fails to follow its own advice by singling out countries for taking actions that are succeeding in improving the health and well-being of poor people. Developing countries face daunting public health challenges, and the current flu outbreak is yet another reminder why governments must have the right to make public health concerns a top priority. It’s time the US fully lives up to its commitments assumed eight years ago through the Doha Declaration on TRIPS and Public Health and support, not hinder, the right of developing countries to use public health safeguards and flexibilities to ensure access to affordable medicines.
Rohit Malpani, Senior Policy Advisor, Oxfam America, For Press inquiries, please contact Laura Rusu, 202 496 1169 | lrusu@oxfamamerica.org
This year’s Special 301 Report also persists in scolding countries for alleged barriers to innovation, such as the use of reference pricing, that have nothing to do with intellectual property. Good thing that the Special 301 report doesn’t target U.S. jurisdictions, since the vast majority of states also use reference pricing as part of their efforts to manage spiraling drug costs.
Peter Riggs, Director, Forum on Democracy & Trade, 360-789-2520 | riggs@forumdemocracy.net
The 2009 Special 301 Report that USTR released today is a deceptive unilateral trade tool that largely serves the interests U.S. corporations that have the resources to lobby Washington. It is shameful and disappointing that the first report of the new Obama administration cites developing countries for amending or using their laws in ways that are legal under the WTO rules. Ironically, the USA would do quite poorly if subjected to the same standards applied to others. The US has broader national exceptions, and issue more compulsory licenses than any developing country.
Judit Rius, Staff Attorney, Knowledge Ecology International, 202-332-2670 | judit.rius@keionline.org
The USTR report refers vaguely to Guatemala’s lax enforcement of rules on unspecified counterfeit products. But the Pharmaceutical Research Manufacturers Association’s Comments (Feb. 2009, p. 212) clearly target Guatemala’s tax breaks for donor organizations that contribute desperately needed medicines at affordable prices. PhRMA also criticizes Guatemala’s slow enforcement of linkage, a TRIPS-Plus rule included in CAFTA that Congress and the Bush Administration agreed to moderate in the future, as it is harmful for low-income countries. We look forward to the new Administration clarifying that it will proceed on reducing IP barriers to affordable medicines.
Ellen R. Shaffer PhD MPH Co-Director, Center for Policy Analysis on Trade and Health (CPATH), 415-680-4603 | ershaffer@cpath.org
We can only hope that today’s report is a product of a USTR-on-autopilot. There’s nothing to distinguish this report from the familiar anti-health reports of the Bush administration. That USTR continues to harp on Thailand’s TRIPS-compliant issuance of compulsory licenses – an effort which has lowered price in the public sector and expanded access to lifesaving medicines – is a deeply embarrassing action by an administration that says it aims to repair America’s reputation in the world.
Robert Weissman, Director, Essential Action, 202-387-8030 | rob@essentialaction.org