Access To Medicines Project

USTR Action Against Thailand: Outrageous, Cynical, Shameful – Again

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For Immediate Release, April 25, 2008
For More Information, contact Robert Weissman, 202-387-8030

Statement of Robert Weissman, director, Essential Action, in response to USTR’s placement of Thailand on the “priority watch” list in its annual Special 301 Report:

USTR has today issued its 2008 Special 301 report. It is available here.

The report again includes Thailand on the Priority Watch list, again citing Thailand’s compulsory licenses as a reason for appearing on the list. The relevant text of the report says:

While the United States recognizes the importance of Thailand’s public health challenges, Thailand’s recent policies and actions regarding the compulsory licensing of patented medicines have contributed to continuing concerns regarding the adequate and effective protection of IPR in Thailand. The United States is awaiting further information on the new Thai government’s approach in this area and hopes to work constructively on this and other IPR issues in order to strengthen Thailand’s IPR regime.

Last year, when USTR placed Thailand on the Priority Watch list, we labeled the action “outrageous, cynical, shameful.” Unfortunately, nothing has changed.
Thailand has led the way in using the TRIPS flexibilities — reaffirmed in the Doha Declaration on the TRIPS Agreement and Public Health, a declaration to which the United States is a party — to lower the prices of medicines and make important drugs available to people without regard to income. Instead of congratulating Thailand, the United States denounces and saber-rattles.

How is Thailand — and the rest of the world — supposed to interpret the statement that “Thailand’s recent policies and actions regarding the compulsory licensing of patented medicines have contributed to continuing concerns regarding the adequate and effective protection of IPR in Thailand”? Which policies and actions? And, most importantly, whose continuing concerns?

There are two ways to interpret the statement: The first option is that it is gibberish. USTR knows it has no reasonable complaint against Thailand, but that Big Pharma wants it to say something. So, USTR did, though in such an imprecise way that it is impossible to pinpoint what the agency is concerned about or what it wants. It is possible that this is USTR’s intended purpose.

But the words will be understood via a second, more straightforward interpretation: USTR will complain about lawful compulsory licenses, at least for middle-income countries and non-HIV/AIDS drugs. Proper procedures may be followed, special efforts may be made to reach accommodations with patent holders, public health benefits may be apparent — but USTR will complain about compulsory licenses anyway.

The honest and right thing for USTR to do would have been to remove Thailand from the Priority Watch list, and remove any negative reference to the Thai compulsory licenses from the Special 301 report.

The good news is that U.S. policy on access to medicines issues is changing for the better, and will continue to do so. This is evident in the improved access-to-medicines terms that the House Ways & Means Committee negotiated in recent trade agreement texts, and in the positive signals from all of the major presidential contenders.

Hopefully, 2008 will be the last time a country is cited negatively in the Special 301 report for a lawful compulsory license aimed at improving public health.

Note: This comment is an immediate response to the Special 301 report, focused on Thailand. There is much else worrisome in the report, including the insistence that countries should adopt pharmaceutical test data exclusivity rules.

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April 25th, 2008 at 10:03 am

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