Health community's concerns re TPP11 proposed next steps

25 August 2017

Dear TPP11 Ministers,

Subject: Concerns from the health community regarding proposed next steps in the TPP11

Since US President Trump indicated his intent not to ratify the Trans-Pacific Partnership Agreement (TPP) and it cannot therefore come into force as signed, we understand that the remaining TPP countries (TPP11) have been assessing the options to bring the TPP into force among themselves.

According to news reports, the options you have been discussing seem to be:

1. Only changing the entry into force provisions so that the remaining 11 countries can bring it into force without the US.
2. Freezing controversial provisions pending the US rejoining the TPP, in addition to amending the entry into force provisions.
3. Re-writing certain TPP provisions in light of the US’ absence, in addition to amending the entry into force provisions.

We note with concern that these options appear not to include the health impact assessments that the health community has urged you to undertake before proceeding any further with the TPP.

Whichever of the three current options you choose for the way forward with a TPP11 will have serious consequences for the health of the people in our countries. It is imperative that you make the options public and that before deciding on them you consult stakeholders regarding both the options and the choices within each of them, such as which provisions to freeze or renegotiate.

Given that most of the TPP’s provisions that will impact negatively on health were imposed by the USA and the USA is no longer in the TPP, it makes no sense for you to keep those provisions, particularly without the projected gains from access to US markets. This is especially the case since many TPP provisions do not suit the TPP11. For example, all of your countries, aside from Japan, are net intellectual property (IP) importers, so stronger intellectual property protection does not benefit you – but it would benefit the US in return for no concessions by the USA.

Therefore, if you decide that a free trade agreement (FTA) between the TPP11 countries should occur, we call on you to renegotiate it from first principles with provisions that suit the TPP11 countries, having conducted a comprehensive health impact assessment of the available options.

If you intend to proceed with what appear to be the three current options, it is clear that Option 1 makes no sense.

If Option 2 was chosen, previous expert analyses of the text from a public health perspective show that at a minimum the implementation of the following TPP provisions should be frozen:

- Intellectual property (IP) provisions that go beyond rules established by the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which would roll back public health safeguards and flexibilities enshrined in international law, and put in place far-reaching monopoly protections that will restrict generic competition and keep medicines unaffordable. These strict IP rules will keep medicines prices high and people in TPP11 countries are already struggling to afford medicines at the current prices. These TPP provisions include but are not limited to: secondary patents, patent term extensions, market exclusivity on medicines (including for biologics), patent linkage and stringent enforcement procedures;

- The investment chapter provisions including but not limited to fair and equitable treatment, expropriation and investor-to-state dispute settlement;

- The transparency chapter’s annex on pharmaceutical products and medical devices;

If Option 3 is chosen, at a minimum the above provisions should be renegotiated as well as the general exceptions provision and its application across the whole TPP.

However, as noted above, the only truly acceptable approach to ensure adequate and effective protection of health and access to affordable medicines in all TPP11 countries is to renegotiate the whole TPP. We the undersigned public health, consumer and patient groups from the TPP11 countries urge you to do so.

Yours sincerely,