Global Innovation Policy Center

Groundhog Day has arrived early this year. And from the looks of what appears to be taking shape at the World Health Organization’s (WHO) Executive Board (EB) discussions later this month, winter just doesn’t want to end.

One could have hoped that incoming WHO Director General Dr. Tedros Adhanom Ghebreyesus would breathe new life and new ideas into the same-old debate over intellectual property rights and public health that has gripped the Geneva bureaucracy for decades. I was practically still in Pampers® when activists started railing against the World Trade Organization (WTO) TRIPS Agreement as the end of access to medicines as we know it.

But as 20-plus years have passed, Geneva institutions led by the WHO continue to fail to come to terms with reality. The reality is that, despite what some may tell you, we all want access to medicines. What folks in Geneva have been stuck on year after year after year is how the exploitation of IP rights, in their view, is the silver bullet to ensure access. Mindsets like this create flawed and misguided initiatives, like the 2016 UN High Level Panel on Access to Medicines (UNHLP).

From the outset, the UNHLP’s hand-selected advocate “experts” conducted their operations far outside of member state reach – and mandate. The Panel started from a premise that IP rights and trade law were inconsistent with human rights, a starting point quite a few member states decried as contrary to reality.

But the real tragedy of the UNHLP—which ultimately recommended diminishing the TRIPS Agreement, calling for automatic compulsory licensing and putting pharmaceutical R&D in the hands of UN bureaucrats—is that it represents a missed opportunity to talk about the real barriers to access. The panel’s tunnel vision did a huge disservice to patients and innovators alike. The Panel could have focused on addressing true and concrete culprits hindering access, like inadequate health awareness, dearth of trained medical personnel, taxes and tariffs, dirge of public-private partnerships, frail infrastructure… the list goes on.

Many member states recognized the flaws in the report and said so, quite publicly. After one recent proposal to include the UNHLP report in the World Intellectual Property Organization (WIPO) agenda, Group B countries, which include the likes of United States, European Union, Japan, Australia, and Turkey, said, “we are prepared to discuss the issue of access to medical products in a holistic manner and in accordance with the mandate of the SCP [Standing Committee on Patents]. The HLP report should not constitute the basis for this discussion. We emphasize that any discussion and future work should take account of the wide range of views and factors affecting access to medical products.”

Still, some narrow interests continue to push including the UNHLP’s recommendations in official UN agendas and resolutions. The WHO Secretariat made clear in November—speaking at the “The First World Conference on Access to Medical Products and International Laws for Trade and Health” hosted by the WHO satellite office in New Delhi, India—that they intend to use the UNHLP report as a launching pad for discussions and will attempt to incorporate its implementation at the upcoming WHO Executive Board.

“OK, campers, rise and shine… It’s Groundhog Day!” Just one more blatant attempt to ram through the same-old, dis-credited same-old.

It’s time that member states in the WHO and throughout the UN take back the reins on the process. As the same Group B coalition said in the face of this back-door policymaking, “We reiterate our position that the United Nations High-Level Panel and the resulting report has not been a member state driven process. It has not reflected the opinions of the member states, neither has it been endorsed by the member states.”

It is this member state-driven process that could take us out of the dead of winter. There is so much to look forward to and to hope for in biomedical innovation and technological advancement. With exercises like the UNHLP, we turn our backs on the possibilities for human progress. We hope that this WHO Executive Board, and all UN bodies for that matter, use 2018 to forge a new way ahead in addressing the critical need for better access to medicines. You never know what solutions could emerge.

ABOUT THE AUTHOR
Ashley Kennedy is the senior manager of international IP policy for the U.S. Chamber of Commerce Global Innovation Policy Center.