US disassociates itself from cooperative access to medicines in unanimous World Health resolution

May 20, 2020: The World Health Assembly unanimously adopted the draft resolution on COVID-19 which endorsed the central role of the World Health Organisation in the global response to the pandemic, called for the greatest cooperation between member states in providing resources and sharing knowledge about treatments and vaccines for the new coronavirus, and established two investigations – one into the origins of the coronavirus and how it was transmitted to humans, and one into the response to the pandemic.

With both China and the USA voting in favour of the resolution, the WHA has cooled down the war of words between the two states which inhibits the urgent actions required to cope with the pandemic.

However, the USA formally disassociated itself from operative paragraphs 4, 8.2 and 9.8: These paragraphs call for “the universal, timely and equitable access to and fair distribution of all quality, safe, efficacious and affordable essential health technologies and products,” and for the for “voluntary pooling and licensing of patents to facilitate timely, equitable and affordable access to them, consistent with the provisions of relevant international treaties including the provisions of the TRIPS agreement and the flexibilities as confirmed by the Doha Declaration on the TRIPS Agreement and Public Health.”

The US commented that it disassociated itself from these paragraphs

"because the language in these operative paragraphs does not adequately capture all of the carefully negotiated, and balanced, language in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and the Doha Declaration of 2001 and instead presents an unbalanced and incomplete picture of that language at a time where all actors need to come together to produce vaccines and other critical health products. The United States recognizes the importance of access to affordable, safe, high-quality, and effective health products and the critical role that intellectual property plays in incentivizing the development of new and improved health products. However, as currently drafted, paragraphs 4, 8.2 and 9.8 send the wrong message to innovators who will be essential to the solutions the whole world needs.

“We are concerned that a misinterpretation of international trade obligations in non WTO multilateral fora may negatively affect countries’ abilities to incentivize new drug development and expand access to medicines. We would also like to clarify our understanding of the reference in 8.2 to ‘existing mechanisms for voluntary pooling … of patents.’ The United States interprets this reference as limited to voluntary mechanisms existing before the COVID-19 pandemic, not new or proposed ‘patent pooling’ mechanisms created in response to the pandemic. It is critical that any such voluntary mechanisms as applied to COVID-19 related technologies be narrowly tailored in scope and duration to the medical needs of the current crisis, and that the World Intellectual Property Organization (WIPO), as the UN agency with technical expertise on intellectual property issues, play an appropriate role in their operation and evolution …

"Going forward, given the need for innovation incentives in the development of new health products, the U.S. Government encourages member states to engage with innovators to find mutually-acceptable solutions that achieve increased access to affordable, safe, effective, and high-quality COVID-19 health products. By taking an unbalanced and incomplete approach to the issue of access to medicines and TRIPS, this resolution misses an opportunity to galvanize the world, beyond bureaucracy and UN bodies, toward the critical goal of accelerating research, development, distribution and access to affordable, safe, quality and effective COVID-19-related products. We remain committed to working with all partners toward that goal”.

So, despite the careful wording of the WHA resolution, the US is objecting to the concept of new medicines not being under patent, and to states issuing compulsory licences for the import, manufacture or sale of medicines to treat or prevent COVID-19. This is the voice of the US pharmaceutical industry saying that it will only provide such medicines under patent – the incentive is profit, not affordable access to medicines for all.

On March 30, 2020, Forbes reported a US$456 million government contract with Johnson & Johnson to develop a vaccine, and a US$150 million contract to develop a treatment for COVID-19.

On March 16, 2020, The Guardian reported an attempt by the Trump administration to get exclusive access to coronavirus vaccine project being developed in Germany.