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Memoranda/Appeal Letters:


Accolades for Malaysian Health Minister's remarks re TPP

Online Publication Date: 15 August 2012
The debate over the Trans-Pacific Partnership Agreement (TPPA) has gained some traction in Malaysia, with more and more voices being heard expressing opposition to the proposed content and manner of negotiations between the currently nine members of the Asia-Pacific trade deal.

Criticisms have long been heard from civil society organisations regarding various aspects and proposals of the TPPA, especially the controversial Intellectual Property (IP) chapter that had been leaked in February last year (http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapter.pdf) and the Investment Chapter containing investor-state dispute settlement (ISDS) provisions leaked in June this year (http://www.citizenstrade.org/ctc/wp-content/uploads/2012/06/tppinvestment.pdf).

But support for such concerns came from unexpected quarters last week when Malaysia’s Health Minister expressed opposition to the TPPA if the deal meant access to affordable medicines would be impaired and if the government’s ability to implement policy in the public interest would be subject to legal suits by foreign investors.

Liow Tiong Lai, who also holds the deputy presidency of a major component party member of the ruling Barisan Nasional coalition, was reported by The Sun Daily on 6 August to have said his ministry disagreed with the IP proposals to the TPPA and described efforts 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”, stressing also that the agreement would be detrimental to the local medical industry. Liow – in reference to the ISDS proposal – also stressed that a foreign company should not be given the power to sue a government due to its policies.

For sure, the health minister was not the first senior official of the Malaysian government to acknowledge the threat posed to access to affordable medical treatment by trade agreements. As the letter to the press by the Penang-based Consumers’ Association of Penang (CAP) below [Item 1] shows, he has been preceded by Malaysia’s most senior public prosecutor. The foreign minister of fellow-TPP government Peru also had stated that his government “will not go one centimetre more” to accede to patent term extensions or linkage.

Be that as it may, it remains to be seen whether – and to what extent – the Malaysian Cabinet led by Prime Minister Najib Abdul Razak would indeed preserve Malaysia’s ability to protect and promote the public health of its citizenry, and the policy space of its government, generally, in the face of immense pressure by developed countries to “rise” to the high standards of the TPPA.

For your reference, we include below [Item 2] the original Sun Daily report containing Minister Liow’s remarks.

Lastly, we include a news report [Item 3] on a public forum held a day earlier before Liowmade his statement that saw the Malaysian AIDS Council, Breast Cancer Welfare Association Malaysia and the Third World Network raise awareness of the dangers contained in proposals to the TPPA to access to affordable medicine. 


[Item 1]

CAP Lauds Health Minister Liow Tiong Lai for Statement on Trans-Pacific Partnership Agreement

13 August

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.1The 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.2If 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

President

1. http://www.citizenstrade.org/ctc/wpcontent/uploads/2011/10/TransPacificTransparency.pdf.

2http://infojustice.org/archives/5814#more-5814%29L.

3http://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.

4 http://gestion.pe/noticia/1309598/medicinas-pueden-subir-precio-propuesta-eeuu

5http://articles.economictimes.indiatimes.com/2011-04-06/news/29388653_1_data-exclusivity-drug- seizure-issue-data-protection


[Item 2]

Malaysia says no to TPP

http://www.thesundaily.my/news/456642

6 August 2012

Azizul Rahman Ismail

KUALA LUMPUR (August 6, 2012): Malaysia is against the Trans-Pacific Partnership Agreement (TPP) which seeks to extend the patent periods of medicines by foreign companies.

Health Minister Datuk Seri Liow Tiong Lai said the agreement, which is being negotiated among eleven countries including the US and Malaysia, would be detrimental to the local medical industry.

"We are against the patent extension. According to the agreement, if a medicine is launched in the US, and then three years later it is launched in Malaysia, the patent would start from when it is launched here and not when it was launched earlier in the US," said Liow. "This is not fair."

He stressed that the agreement would in effect make healthcare less affordable to the public.

Liow said this to reporters after launching Project WATTS (Where Aid Turns To Sustainability), an environmentally focused charity campaign by The Truly Loving Company Sdn Bhd here today.

The TPP is a multilateral free trade agreement intended to further liberalise economies in the Asia-Pacific region.

However, it has reportedly drawn criticisms and protests in part due to the secrecy of the negotiations and a number of controversial clauses in draft agreements that have been leaked to the public.

Parties that have studied the leaks claim that the US is demanding aggressive intellectual property provisions that go beyond what international trade law requires.

A key point of contention by Malaysia is that the existing patents on medicines would be extended for another five to 10 years or more, on top of the current requirement of 20 years.

The patent extension means generic companies would not be able to produce more affordable generic drugs during this period.

Liow also stressed that a company should not be given the power to sue a government due to its state policies.

Under the agreement, investors can claim compensation from governments on the grounds that a new regulation has adversely affected their investments.

The other nine member countries of the Trans-Pacific Strategic Economic Partnership are Brunei, Chile, Singapore, New Zealand, Australia, Peru, Vietnam, Mexico and Canada.

Non-governmental organisations in Malaysia had at a forum on Saturday expressed reservations about the TPP.

They include the Malaysian AIDS Council, Breast Cancer Welfare Association Malaysia and the Third World Network.

Liow added that his ministry is working to make hospitals more energy efficient and thus more environmentally friendly and economical.

"There are 28 general hospitals in Malaysia and their electricity bills alone come up to RM115 million (annually)," he said. "We hope by replacing, among others, light bulbs and air-conditioners in these hospitals and specialist centres with ones that are more energy-efficient, we can see a minimum saving of 10% next year."

He explained that the project will start in the Klang Valley and a saving of 3% is expected to be achieved by the end of the year.


[Item 3]

NGOs concerned over medical issues related to TPP

KUALA LUMPUR (Aug 4, 2012): Malaysian non-governmental organisations (NGOs) have reiterated their concern over medical-related issues which come under the Trans-Pacific Partnership Agreement (TPP).

Malaysia AIDS Council Policy Executive, Fifa Rahman, said the Malaysian government has not engaged with the industry people or the NGOs on the issues.

"We are worry that the person assigned to negotiate on the agreement might not be somebody from the field and in the end, Malaysians will suffer," she said this at a public forum on 'The impact of TPP Agreement on the Accessibility to Affordable Medicine' here today.

The forum panel consisted of officials from Malaysian AIDS Council, Breast Cancer Welfare Association Malaysia and the Third World Network, an independent non-profit international network of organisations [sic].

She said among the possible negative impacts from TPP were expensive patent protection, patent linkage that prevented registration of generic medicines and border measures that could lead to their unjustified seizures.

Fifa said the US, via the TPP, wanted strict provisions that would reduce access to affordable medicines.

"Patented medicines are expensive because the company holding the patent has the exclusive right to make or import them for 20 years," she said.

She also claimed that the US planned to extend the exclusive right period to 25 years and this would stop Malaysians from getting more affordable medicine.

"The US is demanding strict border control measures, which will enable TPP governments to seize generic medicines when imported, exported or in transit so long as they looked confusingly similar to trademarked goods," she said.

Fifa said Malaysia has agreed to sign the agreement because it would bring in more foreign direct investments and provide more jobs to the local. She also alleged that the US also planned to liberalise the tobacco industry to boost its industry.

TPP is a multilateral FTA that aims to further liberalise the economies of the Asia-Pacific region. Among the countries that have joined the negotiations are Chile, New Zealand, Singapore, Brunei, Australia, Vietnam and Peru. – Bernama




 

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