Public Health Groups Sue US Government For Lack Of Consultation

A United States law firm representing public health groups filed suit against the US government on 14 December for a failure to be consulted by industry-heavy government advisory groups on trade policy.

The case was filed in US District Court in San Francisco by environmental law firm Earthjustice against the US government, including the Office of the US Trade Representative (USTR) and the Department of Commerce. A USTR spokesperson said there was no comment on the case by press time.

The case was filed on behalf of Center for Policy Analysis on Trade and Health, California Public Health Association, Chinese Progressive Association, Physicians for Social Responsibility, Earthjustice and the American Nurses Association.

Joe Brenner, director of Center for Policy Analysis on Trade and Health, told Intellectual Property Watch that the groups took issue with the lack of representation on the US Industry Trade Advisory Committees (ITACs) that advise the USTR.

There are 16 ITACs and several of them handle intellectual property rights among other topics. One, ITAC number 15, deals directly with the issue. But only one ITAC has a representative from the public health community, a hospital physician, according to Brenner.

The groups behind the lawsuit are concerned that when trade rules are decided that affect public health issues such as access to medicines, only the industry representatives are consulted. The concern is that industry representatives’ primary objective is not to promote public health but rather their industry.

Brenner said the ITACs should properly and legally have representatives from the public health community. A judge has been appointed for a hearing in the case, but no time has been scheduled yet, he said.

IP issues are among the Earthjustice group’s concerns, Brenner said, particularly provisions in the bilateral deals the United States is negotiating with various countries. He said that these deals are counter-productive for efforts to improve poorer nations’ access to needed medicines.

The group is worried about the impact in the United States, as well as globally, of the apparent lack of balanced consultation. He referred, for instance, to the recent agreement to amend the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for public health purposes.

This agreement made permanent a never-used waiver to the TRIPS agreement under which countries can export cheaper medicines to countries with inadequate or no production facilities (IPW, WTO/TRIPS, 6 December). None of the groups had been consulted before this decision was reached, Brenner said. The amendment has been criticised as difficult to use and possibly blocking access to medicines for the public in developed countries as well.

Brenner said the ITACs meet quarterly but may meet as often as once a month. The issues on which the ITACs are advising USTR include generic medicines, TRIPS and public health issues, and access to medicines, he said.

Brenner predicted the ITACs would meet more frequently in the coming year as the US presidential trade-negotiating authority is up for congressional renewal in 2007 and may not pass. If the authority expires, the US Congress would be able to make changes in bilateral deals negotiated by the administration. This means that new deals likely will be rushed into force next year before the authority’s expiration leads to agreements that are less favourable to industry.

Brenner said they hope there would be an outcome of the case within six months. The Earthjustice groups do not want the ITACs to meet until the case has been resolved, but Brenner said the issue would be settled if public health representatives were appointed in the meantime.