US-Thai Free Trade Negotiations Threaten Access to Medicines; Activists Demand End to TRIPS-plus IP provisions
International NGO Solidarity Statement
Jan. 9, 2006. Thai AIDS activists and their international allies are seeking suspension of scheduled trade talks that threaten to undermine Thailand's lawful ability to produce, import/export, and market low-cost generic versions of life-saving medicines. Today, in Chiang Mai, the United States and Thailand are scheduled to start the Sixth Round of negotiations on a proposed Free Trade Agreement and for the first time are holding discussions on a U.S. proposal to dramatically increase intellectual property protections for pharmaceutical products. Simultaneously, ten thousand Thai activists, half of them living with HIV, are protesting the scheduled talks and trying to shut them down, promising to sleep overnight outside the meeting venue for three nights and to block entry to the negotiations.
The U.S. government has consistently refused to release the draft text of its FTA proposals and simultaneously extracts promises of secrecy from its negotiating partners. This shroud of secrecy limits democratic review and civil society participation in the negotiation process. In particular, it denies voice to the tens of thousands of Thais living with HIV/AIDS who need increased access to affordable second-generation antiretroviral and opportunistic infection medicines that are currently patent-protected and cost prohibitive.
Instead of allowing Thailand to use all existing flexibilities for accessing cheaper medicines under international law as confirmed by the 2001 WTO Doha Declaration on the TRIPS Agreement and Public Health and by the UN Commission on Human Rights, the U.S., based on past practice, will be seeking to heighten patent and data protection in the following ways:
- Extending patent terms beyond 20 years to compensate for administrative delays and easing standards of patentability on new formulations and uses, thereby extending the period of monopoly pricing;
- Restricting rights to parallel import cheaper medicines by codifying patent-holders rights to contractually limit export/import of previously sold products;
- Potentially restricting the grounds for issuing compulsory licenses;
- Linking marketing approval to the absence of claimed patent rights and imposing 5-10 year data-exclusivity provisions (preventing reliance on proprietors clinical trial data to grant marketing approval for generic products), thereby potentially restricting compulsory licensing rights;
- Imposing criminal penalties on companies that intentionally or inadvertently violate patents.
The U.S. attempts to down-play the significance of these hard-text treaty terms with an ambiguous and under-inclusive 'side-letter' reaffirming trade partners rights to prioritize access to medicines. Such side-letters make no binding commitments, and the USTR has expressly declined to confirm the obligatory effect of the letters when asked to do so in response to Congressional inquiries.
Consistent with human rights norms requiring access to essential medicines and in response to Thai activist demands, Thailand has initiated a program of universal access to government-subsidized antiretroviral drugs that now reaches 70,000 of 170,000 Thai people living with HIV/AIDS. However, the future costs of expanded treatment with newer patented medicines will be prohibitive if the U.S. succeeds in its objectives to ratchet-up intellectual property protections.
Therefore, we join our Thai colleagues at Chiang Mai and throughout Thailand demanding that the U.S. suspend negotiations on intellectual property rights and that it drop all intellectual property provisions affecting access to pharmaceutical products, specifically all TRIPS-plus terms, in the Thai FTA and in other FTAs as well. In addition, we demand that the U.S. publish its proposed text for the entire FTA and that the Thai people have had a chance to hold public consultations on the proposed agreement.