Bush USTR head Bob Portman violates executive order that protects Africa from trade pressures on medicine patents

James Love, CPTech

Yesterday I was discussing with trade officials and public health groups from Southern Africa the most recent round of negotiations involving the United States Trade Representative (USTR). There are lots of distressing things to report, but one very basic issue is this. Rob Portman, the head of the USTR, is violating a May 10, 2000 Presidential Executive Order, which prohibits the USTR from pressuring countries in Sub-Saharan Africa to have rules for intellectual property rights on medicines that exceed the norms set out in the World Trade Organization (WTO).

In other words, we are asking countries in Southern African, which are suffering from an AIDS pandemic of biblical proportions, to go beyond the WTO rules, so that Pfizer, Merck, GSK and other big companies can charge higher prices. This is not only morally repugnant, it is illegal.

Background

On May 10, 2000, then President Bill Clinton signed Executive Order 13155. The key language in the executive order was this:

Section 1. Policy. (a) In administering sections 301-310 of the Trade Act of 1974, the United States shall not seek, through negotiation or otherwise, the revocation or revision of any intellectual property law or policy of a beneficiary sub-Saharan African country, as determined by the President, that regulates HIV/AIDS pharmaceuticals or medical technologies if the law or policy of the country:
(1) promotes access to HIV/AIDS pharmaceuticals or medical technologies for affected populations in that country; and
(2) provides adequate and effective intellectual property protection consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) referred to in section 101(d)(15) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(15)).

This executive order did not come about by accident. It was the result of long and determined campaign by activists from the US public health and AIDS community, who were seeking to overturn years of aggressive efforts by United States trade officials to hike intellectual property rules for medicines in Africa and elsewhere, such as this six year campaign against the newly democratic South Africa government.

When Bush first became President, Joe Papovich, then the head of intellectual property policy for the USTR, and his boss, then USTR head Bob Zoellick, persuaded the White House to keep the Clinton Executive Order, much to the surprise and chagrin on big pharma executives like Pfizer head Hank McKinnell. McKinnell and other top pharma CEO's subsequently began meeting with Karl Rove, seeking to override Zoellick on issues concerning trade and medicines. By 2002, Zoellick was more or less bypassed on policy making on medicine and trade. But Africa still benefited from the 2000 Executive Order. But now it appears that Portman is openly ignoring it, telling African trade officials they can't get a new trade agreement with the USA unless they agree to the tougher terms of bilateral IP agreements between the US and other non-African countries.

I asked USTR about this issue. USTR agrees that the 2000 Executive Order is still on the books. They can't explain how USTR can ask for tougher (than the WTO TRIPS Agreement) IP rules in Africa, and comply with the Order.

This is an important issue. I don't see how pushing for higher prices on patented medicines in Africa is consistent with US values, and I don't see how it improves our standing in the world community. It will also lead to needless suffering and death, in a region that already suffers a lot.

UPDATE

USTR staff claim they are not violating Executive Order 13155. They also say they have not done a legal analysis of what the Executive Order means in terms of the actual provisions in intellectual property agreements that countries in sub-Saharan Africa can be asked sign. USTR does acknowledge that some US trade officals have told African trade negotiators to look at the text of other US FTA agreements to see what to expect (all of which contain measures which violate the Executive Order), but they questioned the accuracy or even honesty of the reports from African negotiators as to the nature of those conversations. On March 28, 2006, the New York Times wrote an editoral titled: "Free Trade and AIDS Drugs." This editorial, which like others is behind the NYTime's "Select" wall, concluded with these words:

The trade representative's negotiator says that the subject has not yet come to the table, and that the United States, well aware that southern Africa faces unique health challenges, intends to respect the executive order. These are welcome words, and it is imperative that Washington be held to that promise.