Maryknoll Office for Global Concerns

Representing Maryknoll Fathers & Brothers, Maryknoll Sisters, and Maryknoll Lay Missioners
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Trade: TPP negotiations end

On October 5, the U.S. and 11 other nations finalized negotiations on the biggest trade agreement in history: the Trans-Pacific Partnership (TPP). The following article, published in the November-December 2015 NewsNotes, examines concerns about the potential impact of this trade and investment deal on access to medicines and environmental standards.

Negotiated since before President Obama took office, and in earnest since 2009, the TPP is set to expand investments and laws related to the environment, labor, access to medicines, capital controls, internet privacy, banking, and other sectors. It will encompass about 40 percent of the global economy. 

Negotiated in secret, it will not be released to the public or Congress until late November, once Canadian Prime Minister-designate Justin Trudeau has established his cabinet, and side agreements and translation are finalized. While little is known about the content of the full agreement, Wikileaks released the text of the chapters on the access to medicines and on the environment. Already tobacco and name-brand pharmaceutical industries have expressed anger with the agreement.

The chapter on medicines is better than previous drafts that contained proposals on topics such as patents on medical procedures and on medicines administered during operations. (See the March-April 2015 NewsNotes, “Trade: TPP threatens access to medicines”). But it falls short of the 2007 deal, known as the “May 10 agreement,” brokered by the George W. Bush administration and the U.S. House of Representatives which placed limits on pharmaceutical companies’ monopoly. The May 10 agreement facilitated the continued generic competition, with some restrictions, through which many people depend for access to affordable medicine. From early on in the TPP negotiations it was suspected that the U.S. trade representative was abandoning the May 10 template; this chapter confirms it.

The Obama administration backed down from its insistence on a 12-year wait time on data exclusivity before manufacturers could start producing generic formulas of biologics. Biologics consist of live cell cultures and are used to treat cancer, hepatitis, AIDS, and other diseases. The U.S. agreed to a five-year wait time after pressure from Chile, Peru and, in particular, Australia. A longer wait time could have derailed the negotiations since five years is the standard in Australia. The TPP is the first trade agreement to restrict biologics. Also, according to Public Citizen, “Unlike the May 10 agreement standard, the TPP would require developing countries to quickly transition to the same rules that apply to developed countries, which provide extreme monopoly rights for the pharmaceutical industry and limit access to affordable medicines.”

Another weak area is the chapter on intellectual property. It includes patent extensions, also known as “evergreening.” Companies will be able to change the formulary (e.g. from a capsule to a tablet) and extend the patent life for another 20-year period. For a full analysis of the differences between the May 10 agreement and the leaked chapter, see the Access to Medicines Program memo by Public Citizen. 

According to Inside U.S. Trade, the chapter on environmental standards contains five environmental treaties, only one of which, the Convention on Illegal Trade in Endangered Species of Wild Flora and Fauna (CITES), is enforceable. CITES, which generally requires countries to ban trade in specific endangered species, will be subject to a dispute settlement mechanism. Other likely treaties to be included are the Montreal Protocol (related to protecting the ozone layer) and MARPOL (related to curbing ship pollution). Other environmental protections may also include efforts to curb shark finning, fishing subsidies, and the illegal trade of plants and wildlife but with varying degrees of monitoring and enforcement. Specifics could still change between now and when the text is officially released.

The TPP also contains labor action plans (LAPs) for Vietnam, Malaysia, and Brunei -- due to the climate of fear among workers who want to unionize in Vietnam and Brunei, and for Malaysia’s poor record on labor trafficking. Reports say that the U.S. failed in its attempt to include a LAP for Mexico; officials are still discussing how to address the labor and human rights violations there. 

However, labor action plans do not guarantee that workers’ rights will be respected. A new report from a recent delegation to Colombia by the Coalition of Black Trade Unionists states that during the four years since the enactment of the U.S.-Colombia trade agreement, Colombian workers have endured more than 1,933 threats and acts of violence, including 105 assassinations of union activists and 1,337 death threats.

With concerns about human rights in many countries in this agreement, the Colombia FTA should be seen as a cautionary tale.