[Random-bits] Exchange with Dr. Novotny on WHO AIDS resolution
James Love
love@cptech.org
Fri, 28 Jan 2000 22:30:03 -0500 (EST)
The following is part of an exchange between myself and Dr. Thomas
Novotny of DHHS, on the US government's role in modifying a WHO
resolution on HIV/AIDS this week in Geneva. CPT was critical of the US
government's efforts to remove the section of the resolution that
addressed intellectual property rights. Here is the url for a
communication by Dr. Novotny, a DHHS official who was head of the US
delegation at the Geneva meeting of the WHO Executive Board, and my
response. Jamie
Dr. Novonty's comment was here:
http://lists.essential.org/pipermail/pharm-policy/2000q1/000079.html
My response is here:
http://lists.essential.org/pipermail/pharm-policy/2000q1/000082.html
>From James Love <love@cptech.org>
To: ip-health , TNovotny@osophs.dhhs.gov
Date: Thu, 27, Jan 2000
I appreciate Dr. Thomas Novotny's willingness to provide
information about the US government's positions at the WHO
Executive Board (EB) meetings in Geneva this week, and welcome a
continued dialogue on these matters, so that US policy is truly
transparent.
One can draw different conclusions as to how and why US policy
evolved as it did over the past week in Geneva and at USTR, and I
will not address these issues in detail in this note.
I remain somewhat puzzled over the US government (USG) policy
with respect to the WHO and trade policy, including trade policy
as it relates to intellectual property rights on pharmaceuticals.
I would appreciate a clarification from Dr. Novotny on a few
points. And since Dr. Novotny is concerned about the US
government position being misrepresented, I would encourage him
to respond directly, once again.
Several persons in Geneva have reported that Dr. Novotny
expressed opposition to the WHO playing a role in policy making
on intellectual property right (IPR) issues, and Dr. Novotny
acknowledges that the USG did ask that the EB remove the
following language from the original EB AIDS resolution:
The Executive Board . . . REQUESTS the
Director-General:
7) on their request, to advise governments
on their options under the Agreement on
Trade-Related Aspects of Intellectual Property
Rights (TRIPS) to increase their capacity to
negotiate for more affordable HIV/AIDS-related
drugs;
According to Dr. Novotny, "we [the USG] opposed this because it
went beyond what was agreed to in the Revised Drug Strategy."
I would point out that "going beyond" the RDS isn't bad, from our
point of view, and in any case, it is a stretch to say this is
"going beyond." It looks to me like an effort to implement the
RDS, and to give some plain language support for WHO doing
something useful on IPR issues.
In any event, the language Dr. Novotny did not like was later
replaced, by the EB, which this language:
To cooperate with governments at their request and
other international organizations regarding possible
options under relevant international agreements,
including trade agreements to improve access to
HIV/AIDS-related drugs;
Dr. Novotny says: "We believe this covers WHO responsibilities
and opportunities to work with WTO and WIPO on trade agreements
to improve access to drugs (just as USDHHS now cooperates with
USTR to insure the flexibility of US Trade Policy in health
crises)." Which is true, but it is certainly less specific with
regarding the IPR than was the language it replaced.
I had predicted earlier and Dr. Novotny points out now, language
was added to make reference to the RDS. However, again the words
intellectual property rights don't appear in the AIDS resolution.
The new "sanitized" version of the AIDS resolution doesn't
mention patents or intellectual property rights anywhere anymore,
as if this isn't a matter of controversy the should be addressed
by the WHO.
Dr. Novotny's interventions as to how WIPO and the WTO should be
the lead players on this issue, and his efforts to remove
reference to intellectual property rights from the document, have
given us a new more industry friendly resolution.
Dr. Novotny also takes credit for inserting more of the familiar
"industry partnership" language into the resolution, specifically
on the issue of pricing problems. So, while Vice President Gore
on the campaign trail is concerned about price gouging by the
drug companies, WHO is to told to "reinforce, promote, and
explore partnerships" with the drug companies, to make drugs more
affordable.
Addressing a red herring, Dr. Novotny says "what it [the AIDS
resolution] does not do, and we feel strongly that it must not
do, is refer solely to price as the answer to accessibility." To
drive the point home and make it personal, Dr. Novotny says:
"Again, we worked hard not to let only the price issue
drive accessibility concerns. To limit accessibility
concerns only to price would be terribly mistaken.
Your position on this is far too narrow. Price
reduction is only one tool to improve access. Drugs
could be free and still not be effective without
effective health care systems. In fact, they would
rapidly become ineffective."
Now I don't recall ever saying that accessibility concerns are
limited to issues of price, and I don't know any serious people
who would say this. Perhaps Dr. Novotny will issue a similar
statement lambasting those who advocate investments
infrastructuring saying:
"Again, we worked hard not to let only the
infrastructure issue drive accessibility concerns. To
limit accessibility concerns only to infrastructure
would be terribly mistaken. Your position on this is
far too narrow. Infrastructure investment is only one
tool to improve access. The infrastructure could be
world class, and if drugs were unaffordable, people
would still die."
Of course, it would be a taboo for a public health official to
issue such a statement, because it would undermine funding for
health care infrastructure, which we all agree is important. And
more importantly, it should be obvious to most people that both
issues (and many others) are important.
Of course, intellectual property issues are more controversial
than spending on public health professionals. This is because
the drug companies care about this issue a lot.
Dr. Novotny then says:
Finally, you must now realize the dialogue that
continues between DHHS and USTR is already showing
results. Today, USTR released a paper in which they
stated, "If the Thai government determines that issuing
a compulsory license is required to address its health
care crisis, the United States will raise no objection,
provided the compulsory license is issued in a manner
fully consistent with the WTO Agreement on Trade
Related Aspects of Intellectual Rigths (TRIPS)."
Now, with all due respect to Dr. Novotny, I find it amazing that
he would pick this example, because as far as I know (and I know
a lot on this one), DHHS had nothing to do with the USTR/Thailand
letter. The NGO lobbying on this issue could not have been more
intense, and no one was talking with (or about) DHHS at all. I
wouldn't mind Dr. Novotny claiming credit for future Act UP!,
MSF, CPT campaign efforts, if he plays a role of some type, and
we look forward to the day when he does.
Here are questions for Dr. Novotny:
1. Will the US government support or oppose WHO playing an
active and indeed a pro-active role providing poor countries
with information on IPR disputes as they related to trade
policy and public health?
2. Would you oppose or not oppose the publication of a paper by
the WHO that would call for "fast track" compulsory
licensing of essential medicines in poor countries?
3. Will DHHS intervene with USTR on the dispute over the
Dominican Republic's proposed patent law, which includes
fast track compulsory licensing?
4. Will you support or oppose our request that the USTR provide
a communication to the WTO on the issue of patent exceptions
(under Article 30) for production for export? (Needed for
poor countries to benefit from compulsory licensing.)
PUBLIC CONSULTATION
I would also like to comment on consultation with the public.
When Dr. Novotny met with about a dozen HIV/AIDS, public health
and consumer groups on January 12, to discuss trade policy as it
relates to IPR and pharmacueticals, he never mentioned that the
USG had a problem with the December 22, 1999 draft of the WHO
AIDS resolution. None of the many groups that I work with was
given a heads up that the US would ask that the language on
intellectual property rights be removed. I think it should be
clear that it is possible to consult with interested parties in
advance, and it should be obvious who the interested parties are.
As Dr. Novotny notes, the USG solicited input from pharmaceutical
companies. My advice is pick upon the phone and raise these
issues before, to see how it is going to be received by consumer
interests and public health groups (including ones not funded by
drug companies).
Final comments
We are facing a big crisis in access to medicines, and the
issues will become even more explosive with the next generation
of medicines, which should include products that will be better
for use in developing countries. (For example, from a compliance
point of view, or products that actually cure conditions).
We want our government, the USG, to be strong for the poor.
We want the USG to say things in international forums that make
us proud.
For decades, the USG has been strong for the rich and
powerful. In the WHO, the USG has a well deserved reputation for
being very strong for the drug companies. We want to see a
change. The drug companies have plenty of power already. They
don't need our government to act as their guardian angel or
global apologist.
There are many good points you can make for the drug
companies. You can repeat the IFPMA talking points endlessly,
including the ones that even we would agree with. You can talk
about the virtues of protecting intellectual property, the need
to develop new medicines, and you can explain how it isn't all
their fault. And even after you remove all the exaggeration and
eliminate patently false claims, they will still have some good
points. We recognize this as well as anyone. And by repeating
these points endlessly, you will make them even stronger.
But there are another set of talking points that are not on
the IFPMA web page. The IFPMA doesn't point out that compulsory
licensing is part of the TRIPS, or that it permits governments
rather than companies to determine how much money the poor should
pay for patents. The IFPMA has its favorite parts of the TRIPS,
but it leaves out the parts that give rights to the poor. The
IFPMA doesn't provide accurate information about the costs of
drug development or the role of taxpayer supported research in
the development of essential medicines. The IFPMA doesn't
discuss the high pricing of government funded pharmacuetical
inventions.
The IFPMA doesn't talk about the pricing of fluconazole, and
how this medication can help AIDS patients right now, for a tiny
fraction of the Pfizer price. The IFPMA doesn't talk about how
the industry uses the legal system to block the introduction of
generic drugs, or how costly and difficult it is for poor
countries to litigate against the best law firms in world. The
IFPMA doesn't talk about how it can get patents in developing
countries that would not pass the examination process in the USA.
The IFPMA doesn't talk about the importance of domestic
industries in providing generic competition. The IFPMA doesn't
talk about abuses of the US orphan drug marketing exclusivity,
the abuses of health registration data exclusivity, or the
countless other regulatory barriers they lobby for.
There are lots of things the IFPMA doesn't talk about. So
by using your position to advance the IFPMA agenda, you leave out
other agendas, and other talking points. The world for the poor
is the same world for the rich, but it is perceived differently.
Try to see things from the point of view of the poor. Make the
poor more powerful. This is what we are asking.
Jamie Love <love@cptech.org>
--
James Love, Consumer Project on Technology
P.O. Box 19367 | http://www.cptech.org
Washington, DC 20036 | mailto:love@cptech.org
Voice 1.202.387.8030 | fax 1.202.387.8030