TPP Trade Deal Will Be Devastating for Access to Affordable Medicines

[Jim Lane]

21. I disagree with your criticisms of Medecins Sans Frontieres.

In thread after thread, you pooh-pooh any leaked text as a mere proposal, with the implication that the final agreement may well be vastly different. As best I can tell, peering through the veil of secrecy surrounding the deal, that's not accurate.

These negotiations have been going on for more than four years. Leaks about drug patents and other chapters are not of any one side's negotiating proposals; they're of the current draft text. True, it's still subject to amendment -- but, as a practical matter, a draft that's emerged from four years of work is probably pretty close to what the final version will be.

You write:

First, I don't think this is "tin-foil-hattery combined with Obama Derangement Syndrome", so much as a fundamental (almost paranoid) distrust of government and business by many ... and that distrust is being fed by the nature of trade negotiations (i.e., done behind closed doors) and, possibly, being exploited by interests.

Should I take comfort that you wrote "almost paranoid" instead of straight-out "paranoid"? As the saying goes, even a paranoid has some real enemies. (Variously attributed to Henry Kissinger or Golda Meir) The distrust that you correctly identify isn't based on some psychological disorder, or on the work of unspecified nefarious "interests" who are exploiting the public. It's based on the secrecy, as you note. It's based on the lopsided nature of the secrecy, where Big Pharma is in on the negotiations while the doors are closed to MSF and similar organizations. It's based, perhaps above all, on experience with similar agreements, such as NAFTA.

The TPP will include provisions for investor-state dispute settlement. (I'll put money on that assertion if you want to continue to pooh-pooh the leaks. Loser buys the winner a one-year Star membership?) Similar provisions in NAFTA have been used by big business to attack environmental protections and other laws that might impede their pursuit of profit. Here's one example, from the Wikipedia article about NAFTA:

In 1996, the gasoline additive MMT was brought into Canada by Ethyl Corporation, an American company. At the time, the Canadian federal government banned the importation of the additive. The American company brought a claim under NAFTA Chapter 11 seeking US$201 million,[32] from the Canadian government and the Canadian provinces under the Agreement on Internal Trade ("AIT&quot . The American company argued that their additive had not been conclusively linked to any health dangers, and that the prohibition was damaging to their company. Following a finding that the ban was a violation of the AIT,[33] the Canadian federal government repealed the ban and settled with the American company for US$13 million.[34] Studies by Health and Welfare Canada (now Health Canada) on the health effects of MMT in fuel found no significant health effects associated with exposure to these exhaust emissions. Other Canadian researchers and the U.S. Environmental Protection Agency disagree with Health Canada, and cite studies that include possible nerve damage.[35]

We can safely predict that TPP, if adopted, would provide corporations with additional such opportunities to challenge democratically enacted laws. That's a bad idea regardless of which side is right on the particular issue of the health effects of MMT.

You conclude by arguing that MSF should have made specific constructive suggestions for changes. Even in the limited scope of the press release that MSF put out in response to the leak, we can see some specifics, in the form of provisions that should be removed from the agreement:

If signed in its current form, the TPP—a far-reaching trade agreement involving the US and 11 other Pacific-Rim countries—would force all countries to grant additional drug patents, extending monopolies on medicines beyond 20 years, a practice called patent "evergreening."
The agreement would also impose an unprecedented extended period of exclusivity for clinical data required to prove the safety and efficacy of drugs and vaccines that are “biologic” products, extending monopolies in TPP countries, which will delay lower-cost versions of these medicines from entering the market.

The MSF video accompanying its press release adds the point that TPP would require that surgical methods be made patentable.

Unfortunately, it's doubtful that MSF can be very "impactful" on the negotiations to which it wasn't invited. As George Carlin said in another context, there's a club and you ain't in it. The correct strategy for MSF and other excluded organizations (like the Electronic Frontier Foundation, the Sierra Club, and the AFL-CIO) is to publicize the issues in their particular fields of expertise, and to begin to mobilize opposition even without having the final agreement in hand. If Congress approves fast-track authority, there won't be enough time for that work if it's not even begun until the final proposal is released.