[Ip-health] U.S. Sign-on Letter to Thai MoPH re threats from Pharma on CL policy

[Sarah Rimmington]

Mr. Chaiya Sasomsab
Minister of Public Health
Tiwanont Rd.
Talad Kwan District
Nontaburi Province 11000
Thailand
Sent via facsimile


Dear Minister Chaiya Sasomsab,

Re: Possible influence of groundless threats from U.S. brand-name
pharmaceutical industry on Thai Compulsory Licensing Policy

According to news accounts in the Thai press, the Thai government is
reviewing a series of compulsory licenses for cancer drugs issued by the
previous government, but not yet implemented. We support the
implementation of these licenses, because they offer the prospect of
making essential medicines available to people who need them but
otherwise will be denied access.

News accounts we have seen report that PhRMA, the U.S. brand-name
pharmaceutical industry trade association, has threatened that, if
Thailand implements the compulsory licenses on cancer drugs, it will
lobby to have Thailand designated a "Priority Foreign Country" under the
Special 301 process.[1] This designation poses the possibility of
accompanying trade sanctions.

Although PhRMA is a powerful lobby, Thailand should not take this recent
threat seriously. It has no basis in U.S. law or political reality.
Thailand should conduct its policy review of the compulsory licenses on
the merits, without regard to PhRMA's empty bluster.

As a matter of U.S. law, the U.S. Trade Representative (USTR) may
designate a country a Priority Foreign Country if it has "the most
onerous and egregious acts, policies, and practices which have the
greatest adverse impact (actual or potential) on the relevant U.S.
products."[2] Since there is little doubt that Thailand's actions are
compatible with its obligations under TRIPS, a point that USTR has never
disputed, USTR could not make such a designation.

As a matter of normal practice around the Special 301 process, it is
important to note that PhRMA routinely asks for more than it has any
hope of achieving. In 2006, for example, PhRMA requested that Canada and
Germany be designated Priority Foreign Countries,[3] a request USTR of
course rejected. So the threat that PhRMA is going to push for Priority
Foreign Country status is much less significant than it may seem.

There are other political realities that the Thai government should take
into account in assessing the seriousness of PhRMA's threat. The
pharmaceutical industry is held in shockingly low regard by the U.S.
public. A recent poll found only 11 percent of the U.S. public believes
the pharmaceutical industry to be "generally honest and trustworthy."[4]

Additionally, each of the three leading U.S. presidential contenders is
much more critical of the industry than the current president. Hillary
Clinton has emphasized her support for the Doha Declaration on the TRIPS
Agreement and Public Health and has pledged to "support trade policies
that protect and expand poor countries=92 right to affordable,
quality-assured generic drugs for important health needs."[5] Barack
Obama likewise has emphasized that he "supports the rights of sovereign
nations to access quality-assured, low-cost genric medication to meet
their pressing public health needs."[6] John McCain has not issued a
policy statement on these matters, but he has been very critical of the
brand-name pharmaceutical industry, recently characterizing the
companies as "the big bad guys."[7]

Thus, regardless of who is the next U.S. president, it is certain that
the next U.S. administration will be much less responsive to
pharmaceutical industry interests than the current administration; and
it is likely the case that the next administration will affirmatively
support efforts in developing countries to speed the introduction of
generic competition to make essential medicines available. U.S. policy
changes are already underway; the New Trade Policy, worked out between
the Congress and the Bush administration provides much more latitude to
U.S. trading partners on access to medicines-related policies than has
previously been the case.[8]

The world has looked to Thailand as a leader in ensuring that essential
medicines are made available to people who need them. The compulsory
licenses issued over the past year have shown that developing countries
have lawful policy tools available at their disposal to overcome patent
barriers to making life-saving medicines accessible. We hope that the
government maintains this policy. But whatever it does should be decided
on the merits, not influenced by the reprehensible but groundless
threats from PhRMA.

Sincerely,

Essential Action, Washington, DC

ACT UP New York, New York, NY

ACT UP Philadelphia, Philadelphia, PA

Africa Action, Washington, DC

African Services Committee, New York, NY

AIDS Treatment News, Philadelphia, PA

American Jewish World Service

American Medical Student Association (AMSA)

CPATH (Center for Policy Analysis on Trade and Health), San Francisco, CA

Global AIDS Alliance, Washington, DC

Global Justice, Columbia University Chapter, New York, NY

Health GAP (Global Access Project)

Housing Works, New York, NY

Initiative for Medicines, Access & Knowledge (I-MAK), New York, NY

Knowledge Ecology International (KEI), Washington DC

Missionary Oblates of the Mary Immaculate, Justice, Peace/Integrity of
Creation Office, Washington, DC

National Association of People with AIDS (NAPWA), Silver Spring, MD

Oxfam America

Progressive Intellectual Property Law Association, Cleveland, Ohio.

Salud y Farmacos, Austin, TX

Stop HIV/AIDS in India Initiative (SHAII), Washington, DC

Student Campaign for Child Survival (SCCS)

Student Global AIDS Campaign (SGAC)

Student Trade Justice Campaign (STJC)

Test Positive Aware Network (TPAN), Chicago, Ill

Transafrica Forum, Washington, DC

Treatment Action Group (TAG), New York NY

Universities Allied for Essential Medicines (UAEM)

Vermont Global Health Coalition (VGHC), Burlington, VT

Wilson Resource Center, Arnolds Park, IA


Individual Endorsements

Professor Brook K. Baker, Northeastern University School of Law, Program
on Human Rights and the Global Economy, Boston, MA

Chris Curry, MD/PhD Candidate, Loyola University, Chicago, IL

Professor Michael H. Davis, Cleveland State University, College of Law,
Cleveland, OH

Professor Sean Flynn, Associate Director, Program on Information Justice
and Intellectual Property, American University, Washington College of
Law, Washington, DC

William (Bill) Haddad, Chairman/CEO, Biogeneric Partners, Inc.

Professor Nuria Homedes, University of Texas School of Public Health,
Austin TX

Tom McCaney, Associate Director, Corporate Social Responsibility,
Sisters of St. Francis of Philadelphia, Philadelphia, PA

Mike Palmedo, Research Coordinator, Program on Information Justice and
Intellectual Property, American University, Washington College of Law,
Washington, DC

Anthony Robbins and Phyllis Freeman, Co-Editors. Journal of Public
Health Policy, Boston, MA

Eric Sawyer, Co-founder of ACT UP New York, Health GAP and Housing
Works, New York, NY.

Professor Susan Sell, Director, Institute for Global and International
Studies, George Washington University, Washington, DC

Anuja Singh, Research Associate, Poverty Action Lab, Columbia
University, New York, NY

Professor Patricia Siplon, Department of Political Science, St.
Michael=92s College, Burlington, Vermont

Dr. Anthony So, Director of the Program on Global Health and Technology
Access, Terry Sanford Institute of Public Policy, Duke University,
Durham, NC

Meredy Throop, Global Campaigns Associate, RESULTS Educational Fund,
Washington, DC

Professor Rudolf V. Van Puymbroeck, Senior Scholar, O'Neill Institute
for National and Global Health Law, Adj Associate Professor, School of
Nursing & Health Studies, Georgetown University, Washington, DC


cc: Mr. Samak Sundaravej, Prime Minister of the Kingdom of Thailand
Mr. Krit Garnjana-Goonchorn, Ambassador of the Kingdom of Thailand to
the United States of America



[1] Phusadee Arunmas, "Thailand Could Face Sanctions After Lobbying by
Drug Firms," Bangkok Post, January 31, 2008.

[2] 19 USC 2242 (b).

[3] PhRMA 2006 Special 301 Submission, available at:
<http://international.phrma.org/archives/phrma_2006_special_301_submission>=
.

[4] The Harris Poll #107, November 1, 2007, "Oil, Pharmaceutical, Health
Insurance, Managed Care, Utilities and Tobacco Top the List of
Industries That Many People Think Need More Regulation," available at:
<http://www.harrisinteractive.com/harris_poll/index.asp?PID=3D825>.

[5] "Clinton Announces Plan to Fight HIV/AIDS At Home And Abroad,"
November 27, 2007, available at <
http://www.hillaryclinton.com/news/release/view/?id=3D4392>.

[6] "Barack Obama: Fighting HIV/AIDS Worldwide," available at:
<http://www.barackobama.com/pdf/AIDSfactsheet.pdf>.

[7] John Distaso, "Romney, McCain Clash on Illegal Immigration,"
Manchester Union-Leader, January 6, 2008, available at: <
http://www.unionleader.com/article.aspx?headline=3DRomney%2C+McCain+clash+o=
n+illegal+immigration&articleId=3D0691e300-20ec-495c-8cbf-f692481f81de>.

[8] Congress and Administration Announce New Trade Policy, U.S. House of
Representatives Way & Means Committee (news release), May 11, 2007,
available at: <http://waysandmeans.house.gov/news.asp>.






--
Sarah Rimmington
Attorney
Essential Action, Access to Medicines Project
Washington, DC
Tel: (202) 387-8030
Cell: (202) 422-2687
www.essentialaction.org/access/