Fast-trackless waste: Footnote

Bull kelp forests provide numerous habitats for nearshore fish and invertebrate species in the Gulf of the Farallones National Marine Sanctuary, permanently protected from oil drilling in a move announced this morning by the Obama administration. Credit: Jared Figurski, UCSC.

A new WikiLeak from the Trans-Pacific Partnership negotiations, reported in today's Times, provides a really helpful example of something I've been trying to say and had a hard time finding language for:

Facing resistance from its Pacific trading partners, the Obama administration is no longer demanding protection for pharmaceutical prices under the 12-nation Trans-Pacific Partnership, according to a newly leaked “transparency” annex of the proposed trade accord.

The document is from last December, and what it's about is the general rights of pharmaceutical and medical device makers under the TPP to do their international business, in particular requiring governments that pay for medication (as the US does in the Medicare and Medicaid systems) to "open up" the process in which they decide what their reimbursement rates are going to be, a process drug manufacturers complain is too secret in countries like New Zealand, where they just happen to be able to keep the prices low, as opposed to the US, where they're of course ridiculously high. The US hasn't dropped this general demand, but they have dropped a provision we saw in the 2011 draft, with

explicit reference to “competitive market-derived prices,” promising drug companies the chance to appeal rates deemed insufficient. Those are gone, “a victory for the non-U.S. partners to some extent,” Ms. Gleeson, the Australian expert, said.

Which is in and of itself obviously a good thing for the human beings involved.

How good is another question. Professional TPP opponents say, of course, that it's hardly any good at all, and that the annex itself should not even exist (it's a little bit comical that people so deeply opposed to the secrecy of the trade negotiation process should insist so hard on the right to secrecy of government agencies determining drug prices). As far as I can see, the most important thing is to encourage price competition by making sure governments are allowed to prefer generics to brand-name medications, and I can't see how this thing fails to do that, but generic drug makers are complaining. (Their big problem, maybe, is that big drug companies abuse the transparency by filing endless information requests and threats, shameless lobbying, and direct advertising to consumers, but it's just not clear from the Times reporting.)

OK, so I'm way out of my depth on the technical issues in any case.

What I want to say is that there's no way out of context of knowing whether it's any good or not. We don't know what other provisions this works with, especially in the intellectual property rules on generic drug making, which have also no doubt changed since 2011; and most importantly we don't know what New Zealand and Singapore and Peru gave up in return for the US dropping price protection for Big Pharma. Maybe it was their 2011 objection to the enhanced enforcement of the Multilateral Environmental Agreements to which I tried to call your attention in April:

• US proposes obligations to adopt, maintain, and implement measures to fulfill specific MEAs [Multilateral Environmental Agreements] (CITES, Montreal Protocol and MARPOL) into the TPP enforceable through the DS [dispute settlement] chapter if failure to do so would affect trade or investment.
• AU, BN, CA, CL, JP, MX, NZ, PE, SG and VN oppose such incorporation in this way as they do not consider it appropriate to incorporate those obligations that have been negotiated in different circumstances and subjecting them to a dispute settlement mechanism in the TPP.

The TPP isn't the work of a juggernaut cabal rolling over the hapless population of the Pacific Rim, but a committee of committees at odds with one another, juggling a large set of considerations they care and don't care about (Obama in particular loves, as Speaker Boehner well knows, to give his opponent a symbolic victory on a point he doesn't really care about while sweeping the important but less flashy issues, as in the recent case of giving Shell Oil permission to apply for permits to drill up to six wells just off shore in the Chukchi Sea while permanently banning drilling in vast areas, most recently in an area off California that is "the largest expansion of national marine sanctuaries in California since President George H.W. Bush established the Monterey Bay National Marine Sanctuary in 1992"—this just in). A lot of what any given country wants is probably selfish or short-sighted, and the results are going to be messy. They could be, like the Affordable Care Act, far from perfect but far better than not doing anything, precisely because of the way the process can force the particular countries to sacrifice one parochial interest to save another. It's not guaranteed, but doing nothing is guaranteed to fail.

Has the Obama administration been using Big Pharma's demands as a bargaining chip to get cooperation from these countries on some really important things, involving environmental or labor rights enforcement? Leaks aren't going to tell us: one way or the other, we need to let them write the agreement so we can find out.