[Ip-health] op-ed on NAFTA and access to medicines (Ottawa Citizen, Aug 19, 2017)

Richard Elliott RElliott at aidslaw.ca
Tue Aug 22 14:46:39 PDT 2017

Hi all
FYI, sharing opinion piece we got published in the Ottawa Citizen this past weekend.

Warning - a new NAFTA could prevent vital medicines getting to millions worldwide
Nicholas Caivano & Richard Elliott

Published on: August 19, 2017 | Last Updated: August 19, 2017 8:00 AM EDT

[In this April 21, 2008 file photo, national flags of the United States, Canada, and Mexico fly in the breeze in New Orleans. Negotiations start Wednesday for an update to the quarter-century-old North American Free Trade Agreement. THE CANADIAN PRESS/AP/Judi Bottoni ORG XMIT: CPT112 APRIL 21, 2008 FILE PHOTO Judi Bottoni, THE ASSOCIATED PRESS]

With talks now underway on renegotiating the North American Free Trade Agreement (NAFTA), U.S. President Donald Trump's wishlist for an overhauled treaty is under a microscope. So far, little attention has been paid to how the deal could threaten access to medicines in all three NAFTA countries, and pose a broader threat to hundreds of millions more people beyond.

Trump's starting bid for what the U.S. seeks to achieve pays lip service to respecting a 2001 declaration by World Trade Organization (WTO) countries on "flexibility" in international trade rules on intellectual property to promote access to medicines. A closer look at the list reveals the real agenda: to advance Big Pharma's demand for more restrictive intellectual property rules that boost their profits at the expense of people needing medicines.

The U.S. objectives state clearly Trump's desire to make Canadian and Mexican intellectual property policy "similar to that found in U.S. law." Translation: Trump favours measures to protect patented pharmaceutical companies' immense profits, whether by delaying the entry of lower-cost generics into the market or weakening regulations or programs that contain prices. Yet more hurdles to the universal national pharmacare that is overdue in Canada.

The original NAFTA normalized a set of restrictive rules on patents and other intellectual property privileges. It also paved the way for such rules in subsequent trade agreements - including the Trans-Pacific Partnership (TPP) - that are aimed at limiting the options available to countries in their efforts to make medicines available and affordable, including for the world's poorest.

Depending on what it says, a "modernized" NAFTA could make things even worse, not just for those in North America, but globally, if the new deal serves as a template for future deals.

For example, using what flexibilities remain under current WTO rules, some generic pharmaceutical manufacturers are producing low-cost medicines, providing life-saving access to drugs for some of the world's most marginalized people. Rapidly scaling up life-saving HIV treatment for millions of people in developing countries has only been possible by using low-priced, quality-assured generics, particularly from Indian manufacturers.

However, legal frameworks such as India's, that have facilitated such production over the last 15 years, would be under threat if the more restrictive intellectual property rules being pushed in trade agreement negotiations were to take hold. With the TPP's future uncertain, Big Pharma and the U.S. are now using the NAFTA renegotiations as a new forum. Rest assured that any further restrictions secured in a renegotiated NAFTA will be advanced as a "minimum standard" that countries are pressured to include in other trade agreements. We've seen this tactic time and again; it's the history of NAFTA itself.

The threat to access to medicines, and other public goods, exists on another front. Currently, NAFTA has a widely denounced "investor-state dispute settlement"clause. This clause allows lawsuits against governments for interfering with companies' profits - or potentially even just their expectations of profits - by regulating in the public interest.

After losing patent claims twice in Canadian courts, multi-national pharmaceutical powerhouse Eli Lilly tried to use the NAFTA system to force changes to Canadian patent laws. Fortunately, it lost in its attempt to stretch the current wording of NAFTA to cover intellectual property issues. Now, given what we've seen with the TPP, Big Pharma and numerous other corporate lobby groups have just released an open letter calling on the U.S. to expand the rules on investor-state disputes in a renegotiated NAFTA.

Foreign Affairs Minister Chrystia Freeland has said Canada seeks "modernization" of NAFTA. This must include safeguarding access to medicines.

First, we need a transparent, independent assessment of how any updated deal will affect public health and human rights, including access to medicines, in Canada and globally.

Second, countries need greater flexibility in their intellectual property policy to ensure affordable medicines reach the people who need them - which means a firm rejection of the push for even greater monopoly protections for Big Pharma.

Third, Canada should agree to ditch NAFTA's damaging investor-state dispute settlement provisions that allow corporations to sue governments that aim to do the right thing by regulating in the public interest, including promoting public health and access to medicines. At the very least, Canada (and Mexico) should refuse to expand it further, including rejecting calls to apply it to intellectual property rules.

Prime Minister Trudeau has professed his concern for global health, including access to medicines, for the hundreds of millions who lack it. It's time to match words with action by rejecting the demands from the U.S. for more Big Pharma profits at the expense of patients' health and lives. Some things just shouldn't be up for negotiation.

Nicholas Caivano is policy analyst and Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network (www.aidslaw.ca).

Richard Elliott
Executive Director | Directeur général
Canadian HIV/AIDS Legal Network | Réseau juridique canadien VIH/sida
600 - 1240 Bay St., Toronto, Ontario, Canada M5R 2A7
+1 416 595 1666 (ext. 229)

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