Access to Medicines, TRIPS and

Human Rights

Lisa FormanLupina Assistant Professor, Dalla Lana School of Public Health, Munk School of Global Affairs

Director, Comparative Program in Health and SocietyUniversity of Toronto

Undergraduate Medicine Pre-Clerkship, Global Health Longitudinal Elective, 9 February 2011

Structure

1. Access to medicines and TRIPS

2. Human rights and advocacy for AIDS medicines

3. Implications for global health equity

1. Access to Medicines Gap

2 billion people—1/3 global population—lack regular access

50 percent of populations in poorest Asia and Africa lack access

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Factors Affecting Access

Economic factors disproportionate in poor countries

• Common infectious and non-communicable diseases require costly drugs

Source: WHO (2004)

20 year exclusive patents for pharmaceuticals TRIPS ‘flexibilities’ allow generic manufacture and

import (compulsory licensing, parallel imports) But obstacles to their use

Unilateral trade sanctions Corporate litigation

‘TRIPS-plus’ free trade agreements

WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Impacts on health and development

Pressures persist despite Doha Declaration on Public Health (2001)

TRIPS/TRIPS-plus rules raise drug prices, reduce access to generics, exacerbate drug gap

Threaten realization of rights to health and development

2. International human right to health

Universal Declaration of Human Rights25.1 Everyone has the right to a standard of living adequate for health and well-being including food, clothing, housing and medical care and necessary social services

International Covenant on Economic, Socialand Cultural Rights12.1 State parties recognize everyone’s right to the enjoyment of the highest attainable standard of physical and mental health

Corporate Views Circa 2001

“In the middle of the global AIDS epidemic, it is easy—although misguided—to assume that the cost of drugs used to treat HIV and AIDS is the primary barrier to people in poor countries having greater access to such drugs …The main barrier to access is the lack of adequately resourced healthcare systems”

Richard Sykes, Chairman of Glaxo Smith Kline (2002)

“We are not the Red Cross. We are a for-profit company”Clementine L. Clemente, Executive VP, Pfizer (2001)

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Global compliance with status quo

UN suggested treatment was unwise use of resources

No international funding Limited price concessionsMedicines largely inaccessible in low and

middle income countries

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Issue reframed by activists

Global activists resist status quoNorm entrepeneurs reframe as issue of

rights and moralityBattles using rights-based argument,

research and mass action

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Opportunistic advocacy in South Africa

40 companies sue government to block drug legislation

Companies argue breach of TRIPS Social actors join case bringing human

rights arguments

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Global Public Action

Global demonstrations in thirty cities

International petition with 250 000 signatures

EU, Dutch, German and French resolutions call for withdrawal of case

Mandela criticizes companies

Source: Gideon Mendelhttp://www.artthrob.co.za/02jan/images/mendel01a.jpg

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Growing Negative Opinion

Sydney Morning Herald March 6, 2001

Drug giants fight against cheap relief for AIDS

Los Angeles Times 18 March 2001

South Africa Again Gives the World a Conscience

The Washington Post

Patent Wrongs Editorial, 25 February 2001

TIMEAIDS Drugs Case Puts Our Ideas about Medicine on TrialTony Karon, 5 March 2001

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Norm Cascades at UN

April 2001: Commission on Human Rights, Access to Medication in the Context of Pandemics such as HIV/AIDS

June 2001: Intellectual Property Rights and Human Rights: Report of the Secretary-General

The Impact of TRIPS on Human Rights–Report of High Commissioner

Aug 2001: Intellectual Property Rights and Human Rights Dec 2001: Committee on Economic, Social and Rights,

Human Rights and Intellectual Property July 2002: OHCHR and UNAIDS, Revised Guideline 6 on

Access to Prevention, Treatment, Care and Support

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Norm emerges at WTO

Doha Ministerial Declaration on TRIPS and Public

Health (November 2001):

TRIPS can and should be interpreted and implemented in a manner supportive of WTO Member’s right to protect public health and, in particular, to promote access to medicines for all.

We affirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose

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Major policy shifts

International funding materializes in GFATM and PEPFAR

From 3x5 to goal of universal access adopted by WHO, UNAIDS, UN General Assembly, G8 in 2005

Major price drops

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ARV Access Shoots Up

2020

“Declines in [mortality in]

the past two years are

partly attributable to the

scaling up of antiretroviral

treatment services”

AIDS Deaths Reduce

Source: WHO and UNAIDS, 2007, annotation added

New GSK head, Andrew Witty, will slash prices on all medicines in the poorest countries, give back profits to be spent on hospitals and clinics and share knowledge about potential drugs currently protected by patents

Drug Giant GlaxoSmithKline pledges cheap medicines for world’s poor Head of GSK shocks industry with challenge to other ‘big pharma’ companiesSarah Boseley, 13 February 2009

Witty says he believes drug companies have an obligation to help the poor get treatment. He challenges other pharmaceutical giants to follow his lead.

Efficacy of human rights

Rights-based action ensured coercive reputational damage key to withdrawal

PMA initiated broader acceptance of human rights claim for AIDS medicines in Africa

Global support for AIDS treatment in Africa followed

Implications for global health equity

Activists established causality between trade rules, corporations and inaccessibility

Causality between actors, rules and outcomes created consensus on violation

Apparent moral violation makes human rights frame resonate

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Conclusion

Rights offer ideational tools to reconstruct identities, preferences and behaviour

Rights offer a normative and legal power to shift actors towards more just outcomes

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Acknowledgements

Research funded by

Comparative Program on Health and Society,

University of Toronto

Canadian Institutes of Health Research

For further informationEmail: lisa.forman@utoronto.ca