[Ip-health] Comment on Thailand and USTR Special 301 Report: Outrageous, Cynical, Shameful - Again

[robert weissman]

USTR Action Against Thailand: Outrageous, Cynical, Shameful - Again

For Immediate Release, April 25, 2008
For More Information, contact Robert Weissman, 202-387-8030

Statement of Robert Weissman, director, Essential Action, in response to
USTR's placement of Thailand on the "priority watch" list in its annual
Special 301 Report:

USTR has today issued its 2008 Special 301 report. It is available here:

http://www.ustr.gov/Document_Library/Press_Releases/2008/April/USTR_Issues_=
2008_Special_301_Report.html

The report again includes Thailand on the Priority Watch list, again
citing Thailand's compulsory licenses as a reason for appearing on the
list. The relevant text of the report says:

"While the United States recognizes the importance of Thailand=92s public
health challenges, Thailand=92s recent policies and actions regarding the
compulsory licensing of patented medicines have contributed to
continuing concerns regarding the adequate and effective protection of
IPR in Thailand. The United States is awaiting further information on
the new Thai government=92s approach in this area and hopes to work
constructively on this and other IPR issues in order to strengthen
Thailand=92s IPR regime."

Last year, when USTR placed Thailand on the Priority Watch list, we
labeled the action "outrageous, cynical, shameful." Unfortunately,
nothing has changed.

Thailand has led the way in using TRIPS flexibilities -- reaffirmed in
the Doha Declaration on the TRIPS Agreement and Public Health, a
declaration to which the United States is a party -- to lower the prices
of medicines and make important drugs available to people without regard
to income. Instead of congratulating Thailand, the United States
denounces and saber-rattles.

How is Thailand -- and the rest of the world -- supposed to interpret
the statement that "Thailand=92s recent policies and actions regarding the
compulsory licensing of patented medicines have contributed to
continuing concerns regarding the adequate and effective protection of
IPR in Thailand"? Which policies and actions? And, most importantly,
whose continuing concerns?

There are two ways to interpret the statement: The first option is that
it is gibberish. USTR knows it has no reasonable complaint against
Thailand, but that Big Pharma wants it to say something. So, USTR did,
though in such an imprecise way that it is impossible to pinpoint what
the agency is concerned about or what it wants. It is possible that this
is USTR's intended purpose.

But the words will be understood via a second, more straightforward
interpretation: USTR will always complain about lawful compulsory
licenses, at least for middle-income countries and non-HIV/AIDS drugs.
Proper procedures may be followed, special efforts may be made to reach
accommodations with patent holders, public health benefits may be
apparent -- but USTR will complain about compulsory licenses anyway.

The honest and right thing for USTR to do would have been to remove
Thailand from the Priority Watch list, and remove any negative reference
to the Thai compulsory licenses from the Special 301 report.

The good news is that U.S. policy on access to medicines issues is
changing for the better, and will continue to do so. This is evident in
the improved access-to-medicines terms that the House Ways & Means
Committee negotiated in recent trade agreement texts, and in the
positive signals from all of the major presidential contenders.

Hopefully, 2008 will be the last time a country is cited negatively in
the Special 301 report for a lawful compulsory license aimed at
improving public health.

--

Note: This comment is an immediate response to the Special 301 report,
focused on Thailand. There is much else worrisome in the report,
including the insistence that countries should adopt pharmaceutical test
data exclusivity rules.