A Prescription for Coherence?: UN Secretary-General to release report of High-Level Panel on Access to Medicines addressing tension between health and intellectual property rules

By Richard Elliott, Executive Director, Canadian HIV/AIDS Legal Network

September 13, 2016

Later this week, UN Secretary-General Ban Ki-moon is expected to release at the UN in New York the much-anticipated, and already controversial, report of his High-Level Panel on Access to Medicines.

The Secretary-General appointed his High-Level Panel on Access to Medicines in November 2015, in response to a recommendation by the Global Commission on HIV and the Law, which previously had issued a damning critique of the ongoing global inequality in access to medicines. The Commission laid the blame, in part, on international and domestic rules on patents and other aspects of intellectual property — including more restrictive rules being negotiated in successive international trade agreements — that create and maintain barriers to more affordable medicines. These barriers are fuelling an ongoing public health and human rights crisis particularly in low- and middle-income countries, and increasingly posing unsustainable burdens on high-income countries.

The Panel was asked to recommend remedies for the “incoherence” between human rights and public health on the one hand, and on the other hand, rules on intellectual property (allowing and extending drug companies’ patent and data monopolies). The Panel is co-chaired by the former presidents of Switzerland and Botswana and consists of numerous eminent persons. It is advised by an Expert Advisory Group. (I’ve been privileged to serve on the advisory group and to prepare one of the background papers on human rights, intellectual property and trade for the Panel, and also served as an advisor to the Global Commission on HIV and the Law.)

The High-Level Panel’s report comes mere days before two key international events for global health, one of them hosted by Canada.

The first is the upcoming Global Fund replenishment conference starting this Friday, September 16, in Montréal.  The Global Fund is the largest, most important multilateral funding mechanism for global health and a key element of the global response to the three epidemics — the programs it has funded have already saved 20 million lives. Canada has announced it will increase its financial contribution to the Global Fund for the next three years by 20%.

However, overall funding for preventing and treating HIV, TB and malaria appears to be stalling, falling far short of the resources needed to achieve the ambitious prevention and treatment targets necessary to end these epidemics by 2030 — one of the global goals adopted at the UN General Assembly last year. And the impact of whatever resources are available — e.g., how many people can be treated and infections averted — will depend in part on whether those funds can be used to purchase lower-cost, generic medicines or must, because of patent rules and other barriers, be spent on expensive, brand-name drugs. 

The second event takes place next week, when countries convene in New York for an important UN High-Level Dialogue on anti-microbial resistance (Wednesday, September 21).  Without the development of new medicines, we will increasingly see treatment failure in the face of drug-resistant infections. It is unclear that the current global intellectual property regime is “fit for purpose” to stimulate the pharmaceutical innovation needed to address this threat; and perversely, in some ways, overly-restrictive patent and data monopolies of the current system contribute to the development of drug-resistant pathogens. Again, the Panel’s recommendations on pharmaceutical intellectual property rules will be highly relevant.

In addition, the High-Level Panel’s report also comes as the backlash grows over trade agreements such as the Trans-Pacific Partnership — which would mandate rules on pharmaceutical patents that go even further beyond those already agreed at the World Trade Organization, further expanding and lengthening pharmaceutical companies’ monopolies on medicines, while also restricting governments’ ability to regulate or otherwise act in the public interest (e.g., to prevent excessive drug pricing).

No country has yet ratified the TPP – and it is, quite rightly, emerging as a controversial issue in the US election, which has pushed the hardest on behalf of the pharmaceutical industries’ demands.  In Canada, Prime Minister Trudeau and international trade minister Chrystia Freeland say they are “consulting Canadians” before making a decision, and a Parliamentary committee has held some hearings in recent months — but the clear signals are that the government intends to ratify the agreement if it can figure out how to “sell” it to the public.

The international humanitarian organization Médecins Sans Frontières has described the TPP as the “worst trade pact ever for access to medicines and biomedical research and development.” Canadian civil society organizations have called on PM Trudeau and Minister Freeland to reject the TPP as long as it includes harmful provisions such as those that further extend pharmaceutical companies’ monopolies, and that further entrench dangerous and anti-democratic “investor-state” rules, which allow corporations to sue governments in special tribunals if they interfere with companies’ expected profits by regulating to protect the public interest.

It is expected that the UN Secretary-General’s High-Level Panel will make a number of recommendations addressing the concerns raised by the ongoing proliferation of such trade agreements with increasingly stringent rules benefiting pharmaceutical companies, at the expense of public health and human rights.

The final report will be available on the Panel’s website once released by the UN Secretary-General, and the Legal Network will be releasing a statement commenting on the Panel’s recommendations once these have been made public.

The actions recommended by the High-Level Panel, and whether and how governments act on those recommendations, will be central in shaping the future of global health — in determining whether needed medicines are developed in future, whether they are effective in treating diseases, and who can afford them, in both low- and high-income countries. In short, these are matters of life and death for millions.