CAP Lauds Health Minister Liow Tiong Lai for Statement on TPPA
Online Publication Date: 15 August 2012
Letter to the Editor
The Consumers’ Association of Penang (CAP) lauds the Government of
Malaysia and the Health Minister, Datuk Seri Liow Tiong Lai, for their
concern over the potential impact of the Trans-Pacific Partnership
Agreement (TPPA) on public health in Malaysia.
According to The Sun Daily (6 August 2012), Liow categorically
asserted Malaysia’s disagreement with intellectual property (IP)
proposals to the TPPA negotiations between Malaysia and eight other
countries in the Asia-Pacific to extend patent protection for
pharmaceuticals as being unfair for reducing the ability of Malaysians
to obtain affordable medical treatment.
Liow said "We are against the patent extension” and stressed that the
agreement would in effect make healthcare less affordable to the public
and be detrimental to the local medical industry. Liow also stressed
that a foreign company should not be given the power to sue a government
due to its policies.
The TPPA, also known as the Trans-Pacific Strategic Economic
Partnership Agreement, is a USA-led free trade agreement (FTA) that aims
to further liberalise the economies and create a free trade area of the
Asia-Pacific. In addition to the USA and Malaysia, the other countries
involved in the negotiations are Australia, Brunei, Chile, New Zealand,
Peru, Singapore and Vietnam.
Besides the patent term extensions, there are a number of other
proposals in the TPPA IP chapter, which if accepted, would also make
medicines more expensive for longer in Malaysia.
Malaysia already provides strong IP protection that gives adequate
protection to pharmaceutical companies. Therefore there is no need for
Malaysia to agree to even stronger IP provisions in the TPPA, especially
since they have been shown to increase medicine prices in other
countries which introduced them.
Another proposal for the TPPA that would adversely affect access to
affordable medical treatment is the ‘Transparency and Procedural
Fairness for Healthcare Technologies’ Annex.1 The provisions proposed
will restrict medicine pricing programmes and require that appeals be
allowed to determine whether medicine ‘reimbursement rates’
“appropriately recognize the value” of pharmaceutical patents.
In Australia, such provisions appear to have led to costlier
medicines.2 If accepted, such proposals would undermine the Malaysian
government’s ability to set affordable medicine prices. The USA proposal
is contrary to practices in the USA itself, and raises the bar higher
than current medicine pricing programmes in the country.
Other Ministers have taken a similar position to Liow’s. For example
when asked by the Committee’s Chair, how the Malaysian Government can
ensure that trade agreements do not affect provision of generic
medicines, particularly for the treatment of HIV/AIDS, Malaysian
Attorney-General Tan Sri Abdul Gani told the United Nations Committee on
the Rights of the Child that free trade agreements are TRIPS-plus and
Malaysia would not negotiate on this issue. He also stated that "generic
drugs should not be restricted in any manner," as generics are cheaper
than patented medicines.3
Peru’s Minister of Foreign Commerce and Tourism José Luis Silva
publically said that in the TPPA negotiations ‘We will not go one
centimetre more’4 than the current Peru-US free trade agreement (which
does not have patent term extensions or linkage).
In free trade agreement negotiations with the European Union where
similar intellectual property provisions were being negotiated, India’s
Minister of Commerce and Industry flatly refused to agree to data
exclusivity saying that "There is no question that we will accept data
exclusivity in any (free trade) agreement with any country".5
In addition to the above, Liow had also remarked on the controversial
investor-state dispute system (ISDS) proposed for the TPPA. The ISDS
allows foreign investors to sue governments directly at an international
tribunal for enacting or implementing laws, regulations, policies or
programmes including for public health, but which an investor sees as
having infringed upon an investment or expected profits. As Liow
stressed in his statement, “a company should not be given the power to
sue a government due to its policies”.
ISDS cases in the past have successfully challenged public interest
measures including for health, such as banning dangerous chemicals and
preventing toxic waste from contaminating the water supply. Tobacco
companies are also currently using ISDS to sue governments for billions
of dollars for their tobacco control measures.
By rejecting ISDS in the TPPA, it will greatly help to preserve
Malaysia’s ability to implement tobacco control and other health
policies, as Australia has done in its rejection of ISDS in the TPPA.
We welcome Liow’s statements over the matter of patent extension and
ISDS. We hope the Minister can maintain his strong stand in rejecting
provisions that may adversely impact the health of Malaysians.
As the above discussion makes clear, there are many other proposals
submitted for the TPPA negotiations that need careful – and public, we
must add – scrutiny for their impact – in the near and longer future –
on the welfare, wellbeing and interests of the Malaysian public.
Any and all proposals that adversely affect public health, access to
medicines and the space available for our regulators to act in the
interests of the public should be opposed and rejected.
S.M. MOHAMED IDRIS
3 http://www.3dthree.org/pdf_3D/3Dnote6_Malaysia2007.pdf.This was
during negotiations of the never-completed Malaysia-US free trade
agreement in which presumably similar strong intellectual property
provisions were being discussed.
5 http://articles.economictimes.indiatimes.com/2011-04-06/news/29388653_1_data-exclusivity-drug- seizure-issue-data-protection