Improving regulatory capacity to manage risks associated with trade agreements

Estimating the unintended impact of the North American free trade agreement on U.S. public health

The North American Free Trade Agreement (NAFTA) was introduced in 1994 between Canada, Mexico, and the United States to encourage trilateral trade. In 2008, an unrestricted reciprocal sugar trade agreement, was implemented between Mexico and the United States as part of NAFTA, which led to a significant decrease in the United States' sugar price. However, critics argue that free trade agreements that reduce trade barriers on products such as sugar threaten public health. This study uses the synthetic control method to investigate the causal impact of the unrestricted sugar trade agreement on sugar consumption and diabetes prevalence in the United States. First, we show that sugar consumption in the United States increased by an average of 16% annually after the agreement was signed, corresponding to 5240g per capita. Second, we show that the crude prevalence of diabetes increased by an average of 1% annually in the United States after the agreement was signed, with an increase of 1% and 2% for men and women, respectively. This unintended consequence of NAFTA has had an estimated economic cost of $324.37 million annually.

Public health advocacy strategies to influence policy agendas: lessons from a narrative review of success in trade policy

BACKGROUND

Despite accumulating evidence of the implications of trade policy for public health, trade and health sectors continue to operate largely in silos. Numerous barriers to advancing health have been identified, including the dominance of a neoliberal paradigm, powerful private sector interests, and constraints associated with policymaking processes. Scholars and policy actors have recommended improved governance practices for trade policy, including: greater transparency and accountability; intersectoral collaboration; the use of health impact assessments; South-South networking; and mechanisms for civil society participation. These policy prescriptions have been generated from specific cases, such as the World Trade Organization's Doha Declaration on TRIPS and Public Health or specific instances of trade-related policymaking at the national level. There has not yet been a comprehensive analysis of what enables the elevation of health goals on trade policy agendas. This narrative review seeks to address this gap by collating and analysing known studies across different levels of policymaking and different health issues.

RESULTS

Sixty-five studies met the inclusion criteria and were included in the review. Health issues that received attention on trade policy agendas included: access to medicines, food nutrition and food security, tobacco control, non-communicable diseases, access to knowledge, and asbestos harm. This has occurred in instances of domestic and regional policymaking, and in bilateral, regional and global trade negotiations, as well as in trade disputes and challenges. We identified four enabling conditions for elevation of health in trade-related policymaking: favourable media attention; leadership by trade and health ministers; public support; and political party support. We identified six strategies successfully used by advocates to influence these conditions: using and translating multiple forms of evidence, acting in coalitions, strategic framing, leveraging exogenous factors, legal strategy, and shifting forums.

CONCLUSION

The analysis demonstrates that while technical evidence is important, political strategy is necessary for elevating health on trade agendas. The analysis provides lessons that can be explored in the wider commercial determinants of health where economic and health interests often collide.

International investment liberalization, transnational corporations and NCD prevention policy non-decisions: a realist review on the political economy of tobacco, alcohol and ultra-processed food

BACKGROUND

Public health concerns relating to international investment liberalization have centred on the potential for investor-state dispute settlement (ISDS)-related regulatory chill. However, the broader political and economic dimensions that shape the relationship between the international investment regime and non-communicable disease (NCD) policy development have been less well explored. This review aimed to synthesise the available evidence using a political economy approach, to understand why, how and under what conditions transnational corporations may use the international investment regime to promote NCD prevention policy non-decisions.

MAIN BODY

Methods: Mechanisms explaining why/how the international investment regime may be used by transnational health-harmful commodity corporations (THCCs) to encourage NCD prevention policy non-decisions, including regulatory chill, were iteratively developed. Six databases and relevant grey literature was searched, and evidence was extracted, synthesized and mapped against the various proposed explanatory mechanisms.

FINDINGS

Eighty-nine sources were included. THCCs may be incentivised to use the ISDS mechanism since the costs may be outweighed by the benefits of even just delaying regulatory adoption, particularly since the chilling effect tends to ripple out across jurisdictions. Drivers of regulatory chill may include ambiguity in treaty terms, inconsistency in arbitral rulings, potential arbitrator bias and the high cost of arbitration. Evidence indicates ISDS can delay policy adoption both within the country directly involved but also in other jurisdictions. Additionally, governments are adopting standard assessments of public health regulatory proposals for trade and ISDS risk. Various economic, political and industry-related factors likely interact to increase (or decrease) the ultimate risk of regulatory chill. Some evidence indicates that THCCs take advantage of governments' prioritization of foreign investment over NCD prevention objectives to influence the NCD prevention regulatory environment.

CONCLUSIONS

While ISDS-related regulatory chill is a real risk under certain conditions, international investment-related NCD prevention policy non-decisions driven by broader political economy dynamics may well be more widespread and impactful on NCD regulatory environments. There is therefore a clear need to expand the research agenda on investment liberalization and NCD policy beyond regulatory chill and engage with theories and approaches from international relations and political science, including political economy and power analyses.

Corporate power and the international trade regime preventing progressive policy action on non-communicable diseases: a realist review

Transnational tobacco, alcohol and ultra-processed food corporations use the international trade regime to prevent policy action on non-communicable diseases (NCDs); i.e. to promote policy 'non-decisions'. Understanding policy non-decisions can be assisted by identifying power operating in relevant decision-making spaces, but trade and health research rarely explicitly engages with theories of power. This realist review aimed to synthesize evidence of different forms and mechanisms of power active in trade and health decision-making spaces to understand better why NCD policy non-decisions persist and the implications for future transformative action. We iteratively developed power-based theories explaining how transnational health-harmful commodity corporations (THCCs) utilize the international trade regime to encourage NCD policy non-decisions. To support theory development, we also developed a conceptual framework for analysing power in public health policymaking. We searched six databases and relevant grey literature and extracted, synthesized and mapped the evidence against the proposed theories. One hundred and four studies were included. Findings were presented for three key forms of power. Evidence indicates THCCs attempt to exercise instrumental power by extensive lobbying often via privileged access to trade and health decision-making spaces. When their legitimacy declines, THCCs have attempted to shift decision-making to more favourable international trade legal venues. THCCs benefit from structural power through the institutionalization of their involvement in health and trade agenda-setting processes. In terms of discursive power, THCCs effectively frame trade and health issues in ways that echo and amplify dominant neoliberal ideas. These processes may further entrench the individualization of NCDs, restrict conceivable policy solutions and perpetuate policymaking norms that privilege economic/trade interests over health. This review identifies different forms and mechanisms of power active in trade and health policy spaces that enable THCCs to prevent progressive action on NCDs. It also points to potential strategies for challenging these power dynamics and relations.

Defending access to medicines in regional trade agreements: lessons from the Regional Comprehensive Economic Partnership - a qualitative study of policy actors' views

Background

The Regional Economic Partnership Agreement (RCEP) is a mega regional trade agreement signed by fifteen countries on 15 November 2020 after 8 years of negotiation. Signatories include the ten members of the Association of South East Asian Nations (ASEAN) plus China, New Zealand, Japan, South Korea and Australia. India was a negotiating party until it withdrew from the negotiations in November 2019. The RCEP negotiations were initially framed as focused on the needs of low income countries. Public health concerns emerged however when draft negotiating chapters were leaked online, revealing pressures on countries to agree to intellectual property and investment measures that could exacerbate issues of access to medicines and seeds, and protecting regulatory space for public health. A concerted Asia Pacific civil society campaign emerged in response to these concerns, and in 2019, media and government reporting suggested that several of these measures had been taken off the table, which was subsequently confirmed in the release of the signed text in November 2020.

Results

This paper examines civil society and health actors’ views of the conditions that successfully contributed to the removal of these measures in RCEP, with a focus on intellectual property and access to medicines. Drawing on twenty semi-structured qualitative interviews with civil society, government and legal and health experts from nine countries participating in the RCEP negotiations, the paper reports a matrix of ten conditions related to actor power, ideas, political context and specific health issues that appeared to support prioritisation of some public health concerns in the RCEP negotiations.

Conclusions

Conditions identified included strong low and middle income country leadership; strong civil society mobilisation, increased technical capacity of civil society and low and middle income negotiators; supportive public health norms; processes that somewhat opened up the negotiations to hear public health views; the use of evidence; domestic support for health issues; and supportive international public health legislation. Lessons from the RCEP can inform prioritisation of public health in future trade agreement negotiations.

Challenges to sovereign ambitions: forces of convergence and divergence within the global pharmaceutical sector and the UK's withdrawal from the European Union

This paper maps key regulatory, governance and legal challenges associated with the UK's withdrawal from the European Union (EU) in terms of convergent and divergent pressures within the global pharmaceutical sector. These include (i) convergent regulatory pressures associated with the European framework for pre-market licensing; (ii) convergent and divergent industry pressures with regard to drug discovery and manufacturing; and (iii) divergent and convergent market pressures associated with the supply, pricing and assessment of medicines. The UK's sovereign ambitions risk a loss of influence over the licensing and surveillance of pharmaceuticals under convergent regulatory and industry pressures to engage in unilateral participation in the European regime. Further, they also risk a loss of influence over processes for pricing and assessing the effectiveness of new treatment regimens under divergent market pressures from larger pharmaceutical markets outside the EU, notably the United States.

Analyzing the impact of trade and investment agreements on pharmaceutical policy: provisions, pathways and potential impacts

Background

Trade and investment agreements negotiated after the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have included increasingly elevated protection of intellectual property rights along with an expanding array of rules impacting many aspects of pharmaceutical policy. Despite the large body of literature on intellectual property and access to affordable medicines, the ways in which other provisions in trade agreements can affect pharmaceutical policy and, in turn, access to medicines have been little studied. There is a need for an analytical framework covering the full range of provisions, pathways, and potential impacts, on which to base future health and human rights impact assessment and research. A framework exploring the ways in which trade and investment agreements may affect pharmaceutical policy was developed, based on an analysis of four recently negotiated regional trade agreements. First a set of core pharmaceutical policy objectives based on international consensus was identified. A systematic comparative analysis of the publicly available legal texts of the four agreements was undertaken, and the potential impacts of the provisions in these agreements on the core pharmaceutical policy objectives were traced through an analysis of possible pathways.

Results

An analytical framework is presented, linking ten types of provisions in the four trade agreements to potential impacts on four core pharmaceutical policy objectives (access and affordability; safety, efficacy, and quality; rational use of medicines; and local production capacity and health security) via various pathways.

Conclusions

The analytical framework highlights provisions in trade and investment agreements that need to be examined, pathways that should be explored, and potential impacts that should be taken into consideration with respect to pharmaceutical policy. This may serve as a useful checklist or template for health and human rights impact assessments and research on the implications of trade agreements for pharmaceuticals.

International trade and investment: still the foundation for tackling nutrition related non-communicable diseases in the era of Trump?

Trade and investment policy strongly influence diet, nutrition, and risk of non-communicable disease—but what does this mean in the context of recent global political developments?

Economic globalization, nutrition and health: a review of quantitative evidence

Background

Unhealthy dietary patterns have in recent decades contributed to an endemic-level burden from non-communicable disease (NCDs) in high-income countries. In low- and middle-income countries rapid changes in diets are also increasingly linked to malnutrition in all its forms as persistent undernutrition and micronutrient deficiencies continue to coexist with a rising prevalence of obesity and associated NCDs. Economic globalization and trade liberalization have been identified as potentially important factors driving these trends, but the mechanisms, pathways and actual impact are subject to continued debate.

Methods

We use a ‘rigorous review’ to synthesize evidence from empirical quantitative studies analysing the links between economic globalization processes and nutritional outcomes, with a focus on impact as well as improving the understanding of the main underlying mechanisms and their interactions.

Findings

While the literature remains mixed regarding the impacts of overall globalization, trade liberalization or economic globalization on nutritional outcomes, it is possible to identify different patterns of association and impact across specific sub-components of globalization processes. Although results depend on the context and methods of analysis, foreign direct investment (FDI) appears to be more clearly associated with increases in overnutrition and NCD prevalence than to changes in undernutrition. Existing evidence does not clearly show associations between trade liberalization and NCD prevalence, but there is some evidence of a broad association with improved dietary quality and reductions in undernutrition. Socio-cultural aspects of globalization appear to play an important yet under-studied role, with potential associations with increased prevalence of overweight and obesity. The limited evidence available also suggests that the association between trade liberalization or globalization and nutritional outcomes might differ substantially across population sub-groups.

Overall, our findings suggest that policymakers do not necessarily face a trade-off when considering the implications of trade or economic liberalization for malnutrition in all its forms. On the contrary, a combination of nutrition-sensitive trade policy and adequate regulation of FDI could help reduce all forms of malnutrition. In the context of trade negotiations and agreements it is fundamental, therefore, to protect the policy space for governments to adopt nutrition-sensitive interventions.

Electronic supplementary material

The online version of this article (10.1186/s12992-019-0456-z) contains supplementary material, which is available to authorized users.

Trade, investment and public health: compiling the evidence, assembling the arguments

Trade has long been an axiomatic characteristic of globalization, although international rules governing trade are of more recent vintage. Notably in the post-World War II period, an ever increasing number of countries began negotiating treaties to reduce, first, tariff barriers and, later, non-tariff barriers (government measures of any sort) that could impede the cross-border flow of goods. The rationale, in part, was that countries that became more entwined economically would be less likely to go to war with each other. It wouldn't be in their own economic interests to do so, or at least that of the firms based within their borders but engaged in transnational trade and dependent upon global supply chains. At first primarily an undertaking of developed (high-income) countries, developing (low and middle-income countries) slowly enjoined in what, in 1995, became the World Trade Organization. The WTO locked in scheduled declines in tariffs (border taxes), albeit with lesser obligations on developing country members (a problematic nomenclature given the vast geographic, economic, and development differences between such countries, but which nonetheless persists within the WTO). Importantly, a slew of new agreements that coincided with the establishment of the WTO also sought to liberalize trade in services (not just goods) (The General Agreement on Trade in Services), create new rules for agricultural trade (Agreement on Agriculture), expand intellectual property rights protections (The Agreement on Trade-Related Aspects of Intellectual Property Rights), limit trade-distorting government subsidies (Agreement on Subsidies and Countervailing Measures), and ensure that government food, health, or environmental regulations would not pose an unnecessary barrier to trade (the Technical Barriers to Trade and the Sanitary and Phytosanitary Measures Agreements). Outside of the WTO system, bilateral or regional investment treaties granting special rights to foreign investors to sue governments for actions perceived to affect the value of their investment (such as direct expropriation or passage of new laws and regulations considered 'tantamount to expropriation') similarly exploded in number, dispute frequency, and the size of monetary claims. The breadth and depth of these post-1995 Agreements meant that few areas of general public health concern are potentially untouched.

The Trans Pacific Partnership Agreement, intellectual property and medicines: Differential outcomes for developed and developing countries

The final text of the Trans Pacific Partnership Agreement (TPP), agreed between the 12 negotiating countries in 2016, included a suite of intellectual property provisions intended to expand and extend pharmaceutical company exclusivities on medicines. It drew wide criticism for including such provisions in an agreement that involved developing countries (Vietnam, Peru, Malaysia, Mexico, Chile and Brunei Darussalam) because of the effect on delaying the introduction of low-cost generics. While developing nations negotiated transition periods for implementing some obligations, all parties would have eventually been expected to meet the same standards had the TPP come into force. While the TPP has stalled following US withdrawal, there are moves by some of the remaining countries to reinvigorate the agreement without the United States. The proponents may seek to retain as much as possible of the original text in the hope that the United States will re-join the accord in future. This article presents a comparative analysis of the impact the final 2016 TPP intellectual property chapter could be expected to have (if implemented in its current form) on the intellectual property laws and regulatory regimes for medicines in the TPP countries. Drawing on the published literature, it traces the likely impact on access to medicines. It focuses particularly on the differential impact on regulatory frameworks for developed and developing nations (in terms of whether or not legislative action would have been required to implement the agreement). The article also explores the political and economic dynamics that contributed to these differential outcomes.

Achieving universal health coverage in small island states: could importing health services provide a solution?

Background

Universal health coverage (UHC) is difficult to achieve in settings short of medicines, health workers and health facilities. These characteristics define the majority of the small island developing states (SIDS), where population size negates the benefits of economies of scale. One option to alleviate this constraint is to import health services, rather than focus on domestic production. This paper provides empirical analysis of the potential impact of this option.

Methods

Analysis was based on publicly accessible data for 14 SIDS, covering health-related travel and health indicators for the period 2003–2013, together with in-depth review of medical travel schemes for the two highest importing SIDS—the Maldives and Tuvalu.

Findings

Medical travel from SIDS is accelerating. The SIDS studied generally lacked health infrastructure and technologies, and the majority of them had lower than the recommended number of physicians in a country, which limits their capacity for achieving UHC. Tuvalu and the Maldives were the highest importers of healthcare and notably have public schemes that facilitate medical travel and help lower the out-of-pocket expenditure on medical travel. Although different in approach, design and performance, the medical travel schemes in Tuvalu and the Maldives are both examples of measures used to increase access to health services that cannot feasibly be provided in SIDS.

Interpretation

Our findings suggest that importing health services (through schemes to facilitate medical travel) is a potential mechanism to help achieve universal healthcare for SIDS but requires due diligence over cost, equity and quality control.

Trade is central to achieving the sustainable development goals: a case study of antimicrobial resistance

Johanna Hanefeld and colleagues highlight the links between trade and health and argue for greater consideration of trade agreements in actions to meet the sustainable development goals

Advancing Public Health on the Changing Global Trade and Investment Agenda Comment on "The Trans-Pacific Partnership: Is It Everything We Feared for Health?"

Concerns regarding the Trans-Pacific Partnership (TPP) have raised awareness about the negative public health impacts of trade and investment agreements. In the past decade, we have learned much about the implications of trade agreements for public health: reduced equity in access to health services; increased flows of unhealthy commodities; limits on access to medicines; and constrained policy space for health. Getting health on the trade agenda continues to prove challenging, despite some progress in moving towards policy coherence. Recent changes in trade and investment agendas highlight an opportunity for public health researchers and practitioners to engage in highly politicized debates about how future economic policy can protect and support equitable public health outcomes. To fulfil this opportunity, public health attention now needs to turn to strengthening policy coherence between trade and health, and identifying how solutions can be implemented. Key strategies include research agendas that address politics and power, and capacity building for both trade and health officials.

Commentary: Moving towards policy coherence in trade and health

International trade has brought economic benefits to many countries, but the association of trade and investment liberalisation with poor health outcomes concerns the public health community. The need to secure more 'healthy' trade is a recognised priority, especially as countries move from global to regional/bilateral trade agreements - with greater public health risks. However, a transition towards 'healthier trade' may be hindered by worldview differences between the trade and health communities. There is a tendency for health actors to perceive trade as a threat to population health, and for trade actors to view health as a constraint to trade objectives of reducing barriers to cross-border commercial flows and economic growth. Unless such differing worldviews can be aligned, finding ways forward for addressing public health in trade policy is likely to be difficult. Moving forward will involve understanding the values and drivers of the respective groups, and developing solutions palatable to their various interests. Given the power imbalances between the two areas, it is likely that the health community will have to make the first moves in this respect. This article outlines the key issues involved and suggests areas where such moves have been, and may be made.

Trade and investment liberalization and Asia's noncommunicable disease epidemic: a synthesis of data and existing literature

BACKGROUND

Trade and investment liberalization (trade liberalization) can promote or harm health. Undoubtedly it has contributed, although unevenly, to Asia's social and economic development over recent decades with resultant gains in life expectancy and living standards. In the absence of public health protections, however, it is also a significant upstream driver of non-communicable diseases (NCDs) including cardiovascular disease, cancer and diabetes through facilitating increased consumption of the 'risk commodities' tobacco, alcohol and ultra-processed foods, and by constraining access to NCD medicines. In this paper we describe the NCD burden in Asian countries, trends in risk commodity consumption and the processes by which trade liberalization has occurred in the region and contributed to these trends. We further establish pressing questions for future research on strengthening regulatory capacity to address trade liberalization impacts on risk commodity consumption and health.

METHODS

A semi-structured search of scholarly databases, institutional websites and internet sources for academic and grey literature. Data for descriptive statistics were sourced from Euromonitor International, the World Bank, the World Health Organization, and the World Trade Organization.

RESULTS

Consumption of tobacco, alcohol and ultra-processed foods was prevalent in the region and increasing in many countries. We find that trade liberalization can facilitate increased trade in goods, services and investments in ways that can promote risk commodity consumption, as well as constrain the available resources and capacities of governments to enact policies and programmes to mitigate such consumption. Intellectual property provisions of trade agreements may also constrain access to NCD medicines. Successive layers of the evolving global and regional trade regimes including structural adjustment, multilateral trade agreements, and preferential trade agreements have enabled transnational corporations that manufacture, market and distribute risk commodities to increasingly penetrate and promote consumption in Asian markets.

CONCLUSIONS

Trade liberalization is a significant driver of the NCD epidemic in Asia. Increased participation in trade agreements requires countries to strengthen regulatory capacity to ensure adequate protections for public health. How best to achieve this through multilateral, regional and unilateral actions is a pressing question for ongoing research.