Rethinking Trade - Season 1 Episode 34: The USMCA, A Year in Review

On July 1, 2020, following a lengthy campaign by unions, civil society groups and congressional Democrats to win key improvements, the revised North American Free Trade Agreement, or United States Mexico Canada Agreement (USMCA), went into effect.

Unlike the original NAFTA, the USMCA requires its signatory countries to respect workers’ rights. And it has a special Rapid Response Labor Enforcement Mechanism. The revised deal largely gutted the disastrous Investor-State Dispute Settlement (ISDS) system. But recently-filed labor enforcement complaints and a “legacy” ISDS case with the corporation behind the XL pipeline demanding $15 billion from U.S. taxpayers provide a stark warning that if and how the USMCA improves life and work in North America will depend on activism in all three nations.

See Public Citizen’s analysis of the delayed phase-in of Mexico’s new labor justice system here:

Music: Groove Grove by Kevin MacLeod. Link: License:

Transcribed by Sally King



Welcome back to rethinking trade where we don't just talk about trade policy, we fight to change it. I'm Ryan and I'm joined once again by our in house trade expert, Lori Wallach. In our recent episodes, we've been speaking a lot about COVID-19 and the world trade organizations intellectual property barriers, but today we're going to talk about the revised North American Free Trade Agreement, or the USMCA because it went into effect exactly one year ago. In addition to having Lori with us today, we're also joined by global trade watches Research Director, Daniel Rangel. Daniel has been leading a lot of our work around USMCA related labor and workers rights issues, specifically around the implementation of the new labor rights obligations in Mexico. Daniel is one of the lawyers who filed one of the first labor violations cases. Lori, why don't you start us off with a general overview of the labor rules that activists fought for during the Replace NAFTA campaign. And then Daniel, let's talk about the trade next case and the report you recently authored regarding labor reforms and implementation in Mexico.

Lori Wallach 

So one of the biggest changes between the original NAFTA and the revised deal was that Democrats in Congress forced Donald Trump to renegotiate his renegotiated NAFTA, to add a thing called the rapid response labor enforcement mechanism. And what that did is it allowed for actions to be started through petitions by unions or activists that the governments have to respond to that allow enforcement against a particular company with respect to certain specific violations. And the violations relate to obligations each country was required to implement, to, for instance, guarantee basic fundamental union rights to organize to collectively bargain to be able to have, for instance, Mexico's implementation required being able to have votes on your union contract and see it in advance or being able to elect your own officers of your union to make sure they actually represent you. And what this was focused on was the combination of the original NAFTA, having no real labor standards, there was a side agreement, it wasn't enforceable in any way. And the standards themselves were enforce your own laws. So Mexico's laws and the books were pretty good. The problem was they had been enforced for literally decades, such that what were called protection unions, were the vast mass majority of unions in Mexico and in protection union is one that protects the boss. So it's a union that basically the workers don't vote for. They don't elect that union or its officers, it signs contracts with the bosses that are intended to qualify for Mexican labor law requirements that you have a union contract, but the workers never approve it. Some of them don't even know there is a union. And then these so called unions make a lot of money off of getting deductions from the workers wages, to basically be partners with the bosses in keeping wages down. And that horrible collusion, which was just basically reinforced by NAFTA and all the investment protections that helped big US multinationals move down to Mexico to use that kind of exploited labor. That combination is a big part of why, you know, 25 years after NAFTA not only had Mexican wages not risen as NAFTA as original boosters promised, but in fact, they were slightly down, and certainly they were considerably lower than manufacturing wages in China. That was one of the things that had to be tackled, that was both horribly unfair to work as in Mexico, we're making world class products for global companies, and also as a contributing factor to over a million US jobs having been certified as having been offshored to Mexico under NAFTA. So the deal was stronger labor standards guaranteed of independent unions, and for the first time, some real enforcement, but what you have on paper you never know if you have in reality and that is why one year after that all went to a fact the real question, is it changing people's lives.


One of the situations that Lorijust described one of the specific examples of it is something if you listen to our show you've heard about before, which is the case at the Tridonex plant in Matamoros and You know, the situation regarding the labor lawyer who's been representing the independent union there, Susana preeto. Daniel, tell us about what has been happening at the Tridonex factory and also the case that you have lead regarding the violations of labor rights at the Tridonex factory.


Sure. Thank you for having me, Ryan. So basically, this all started in early 2019, when the President of Mexico and then Manuel Lopez Obrador decided to rise the wages across Mexico a 20% increase of the minimum wage. And when the workers in the northern part of Mexico wanted to have that increase for the wages, that was a right that they want decades ago, because that was a provision that was already in much of the collective bargaining agreements that were prevalent in Tamaulipas, when they decided that they want to ask for this increase. They faced repression and violence, not only from companies but also from the local authorities in Tamaulipas, specifically. So one of the ways in which workers decided to claim for the new rights was organizing through a dependent union that's called MOVIMIENTO 2032 that was born out of this struggle. Workers from many factories affiliated to this union, specifically, workers from Tridonex, who played an important role in the initial uprising. When the workers tried to organize independently, they faced a lot of repression, not only from Tridonex to company management, but also the management was parked by the local authorities that in Mexico are called conciliation and arbitration boards, and those are the authorities that Lori was mentioning before that have been colluding with for decades to repress workers and to undermine the rights. So what we have done, along with our partners in labor, both in Mexico, and in the United States, is to help them present a case before the US government arguing why this has been a violation of the labor rights that are recognized by NAFTA, by the new NAFTA, and consequently, making both the Mexican government and the US government to cooperate to try to find a solution. And if it is not possible to impose sanctions on Tridonex because it has been violating labor rights.


And how does this case tie into? You know, I know that there are now a few other cases as well raising the issue of labor violations under the new rules. There's also the issue of the phase implementation of the rules in Mexico. Why don't you talk about the report that you recently authored looking at the status of the labor reforms and implementation in Mexico and how those kind of relate to the Tridonex case,


The Tridonex case is a good parting point to explain why the stage implementation of the labor reform is worrisome. And is because a good deal of the labor reform in Mexico is related to the creation of new labor courts that will deal with the cases that are filed by unions and workers to fight for their rights. The problem is that in Tamaulipas, that is the state where treatment plans are located. This has been the state that is labeled as phase three estate. What this means is that there are not gonna be any labor courts and the new labor courts in this state until May, 2022. So workers will have to go to the old corrupt labor bodies that already exists, and that are not granting them the rights until at least May 2022, for an additional year. This is not only for Tamaulipas, but it's all for all three states that, together, they have half of the manufacturing output of Mexico, half of the labor conflicts that the country registers every year, and an overwhelming number of strikes per year. And that's the problem that we identified in our report on that we're trying to put the spotlight on so that authorities both in Mexico and in the US look for policy solutions to redress this.


And you can see that report at the link in the summary of this episode. Moving on from that, you know, another one of the big victories during the Replace NAFTA campaign, aside from the labor rights and implementation improvements, was the gutting of Investor State Dispute Settlement rules. While this was a huge moment in the fight For better trade policies, there are still ISDS threats looming across North America. I wanted to talk a bit about both trade deals under the ISDS rules and the situation regarding the gutting of ISDS under the USMCA. Lori, maybe you could tell us a bit about ISDS policies in general and how significant the USMCA is in the context of the ISDS status quo.

Lori Wallach 

So I want to start by reminding folks what Investor State Dispute Settlement or ISDS is, it is a system that empowers multinational corporations, to skirt domestic courts and sue governments for unlimited payments of taxpayer funds over any domestic law or policy or regulation court decision that a corporation thinks violates their special investor rights in a trade agreement or an investor treaty. And these cases are decided by tribunals have three corporate attorneys whose decisions are not subject to appeal, and the amounts they can order taxpayers to pay the corporations have no limits. So the North American Free Trade Agreement, NAFTA, which went into effect in 1994, was the first trade agreement that had this extreme system embedded into it. It basically was a mechanism under which corporations could threaten and or literally extract funds from countries for implementing laws that treat foreign and domestic firms the same. And under NAFTA, almost $400 million were paid out in attacks, on environmental policies, and on totally non trade related policies like bands of toxic substances and land use policies, and water and timber policies. And that system was really one of the most pernicious elements that corporate power rigging was one of the most pernicious elements of NAFTA, it also made an incentive to outsource jobs. Because if you took off and you went to any of the other NAFTA countries, you had more of an opportunity to behave badly. And if the government did anything about it, it was like having basically investor insurance, you could go raid the Public Treasury, if they if the government said follow labor law, follow environmental law, really the wrongheaded way of of having global policy. So the really exciting thing about the revised NAFTA, is that with respect to the US and Canada, that system was simply phased out. So we are now 1/3, of the way to the end of Investor State Dispute Settlement in North America, between the US and Canada. And so July 1 is, you know, we're heading down the road, it's really important because an enormous number of the cases where US corporations attacking Canada's better environmental laws. And when US-Canada, investor state goes away, that means that literally 90% of us investor state liability goes with it. So big improvement. With respect to the US and Mexico, the old ISDS system was replaced by a system that includes most of the reforms progressives have asked for, that, among other things, requires a corporation to actually use up all of its remedies that are available in domestic law and spend a bunch of years trying before they could even use the system. But more importantly, it replaces the old substantive rules where you could get money for almost anything, to literally compensation for actual taking of a property without compensation. And that is not what these cases are about, these cases are about a regulation that changes the use and undermines the expectations. And the way the compensation works, it's the difference between what a company thought they would make their expected profits and what they really make. So it's a big honkin deal. There is one big problem with that fix, which is there was an exception with respect to existing contracts in the petrochemical sector. So oil and gas, if a US company has contracts with Mexico, then if Mexico keeps this full investor state system with any other country that has companies with contracts, then there's a grandfathering of the old outrageous rights with respect to those legacy contracts. And that's super problematic, of course, because those kinds of companies are often the biggest players, some of the biggest money grabs a famous agreement under a US-Ecuador treaty is why the largest ones were oil company is the one that is attacking Ecuador and getting literally more than a billion dollars. So it's a it's a problematic exception, but relatively speaking, almost all the cases actually Have all the cases have happened to the old NAFTA couldn't happen under this new regime. However, three years to phase it in, and as much as we can celebrate, that means there's still three years for bad cases. And already in this first year, some of them have been filed. So there have been some, what we can call legacy cases, phase in period cases. So these corporations are scrambling to use these old corporate rights before they go away. And that's a problem.


You know, Lori, some of the things you just said about the existing ISDS rules under the USMCA what was good, but also the carve out and you know, the the phase in and how that presents these kinds of problems. And Daniel, you were talking about some of the phase in problems under the labor rules. When when the USMCA was passed, some, some are celebrating it as a model for future trade deals, and even a, quote gold standard. But I know Public Citizen, we saw it as progress to be built upon, but far short of a model agreement. We're going to ask you both how is the USMCA looking now after a year? And what does it taught us about the future of US trade policy?

Lori Wallach 

What the whole renegotiation of NAFTA told us is that the old US trade model, which was made worse and worse and worse, until you saw the Trans Pacific Partnership, which was horrific, NAFTA on steroids, is nothing sacrosanct. It is just one version. And it was a version that was not very widely supported. And so after all, the damage it did, it got replaced. Yet, the other thing that told us was, this is an ongoing process. This ain't the gold standard. This isn't the fix. The revised NAFTA is not the model. It was important steps in the right direction. And it fix some things and it tests out some important improvements. But there's a long way to go to get a trade agreement that is really worker centered, that is one that works first for people and the planet. And the whole fight over renegotiating NAFTA is basically from going in a way from NAFTA, which was like five layers below hell we got ourselves up to the surface, which is good. But we aint in any way in trade heaven yet. So there's a lot more work to be done. And we will see how well the changes and improvements in the revised NAFTA actually work because those are things from which we can build. But there's plenty of bad stuff that's still from the original NAFTA and some new bad stuff like rules that help big tech escape, being decent to workers, or that can trash our privacy, all that stuff get added in. So there's a lot further to go. But one very big thing I think this whole episode taught is that the old trade authority system, the so called fast track system, is just a total myth. Because the revised NAFTA was negotiated under so called fast-track. And ultimately, when it came back to Congress, and there simply wasn't a majority that was going to pass that agreement, fast-track or no fast-track, they made the administration go back and renegotiate renegotiate the deal. And it ultimately passed with such a huge supermajority you didn't need fast-track. So the theory of fast-track is you have to put handcuffs on Congress. Well, that didn't work because Congress made them renegotiate it. And then the second theory of fast-track is you'll never get an agreement through Congress unless you have fast track, and no one can have any amendments and debates are limited. Except the thing got the biggest majority of any trade agreement in the 35 years I've been working on trade. Why? Because when you actually include a broad set of interests and make an agreement that actually might work for working people, you have a broad set of members of Congress that are willing to give it a try and support it. So long way to go. Fast-track is not part of the plan going forward. And some improvements that need to be built on is the lesson for me.


As for me, I like to say that USMCA provides hints of what a pro-worker pro-environment trade agreement could look like. At the same time, it has worrisome elements as the ones that Lori was mentioned regarding digital governance that is dying, the states to conduct certain kinds of policies are very much still debated and in there. So now, I think that it is for activists and proposal makers to build up from the good terms that we got from USMCA and not go back to the day that corporate globalization model that has repeatedly shown its shortcomings over the last decades.


As this episode was going live. The company behind the notorious Keystone XL pipeline launched a new attack against the US under the USMCA is legacy ISDS terms. The company TC energy claims is due $15 billion in US taxpayer money because the US government rejected the proposed 875 mile pipeline that would have transported 830,000 barrels of highly polluting crude oil across indigenous communities and more than 1000 rivers, streams and wetlands. We're going to talk a lot more about that in the next episode, so stay tuned. Rethinking Trade is produced by Public Citizen's Global Trade Watch. To learn more you can visit, you can also visit Stay tuned for more and thank you for listening.

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Victory: Pres. Biden and USTR Tai Announce that U.S. Will Support Emergency COVID-19 WTO Waiver of Big Pharma Monopolies to Boost Vaccine Access

By: Mariana Lopez

On May 5, President Biden and U.S. Trade Representative (USTR) Katherine Tai announced U.S. support for an initiative by 100 countries at the World Trade Organization (WTO) to temporarily waive intellectual property (IP) barriers to facilitate more production of COVID-19 vaccines globally.

“This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures,” USTR Tai announced. 

Under Trump, the United States and a handful of other WTO members blocked negotiations on this waiver from even starting last fall. The Biden administration was handed the opportunity to reverse Trump’s self-defeating blockage. Big Pharma lobbied (and will continue to lobby) heavily against the waiver, while a mighty civil society coalition, that Public Citizen helped to build and lead, waged an intensive campaign. On May 5, the administration sided with the people over Big Pharma.

This was an enormous victory that sends a powerful signal to the world by breaking decades of U.S. trade officials’ active promotion of Big Pharma interests over public health. In collaboration with Public Citizen’s Access to Medicines division, Oxfam, Partners in Health, the Association of Flight Attendants-CWA, Doctors Without Borders, Health GAP, Human Rights Watch, Amnesty International and the nurses and teachers unions, Global Trade Watch campaigned to counter Big Pharma’s team of over 100 lobbyists trolling Capitol Hill and pressuring the U.S. to remain on the wrong side of this issue.

Now, it is critical that U.S. engagement in WTO negotiations leads to the fastest possible agreement on a waiver text that encompasses all health technologies needed to end the pandemic, including vaccines, test kits, treatments, medical equipment and PPE. The pharmaceutical corporations want to protect their monopoly control of supply, in part, because as Pfizer briefed investors in March, they see great profit opportunities in producing annual boosters for sale at much higher prices in rich countries. Activists will continue to fight both domestically and globally to ensure that the scope of the negotiated waiver text does not only cover vaccines.


The WTO requires its 159 member nations to provide pharmaceutical firms certain monopoly rights in a text called the WTO’s Agreement on Trade-Related Aspects of Intellectual Property or “TRIPS.” These monopoly protections mean that pharmaceutical corporations control how much and where vaccines, tests and treatments are made.

This is significant because current production capacity can’t supply nearly enough vaccines, treatments or diagnostic tests to meet global needs. Most in low- and middle-income countries will not get vaccinated until at least 2022, and those in the world’s poorest countries may have to wait until 2024 for mass immunization, if it happens at all.

As we end the first third of the year, global vaccine production has not reached 1.5 billion doses, while 10–15 billion doses are needed. Creating greater supply capacity is critical, especially because COVID-19 vaccines may be like flu vaccines that must be given regularly, not a one-time shot.

While Public Citizen’s Access to Medicine program has been campaigning for the U.S. government to invest $25 billion in expanding U.S. and international production capacity, the Global Trade Watch program promoted another important part of the solution to these issues of capacity and global access. A temporary COVID-19 emergency waiver of some WTO TRIPS monopoly rights would help Global South producers, governments and researchers gain access to the formulas and technology to make vaccines, medicines and tests to prevent, treat and control COVID-19. The waiver was proposed by South Africa and India and supported by more than 100 WTO member countries, now including the United States. The scope of the waiver (whether it will cover more than vaccines) is to be negotiated, but the United State’s support of a waiver is a critical first step.

In every region of the world, there are firms with the capacity to produce vaccines, treatments and tests and greatly increase supply if the formulas and technology are shared. By refusing to voluntarily contract with these firms or issue voluntary licenses to qualified firms so they invest in creating new production capacity, vaccine originators like Moderna and Pfizer are effectively blocking sufficient supply from being made. Johnson and Johnson (J&J) did arrange a contract with South Africa firm Aspen to make their vaccine, but for months required that 91% of the shots be sent for sale in Europe to fulfil J&J contracts there. 

Beginning in January, GTW has built escalating pressure on the Biden administration to support the TRIPS Waiver:

Global vaccine apartheid could cost millions of lives, push tens of millions more into poverty and spawn mutated virus variants that evade vaccines. There can be no end to the public health disaster or economic crises anywhere if people in developing nations are not vaccinated. The announcement from the United States is something to celebrate, but the work does not stop here.

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First Labor Rights Claim Under the Revised NAFTA Filed by Migrant Worker Women in the U.S. -- What Does It Mean in Terms of the New Labor Rulebook in the Region?

By Daniel Rangel

The revised North American Free Trade Agreement (NAFTA) hints at key terms that a pro-worker, pro-environment trade agreement should include, thanks to the crucial engagement of congressional Democrats. In 2019, they forced Trump to renegotiate his initial 2018 NAFTA revision to meet Democrats’ demands. The final pact won unprecedented Democratic congressional support in no small part because of enhanced labor obligations enshrined in the agreement and its novel enforcement mechanisms that many hoped could improve the living conditions of working people throughout North America.

One critique made by some progressives was that the deal targeted labor conditions in Mexico, while offering little that could improve working conditions for people north of the Rio Grande — including labor protections for Mexican migrant workers employed in the Northern neighbors.

Well, it turns out that the first demand for enforcement action for failing to comply with the new labor terms is against the United States. The petition submitted on March 23 was filed by Mexican migrant workers, Maritza Perez and Adareli Ponce, and a binational coalition of organizations led by the binational organization Centro de los Derechos del Migrante, Inc. (CDM). Other signers include the American Federation of Teachers, the Association of Flight Attendants-CWA and the United Food and Commercial Workers International Union.

From the outset, it is important to point out that this submission is not under the labor Rapid Response Mechanism (RRM) that is viewed as one of the most interesting new provisions in the revised NAFTA. RRM allows challenges against specific companies and punishes them directly for violations. RRM enforcement only applies to claims about violations of freedom of association and collective bargaining rights, which are not the focus of this complaint. So, the first test run of the RRM provisions is still pending.

Rather, this submission to the Mexican Secretariat of Labor and Social Welfare is effectively a request that the Mexican government initiate what is called a state-state enforcement claim that the United States has breached the revised NAFTA labor rules by allowing gender-based discrimination in its H-2 non-immigrant worker visa program.

The 133-page complaint basically has four lines of argument.

First, migrant women are largely excluded from the U.S. H-2 visa programs. Through systemic, discriminatory recruitment and hiring practices, women are overwhelmingly left out of both the H-2A and H-2B programs. For instance, in 2018, only 3% of all H-2A visas (for non-U.S. citizens to temporarily work in agricultural essential activities) were issued to women, while women make up 25% of the U.S. agricultural workforce.

Second, the limited number of women who get admitted to the H-2 visa program are routinely funneled into H-2B visas, which are generally less desirable because of lower wages and fewer benefits, such as free employer-provided housing. The petitioners point out that the United States issues approximately three times as many H-2B visas to women as compared to H-2A visas.

Third, even within the less desirable H-2B program, employers generally assign women to less favorable and lower-paid positions than their male counterparts.

And fourth, women that participate in H-2 visa programs experience pervasive sexual harassment and sexual violence and limits to their ability to seek legal counsel.

According to the petitioners, the United States is in violation of its obligations under the revised NAFTA by failing to enforce both the new terms of the deal and its own laws that ban these kind of practices, including Title VII of the Civil Rights Act of 1964. Specifically, the case claims violations of the United States-Mexico-Canada Agreement (USMCA) Article 23.3(1)(d), labor rights; Art. 23.5(1) and (2), enforcement of labor laws; Art. 23.7, violence against workers; Art. 23.8, migrant workers; Art. 23.9, discrimination in the workplace; and Art. 23.10, public awareness and procedural guarantees.

Notably, the petitioners rely on provisions of the revised NAFTA and on U.S. domestic law to back their arguments. This speaks to the critiques about the new deal not protecting Mexican migrant workers. Unlike the original NAFTA’s labor side deal, the revised NAFTA’s Labor Chapter is part of the pact’s core text and contains “hard” obligations that are subject to the agreement’s dispute settlement provisions. This includes obligations on the elimination of employment discrimination (Art. 23.3(1)(d)) and on the protection of migrant workers (Art. 23.8). The original NAFTA’s labor-side agreement only mentioned these subjects as “guiding principles” that the parties were committed to promote without setting common minimum standards.

While the substantive standards give tools to organizations in North America to promote the enhancement of working conditions in the United States and Canada, including for migrant workers, there are no procedural guarantees a formal state-state enforcement action will proceed. Article 23.11 of the revised NAFTA obliges the parties to designate a contact point and to provide a timely response to written submissions related to labor matters. However, whether the enforcement process is launched is solely within the discretion of the government that has been petitioned. Thus, while the strong case made in the petition has advocacy value on its own merits, we must wait for the decision of the Mexican government on whether this will become a formal USMCA case and test if substantive protections for Mexican workers employed in the United States and Canada can be enforced.

Acknowledging the existence of migrant workers protections does not mean that the labor terms in the deal treat each country the same. This imbalance is particularly visible in the procedural requirements to activate RRM, alluded to above. A complaint can be initiated against Mexico based on violations of the right to organize and union democracy rights, under legislation that complies with conditions set out in an annex of the agreement. For all relevant purposes, this refers to violations of Mexico’s 2019 reformed Federal Labor Law. However, cases against the United States and Canada are limited to violations occurring after the National Labor Relations Board or Industrial Relations Board, respectively, has already issued an order, meaning that the issue already has been subject to domestic enforcement action. In practice, what this means is that there is an exhaustion of local remedies requirement to start a RRM case against the United States or Canada and there is no such requirement if the complaint is against Mexico. Furthermore, there is not RRM enforcement between the United States and Canada. 

So, what’s next on this petition? According to the revised NAFTA rules, the Mexican government has to consider and provide a timely response to the petitioners behind this brief, but it still has significant discretion about whether to proceed with state-state dispute settlement. If it chooses to do so, the first step is to start consultations with the United States to try to reach a mutually agreeable solution. If consultations fail, Mexico could initiate a formal dispute settlement proceeding and, eventually, impose trade sanctions against the United States if a panel rules that the violations indeed exist and that the U.S. government has not done anything to redress them.

Whether the Mexican government is likely to pursue this case at all or go all the way through a formal state-state enforcement case remains to be seen. Notably, earlier this year President Andrés Manuel López Obrador (AMLO) aired a proposal to create a Bracero style immigrant labor program to allow Mexican and Central American immigrants to temporarily work in the United States to fill labor shortages. Given that this complaint spotlights bad conditions for workers under existing U.S. visa programs for foreign workers, AMLO could try to leverage the case to promote his plan. However, civil society organizations, among them the lead organization behind the complaint, have sounded alarms about a potential Bracero 2.0 program, due to the exploitative working conditions under the original program during World War II.

In any event, the complaint represents many organizations’ intentions to test if the revised NAFTA’s labor terms could be an effective tool to improve workers’ conditions in the United States, in contrast to the current model that has primarily benefited transnational capital. Now, it is for the governments of North America to treat this case, and those that follow, seriously in order to make the revised deal a floor of decency for worker protection across the region.

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Rethinking Trade - Season 1 Episode 30: Deep Dive: How WTO Rules Protect Big Pharma Profits

Millions of people around the world may not get COVID-19 vaccines until as late as 2024 due to World Trade Organization rules that protect medicine monopolies for the Big Pharma giants. What do these WTO rules require? How do they implicate access to essential medicines? How do countries escape these WTO-imposed barriers that protect corporate profits for vaccines developed with boatloads of tax-payer money?

On this episode, Lori gives us a guided tour through the thorny thicket of intellectual property monopolies, the “trade” agreement rules that oblige countries to enforce them and the WTO waiver needed to boost production of COVID vaccines, treatment and tests worldwide.

Learn more at

Music: Groove Grove by Kevin MacLeod



Transcribed by Sally King

Ryan: Welcome back to Rethinking Trade where we don't just talk about trade policy, we fight to change it. I'm Ryan and I'm joined once again by our in-house trade expert, Lori Wallach. Lorie. Last week during one of our regular global trade watch meetings, you talked with us about some complex but fairly important details regarding medicine, patents, copyrights and international trade rules that impact vaccines and other medicines. This was in the context of the campaigning that we're currently doing supporting a call from over 100 nations at the World Trade Organization for a temporary emergency waiver to the WTO trips rules, which would increase global production of COVID-19 vaccines and treatments. So today, I wanted to ask you to basically give that talk again, only this time to our listeners. So if you're with me, let's take a deep dive into the world of pharmaceutical technology, patents, and copyrights.

Lori: The mission here is to get vaccines, treatments and tests to people in every country in the world. Because no one is going to be safe, the economy's not going to get back in its feet anywhere unless people are able to fight COVID everywhere. Right now there is the capacity to make about 4 billion doses of vaccine per year; 15 billion doses are needed. Governments have spent tens of billions of dollars giving it to pharmaceutical corporations to come up with vaccines. Yet the pharmaceutical corporations have monopoly control over aware how much, if the vaccines will be manufactured, where they can be sold, and at what price. And one part of the reason for this lunatic situation where dozens of countries have not had a single dose of vaccine. And many developing countries are not expected to have significant vaccination until 2024 is in part because of World Trade Organization rules in the trade-related aspects of intellectual property TRIPS agreement, these WTO rules require every signatory country to give very lengthy monopoly rights to corporations with respect to not just patents over say a medicine, but the copyright that goes to the computer program for the machine that makes the vaccine or that makes the ventilator work. And the design information about the machine that is used to do a key process and making the vaccine and what's called undisclosed information protections, which has both to do with some of the know-how about what needs to be done to make it work but also has to do with certain test information. And all of those protections are what South African and India now with 100 countries supporting them are asking is temporarily waived. So that those monopolies are suspended to the extent doing so is necessary to treat and to stop the COVID pandemic. And the campaign that's going on around the world is to get governments to support this because the WTO works by consensus. And so far the US has been one of the very few countries along with the UK, with Canada and the EU as a bloc that have been stopping this very important emergency change at the WTO and these trips rules, basically before have led to needless suffering and death. Because these extreme monopoly protections are the reason millions of people in Africa died in the 90s from AIDS. When in the US HIV diagnosis was the beginning of a chronic disease. You took antiretrovirals you had medical interventions that meant you could live a long life. And the US pharmaceutical companies wouldn't share the information. The countries in which these medicines were made fought what was then an effort to get these WTO rules suspended. And the result was millions of people died. Now in this circumstance, not only are millions of people going to die, but if we don't get this right, it's actually against our own national interest. Because if there is an outbreak of COVID any place where mutations can occur that is going to generate the variant that gets around the vaccines we've already had that puts us all back into quarantine that is more deadly but it's more infectious so really really for any of us to be safe we all need to get the vaccines the tests and the treatments.

Ryan: There's a few key terms and ideas and you talked about some of them just then Lori but maybe if you want to expand on a few of those that might help me and the listeners understand sort of the depth of what TRIPS covers when we think of medicine copyrights or medicine patent you think just oh the pill itself is patented you don't think that everything involved in dispensing it and storing it and all of these things is also covered maybe you could talk about some of that stuff and the differences between a patent and copyright when it comes to these kinds of laws. And then also i want you to get into talking about these compulsory licenses because that's a term that's being used a lot right now as some people are saying oh we can use compulsory licenses we don't need a trips waiver maybe you could talk about that and give us an understanding of what that even means how it works and if it's even applicable right now.

Lori: So one of the first things to know is that at the time i was describing with with the fight over hiv aids medications anti retrovirals typically those medicines had patents so a patents is a monopoly protection granted by a government it's like a license that protects an invention or discovery an idea effectively so if you created some new medicine and it wasn't it was what's called it's original it wasn't something someone else had done you can get this government monopoly right and a copyright protects original works of authorship so like for instance the way to think about how this comes together is at the time of the antiretroviral wto fight for hiv aids the medicines were basically protected by patents so at that time the fight was to make clear you could get what was called a compulsory license that is the ability for a government if a company will not allow a contract for a local manufacturer a monopoly patent holder you can force a license that's what a compulsory licenses you force a license and the license is literally the right to make that thing that is under the patent monopoly so let's just say I had the monopoly on come up with whatever it is medicine and you're in a different country Ryan and your country needs that you have come to me and say alright company and country a I would like this or I may be in the same country i would like to be able to make this medicine too and I would say, "Well I have a monopoly for 20 years it's a patent, go away I can charge as much as I want." And if you could prove an overriding national interest to health emergency etc, then you could go to the government say, "Hey, I've tried to get Wallach to give me this license I'm happy to pay for it but she ain't budging." And then they force it and they say, "I will grant you company, Ryan, a compulsory license to make company Wallach's drug." And the WTO fights in the early 90s was just to make clear that governments could do that because the big pharma interests were saying whoa under these WTO rules you can't even do that so the situation though got kind of more evil so the problem we have now is then there was a patent and then you would do a compulsory license if a company was being greedy. Now the companies that are what are called the originators so the companies that have made the product initially in this instance with the vaccines with literally tens of billions of taxpayer funds but related, but separate issue. So whoever has that intellectual property monopoly now their strategy has been to make what is often called a thicket of intellectual property protections. So instead of there being a patent on the medicine there is a patent on the medicine but then there is also a patent on the three precursor chemicals that were created that go into the medicine and then also the special whirlygig that you created which mixes up your components gets patented it's a machine and it's an invention and that gets patented and then you decide to make a special injector that is especially useful for this and can only your medicine can only be the shot can only be through your injector and that gets patented and then in addition your worldly gig is operated by a computer program and that gets copyrighted. And then also you have very specific rules about how the medicine can be transported and how it can be delivered and how it can be segmented and how it can be dosed. And that booklet gets copyrighted. And then in addition, you have a lot of know-how about the stuff that isn't just the recipe that isn't just here's how the machines engineering is done, that you try as these companies to get some kind of monopoly protection over as undisclosed information, you basically want to make it so it is basically nigh impossible for anyone to be able to make this but you so you control how much you control the prices. And these kind of IP thickets are what right now are like barbed wire around these vaccines. So that if these WTO rules that allow, that require all of these countries to have these rules in place, and allow this kind of mop monopoly protection, it will make it almost impossible for what needs to happen, which is production needs to be scaled up all over the world of these vaccines of these treatments of these tests. Because it's not just we need to get everyone vaccinated once it's going to be an ongoing process. And there is simply I mean, there's no way under the current paradigm, we are going to be able to get the volume, the supply, it's never the money issue. You know, a lot of the pushback from certain people in the US government officials in the US or EU is, "Oh, look, we're starting to give to these different funds that will be buying the vaccines for poor countries." And you know, it's good luck, there's nothing to buy, that's part of the problem, because the entire supply that exists is insufficient, and what is in existence has been already pre-ordered. So we have to have more made, which is why this WTO waiver covers the four different pieces of copyright because the compulsory license for a patent ain't gonna cut it, the thing that worked in the 1990s ain't gonna cut it. You have to have, to the extent it limits the treatment and crushing of COVID, you have to have temporary suspension, also of those copyright rules, as of course of the patent rules of the non disclosed information rules, you have to basically have the whole thicket, you have to have a very strong clipper to go through all that barbed wire and rip it out of the way. So more production can happen.

Ryan: How do these rules interact with our domestic laws? And what happens to them at the World Trade Organization?

Lori: So that's a very big kettle of fish generally, and as part of what is wrong with the WTO. But the short answer is the WTO has a requirement that is each country shall ensure the conformity of its domestic laws, regulations and administrative procedures, with the attached agreements. And that includes all those patents and copyright and other monopoly rules in TRIPS. So every country is obliged to have its domestic laws meet those rules. And if you don't, you can get hit with trade sanctions from another country. And also, frankly, without the blessing of the WTO, to have the changes that many countries want to make. Countries want to be able to help support domestic production, obviously, not every country can do it. But in every region of the world, there are companies in countries that could be making these vaccines and treatments and shipping in the region. And there's just endless stories of how having pharma monopoly control means no supply. There are just, you know, there's a company a very high tech company in Bangladesh, that's been begging all of the Big Pharma and Maderna and all the others to give them a license to be able to contract manufacturer, the medicine for distribution in Asia, the company that is currently having a contract with Johnson & Johnson in South Africa is obliged because Johnson & Johnson totally controls it, to export 91% of what they make to Europe, 9% can be sold in South Africa. So the keeping that monopoly control in your domestic law, when governments want to have the blessing of the WTO in the short term to take the policy changes without threat of sanction, but also effectively like the good housekeeping seal of approval, so that the pharma companies and other countries, don't threaten them with lawsuits, etc. Because you know, pharma can come into the domestic courts and say this is a violation of your obligations under the digit. They just need all of that cleared away, and honestly, also having the waivers enormous leverage, because there's been a lot of sweet-talking to Pharma, please do this please contribute that please share this and none of it's happened. None of it's happened. And so this is the stick, right? This is the stick this is if you guys don't start doing technology transfer, then we will use the rights under this WTO waiver to just do it on our own.

Ryan: Rethinking Trade is produced by Public Citizen's Global Trade Watch. To learn more you can visit, you can also visit Stay tuned for more and thank you for listening.

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Rethinking Trade - Season 1 Episode 29: Will Biden Build Back Green, or Import Green?

Our tax dollars should support green jobs with fair wages, not a global race to the bottom that exploits workers and poisons the environment. But thanks to corporate-rigged trade policies, “Buy American” government purchasing requirements are waived to include purchases from 60 other countries. This means our tax dollars are exported instead of being recycled at home to develop electric car and domestic solar, wind and other renewable energy manufacturing.

With the COVID-19 relief bill currently being implemented and another major spending bill on the horizon, the president must take a simple but important action to keep trillions in taxpayer dollars circulating in the U.S. economy to build a green future. Thankfully, the Biden administration’s Build Back Better plan acknowledges this as a problem for both climate justice and economic justice, but obstacles still remain.

More on this subject is available here.

Transcribed by Sally King

Ryan: Welcome back to rethinking trade where we don't just talk about trade policy, we fight to change it. I'm Ryan and I'm joined once again by our in-house trade expert, Lori Wallach. Today, we're going to be talking about jobs, the climate and a major part of the Biden administration's plans for the country. Before we get into that, though, there's two things that need to be defined for me and for the listeners. The first one is Buy American. The second is industrial policy. Lori, could you give us a quick understanding of what these terms mean, in relation to the content we're about to discuss.

Lori: So Buy American is literally a statute from the FDR era, that gives preferences to domestic goods when the government spends money. So when the government procures cars or desks or paper or computers or phones, the law requires that the priority be in reinvesting our tax dollars into buying things made here, so that the money goes back into innovation and jobs in the United States. Industrial policy is a broad set of policy approaches that a government uses to incentivize the development of different sectors like manufacturing. Procurement policy, like by American is one tool of industrial policy. But other tools include tax policies. For instance, our current tax system incentivizes the offshoring of investment in jobs, you get a lower tax rate if you produce offshore, that's a choice. It's an anti-industrial policy, or sometimes industrial policy involves subsidies. So the government will give you a payment back if you buy an electric car, if you use solar on your roof, for instance, to try and incentivize certain behaviors with respect to renewable energy. And that basket of different tools many countries use and many developed countries like Germany, where its industrial policy for manufacturing, for instance, and involves tax policies involves educational policies to train workers and technical skills involves investments in research and universities involves incentives and subsidies and tax benefits to cluster different companies together so they can become a solid supply chain in a particular area. And all of those tools together are how the countries that currently are leading in different sectors have been able to do so. So the good news is that the Build Back Better plan contemplates renegotiating those parts of the trade agreements that effectively forbid us from using Buy American preferences by it's going to take a while to do that 60 countries now get that treatment, a lot of different agreements are going to need to get fixed, but a ton of money. And in fact, some of the main policy towards green energy, green auto sector infrastructure is all going to get spent is going to be allocated very quickly. And that is because there will be too big reconciliation bills, the one passed the COVID relief Bill $1.9 trillion. And the next one is going to have a lot of energy, infrastructure, etc, in it. And that is the Recovery Act, the COVID Recovery Act. And those are the two pieces of legislation that can get through the Senate with 50 votes, it's using a sort of arcane budget rule. But those are the things we know for sure are going to actually be the trains leaving the station versus the Republicans in the Senate can block a lot of other stuff. And so if the president doesn't use the authority the President has right now to do a special waiver. So that's that by American exception for all the trade women countries is not it needs to be chucked out just for the COVID spending. We can then go back and renegotiate for the regular spending the trade agreements. But in the short term, if the president doesn't use this special authority that he has, we'll end up offshoring those trillions of extra dollars including in the green energy green jobs, electric car sector instead of building instead of investing to build those sectors here. We'll just end up spending the money to import the goods from someplace else.

Ryan: You kind of hinted at some of this in what you just said. But President Biden's Build Back Better plan calls for some pretty huge investments in green technology as part of the path forward on both job creation, but also addressing some of the priority changes called for by the climate justice movement. A lot of people have observed that this is one of the closest things we've seen in a long time to having a wide-scale national industrial policy, and one that has both national and global implications. I wanted to ask you, Lori, how do Buy American rules play into the Build Back Better vision? And what are some of the critical fixes that need to be made to ensure that these rules can be used to support this initiative?

Lori: Over time, the Buy American policies that were established originally 80 years ago, have been eroded. And they've been eroded in two ways. One is that there are very loose rules about what can be considered American, you can have all the parts and components come from someplace else. And as long as it's assembled here, it qualifies under some circumstances. And so a lot of taxpayer money actually literally is being spent in goods made elsewhere. Another really big exception to the rule is that any country with which the U.S. has a certain kind of trade agreement gets treated all of its goods and services as companies get treated like they're American. So right now by American means by American plus goods from 60 other countries, it's all of Europe, it's Japan, it's Hong Kong, it's Mexico, it's Korea. And for all of those goods, there is basically offshoring of our tax dollars to buy those goods from other countries. And the hitch with the build back better plan is, it both recognizes that this is a problem, and for instance, talks about renegotiating a bunch of those trade agreement rules, which is exactly right. But the hitches a lot of the money is going to be spent through what is called the reconciliation bills, these two bills that only need 50 votes to get through the Senate are some of the only big policy bills that are going to go into place. The first one's already been passed. It's the COVID Relief Act $1.9 trillion dollars. And the next one is going to probably be focusing more on infrastructure and renewable energy. And if there's a big waiver to buy American with the trade agreements for all of that we're going to see a lot of the potential to harness that taxpayer money into a renewable energy future with good jobs being squandered.

Ryan: You were quoted in the Huffington Post recently, in an article called "How a Trade Dispute Between Two Korean Firms Could Jam Biden's Electric Car Plans." The article detailed a rather obscure case moving through the U.S. International Trade Commission's core system, that could have a big impact on some of Biden's Build Back Better plan. Maybe you can explain this case and how it shines a light on the necessity to transform our trade policies as we look towards other systemic domestic priorities.

Lori: So, the case in question is a fight between two Korean companies that make electric car batteries. And there is a piece of U.S. trade law that allows a private company to go to court and basically get an injunction a stop operating order against another company if they can argue that that other company is importing goods or is making goods that violate the intellectual property rights of the other company. So the one Korean company is saying that the other Korean company which is trying to open up an electric car battery factory in Georgia, the company number one is claiming company number two that's opening the new U.S. plant has stolen company number ones electric battery technology, and that it's violating its patent. And under this U.S. trade law, basically, the patent right of the foreign company trumps the goal of the Biden administration and getting a lot of electric vehicles and that supply chain built in the U.S., because it doesn't matter if it's a Korean company, or if it's a U.S. company, if the production is here, and the jobs are here and the supply chain is here. That helps promote what the bind administration is trying to do as far as the climate and jobs goals. So the there's been an original ruling by the International Trade Commission that is forbidding the second company to produce its electric car batteries, they can only do it for a certain number of years and then be shut down. And so there's now an effort by policymakers in Georgia and environmental groups to get the president to use authority to override the shutdown of this electric car battery plant.

Ryan: Last, Lori, for a big question. And that is, do you think the Biden administration will follow through on these promises? Or maybe more importantly, for folks listening to this podcast? What are some of the roadblocks that we need to work to transform to help clear the way?

Lori: My sense is that the administration actually intends to follow through. But it's not going to be a simple matter, because there are a lot of special interests that have enjoyed the existing system. Which is to say, obviously, the oil and gas companies have had all kinds of incentives and privileges in the tax code with subsidies, those have to be taken away. And then the green energy sector and electric car production need to be incentivized. And that's going to be a big battle. But something people can do right now is to communicate by email, by calls, if you're a user of Twitter, by Twitter, the message to your senators and your house members that you need the president to use the President's existing authority to do an emergency waiver of the trade women exception for Buy American, you don't want the big COVID relief and recovery bill money to go offshore. And you know, the easy way to say it basically is can you get the president to end the trade agreement exception for Buy American for the COVID money. That's the cleanest way to say it. So far, 13 senators and a bunch of House members have written to the president asking him to use that authority, it's very easy to do, the president just has to put a little notice in the Federal Register saying, "Hey, for this COVID money, the by American exception for trade agreements does not apply that money staying home -- we're investing at home." It's just a ploy question of getting that to be something the President actually prioritizes doing. Because if we have this unique opportunity with all these large pots of money to try and build the future green infrastructure green energy system, electric car supply chain that we need, both as a matter of having a livable planet and surviving climate catastrophe, but also to create new jobs and transition, have a just transition that takes into account people's livelihoods, then we need to have that money harness here. We've paid it in as taxpayers, we need to transform our economy, our jobs and do our part to protect the climate. And that means we need to make sure it's not all being offshored. Because, you know, the companies that got their original waiver to Buy American for the trade agreements, they always wanted to be able to get their big fat government contracts and to produce the stuff at slave wages offshore. And as a matter of climate justice and economic justice that has to end you want our tax dollars, then A: it's going to be green and B: it's going to be fair wages. So you're going to be having unions, you're gonna be making a lot of it at home, you're not going to be racing to the bottom, and we have control over that. And it's worth talking to members of Congress about that right now because the money starting to move.

Ryan: Rethinking trade is produced by Public Citizens Global Trade Watch. To learn more, you can visit You can also visit Stay tuned for more and thank you for listening

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Public Health and Big Pharma Monopoly Protections: Why a WTO Waiver on IP Rules Is of the Essence

By Daniel Rangel

With growing momentum behind the global campaign for a temporary, emergency waiver of some of the World Trade Organization’s (WTO) intellectual property (IP) to boost production of COVID-19 vaccines, treatments and tests, the pharmaceutical industry is arguing the initiative is not necessary or helpful. These claims, while not original, are still worth debunking, given they distract from the mission at hand: removing legal and political obstacles to scale up manufacturing of the critical goods we need to combat a raging pandemic.

There are several accounts that thoroughly explain why waiving certain provisions of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is critical and how it could contribute, along with other efforts, to ramping up production of vaccines, treatments, diagnostic tests and equipment so that we can end the pandemic as quickly as possible. (You can see our contribution here.)

The IP-maximalists — the usual Pharma CEOs and various associations and spokespeople — started from the old hymnal: (i) IP is not really an obstacle, (ii) developing countries do not have the capacity to produce and (iii) TRIPS has incorporated flexibilities that allow countries to balance their public health needs with the IP protection.

This December 2020 brief from Doctors Without Borders does a nice job taking down these “myths.” However, as these claims have been disproved, some new arguments are rising.

One theme is that the TRIPS waiver would not be enough to make a difference, and thus countries would fare better if they focused their efforts elsewhere, such as on COVAX. (While COVAX is an important initiative, its reach should not be overstated. If it has the funds and vaccines supply to reach its most ambitious goal, COVAX would cover the 20% most at-risk portions of low- and middle-income countries’ populations. That is far below the percentage needed to achieve herd immunity and crush the virus.)

Why would the TRIPS waiver not be enough to make a difference? Because countries would need to make swift changes to their own laws, which would be difficult, if not impossible, this argument goes. It’s a rather odd argument, given that more than 100 countries are supporting the WTO proposal precisely because they want to adjust their domestic IP policies and practices in the face of the pandemic. A major point of the waiver is to gain policy space to act without the risk of facing a WTO challenge and legal defense expenses or other WTO nations’ sanctions.

Countries, faced with the COVID-19 disaster, have not hesitated to act swiftly and enact all sorts of measures to deal either with the public health crisis or the struggling states of their economies, as documented by COVID AMP, a project led by the Georgetown University Center for Global Health Science and Security, that tracks policies taken in response to the pandemic. Countries have enacted nearly 250 pieces of legislation, at the national level, to adjust their legal frameworks to make them more suited to the innumerable challenges posed by the pandemic.

Parliaments around the world have adopted legislation to approve unprecedent fiscal stimulus packages; compel health providers to serve everyone, without delay and free of charge; allow health authorities to restrict large gatherings, sport events and commercial activities; ban financial intermediaries from collecting debt; and impose national mask-wearing mandates. After all of that, making changes to intellectual property regimes so as to ensure the public has access to vaccines, treatments and tests to crush the pandemic hardly seems impossible, especially if the right message is sent from the WTO.

In fact, rich countries, such as Canada, Germany and France, already passed legislation streamlining and expediting the process for getting compulsory licenses for patented inventions. Notably, Canada — a country that has opposed the WTO TRIPS waiver — reformed its Patent Act in March 2020, as a part of its COVID-19 Emergency Response Act, to expand the federal government’s power to authorize a compulsory licensing system in the context of a national health emergency to facilitate production and sale of patented products without having to seek authorization from the patent holder and regardless of its capacity to satisfy the domestic demand.

Unlike many developing countries that are largely deprived from access to COVID medical goods, Canada has ample legal resources to battle out at the WTO whether this new policy complies with TRIPS requirements for compulsory licensing. But most low- and middle-income countries that support the waiver proposal and that now have no or very limited vaccine access have neither the legal capacity nor the political clout to do as Canada has. Indeed, when these very countries have tried to use the existing flexibilities in the WTO TRIPS Agreement, they are often bullied by the United States or the European Union to alter their plans or face trade disputes and sanctions. This is why a waiver that defangs the usual legal and power plays both is the necessary signal for developing countries and their manufacturers to invest and act.

Perhaps more importantly, as Doctors Without Borders noted, even with this new legislation, Canada was not able to convince or compel COVID-19 vaccine developers to manufacture doses in its territory while it was negotiating its purchasing agreements. This leads to a major point: even for a country like Canada that has the legal capacity and political clout to expand its legislation on compulsory licensing, the existing TRIPS flexibilities — which are expressed domestically in the form of compulsory licensing systems for patented inventions — are just not enough to overcome the myriad of challenges that countries are facing to kickstart COVID-19 vaccine production in their territories. Challenges go from the thicket of patents covering every step of vaccine development and manufacturing to the undeniable need of knowledge and technology transfer from vaccine developers to manufacturers around the world, to the sizable investments required to retool existing facilities and create new ones. Whereas the waiver, as opposed to the current flexibilities, would allow countries to undertake actions to get rid of the first challenge, there are clearly more steps required to deal with the second and third ones.

There is much that could be said about these issues, and they probably warrant a different entry on this blog. For the purposes of this piece, it is enough to clarify that the waiver would give every country, but particularly those in the developing world, the policy space needed to undertake bold legislative and administrative action, which could be crucial to expand vaccine production wherever it is technically feasible. 

The latest “novel” argument against the waiver is that many developing countries have entered into free trade agreements (FTAs) with TRIPS-plus obligations, i.e., terms that require governments to provide Pharma firms protections beyond those afforded by the TRIPS Agreement. This indeed is a problem, one that arises when — behind the façade of trade liberalization — countries enter into “trade” deals full of provisions that are not related to the exchange of goods and services across borders and instead are behind-the-doors concessions to corporate interests. For decades, civil society groups have warned of the risks that these kinds of agreements represent for the democratic debate both in developed and developing countries.

However, these FTA TRIPS-plus terms are not grounds for quashing a TRIPS waiver. Rather, the waiver would provide a foundation for FTA parties to issue démarches agreeing to equivalent temporary, emergency waivers or cease-fire agreements renouncing the use of trade-pact dispute settlement to enforce IP related to products necessary to fight the COVID-19 pandemic. Especially since a TRIPS waiver would be adopted by consensus at the WTO General Council, it’s highly unlikely that countries agreeing to waive IP rules at the multilateral level would do the opposite via bilateral deals. Attempts to do so would face global condemnation.

The truth is that South Africa and India, which initiated the waiver proposal, along with other governments, civil society groups and think tanks, have produced swaths of evidence that support the waiver. And, no one has claimed that if a WTO TRIPS waiver is approved, somehow, magically, production facilities will sprout in every country. However, the waiver is the critical first step towards boosting production. It would be pivotal to make other global initiatives work, such as the World Health Organization COVID-19 Technology Pool, and to empower countries worldwide in the colossal effort of bringing the COVID-19 pandemic to an end everywhere and for everyone.

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Hundreds of Prominent US Civil Society Organizations Call on Pres. Biden to Stop Blocking COVID-19 WTO Waiver to Boost Vaccines, Treatments Worldwide

MSF, Oxfam, Partners In Health, Human Rights Watch, Public Citizen, MoveOn, Indivisible, Unions, Faith Groups, Citizens Trade Campaign, Health GAP, and More Urge U.S. Support for Waiver at March 1-2 WTO General Council

FOR IMMEDIATE RELEASE: February 26, 2021

CONTACT:  Matt Groch (202) 454-5111

WASHINGTON, D.C. – Today, U.S. consumer, faith, health, labor, human rights, development and other civil society groups urged the White House to support an emergency COVID-19 waiver of World Trade Organization (WTO) intellectual property rules, so that greater supplies of vaccines, treatments, and diagnostic tests can be produced in as many places as possible as quickly as possible. The pandemic cannot be stopped anywhere unless vaccines, tests, and treatments are available everywhere, so variants that evade current vaccines do not develop.

At a press conference joined by Reps. Rosa DeLauro, (D-Conn.), Earl Blumenauer (D-Ore.) and Jan Schakowsky (D-Ill.), U.S. civil society leaders released a letter signed by hundreds of prominent U.S. organizations calling on the Biden administration to join more than 100 nations in support of the waiver. The Trump administration led a handful of countries opposed to the waiver at the WTO. At two recent WTO committee meetings, the new administration has not reversed the Trump era obstruction of the waiver.

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires countries to provide lengthy monopoly protections for medicines, tests, and technologies used to produce them. While there is production capacity in every region, WTO rules block the timely and unfettered access to the formulas and technology needed to boost manufacturing. Unless much greater volumes are made, many people in developing nations may not get COVID-19 vaccines until 2024. The unnecessary loss of life will be compounded by the loss of livelihoods for millions. According to an International Chamber of Commerce study, the world could face economic losses of more than $9 trillion under the scenario of wealthy nations being fully vaccinated by mid-2021, but poor countries largely shut out.

Statements from Participants:


U.S. Representative Rosa DeLauro (D-Conn.), Appropriations Committee chair

“The COVID-19 pandemic knows no borders and the need for vaccine development and dissemination across the globe is critically important. The TRIPS waiver raised by India and South Africa at the WTO would help the global community move forward in defeating the scourge of COVID-19 by making diagnostics, treatments, and vaccines available in developing countries. We must make vaccines available everywhere if we are going to defeat this virus anywhere. The U.S. has a moral imperative to act and support this waiver at the WTO, and I am hopeful that the Biden Administration will support this waiver to help our allies around the globe bring an end to this pandemic.”


U.S. Representative Earl Blumenauer (D-Ore.), Ways and Means Subcommittee on Trade chair

“As a global community, we must come together and use every tool at our disposal to stop this pandemic,” Blumenauer said. “Unfortunately, we have seen intellectual property rules and corporate greed have disastrous impacts for public health during past epidemics, and we need to ensure that this doesn’t happen again. Working to ensure that trade rules do not stunt the developing world’s access to vaccines, treatments, and diagnostic tests is a clear step. It’s the right thing to do not only for our country, but for the entire world.”

U.S. Representative Jan Schakowsky (D-Ill.), Senior Chief Deputy Whip and Energy and Commerce Consumer Protection and Commerce Subcommittee chair

“I support the proposed TRIPS waiver because I support equitable vaccine distribution worldwide, because if vaccines aren’t available everywhere, we won’t be able to crush the virus anywhere. The new COVID-19 variants, which show more resistance to vaccines, prove that further delay in immunity around the world will lead to faster and stronger mutations. Equitable access is essential. Our globalized economy cannot recover if only parts of the world are vaccinated and have protection against the virus. We must make vaccines available everywhere if we are going to crush the virus anywhere.”

Paul Farmer, Co-Founder, Partners In Health

“If we want to stop COVID-19 here, we have to stop it everywhere. The world does not have time to wait for the usual, slow, and unequal distribution of treatments, diagnostics, and vaccines. We can take a lesson from the global AIDS movements and make sure patent laws don’t block access to lifesaving therapies for the poor. It’s a similar story for vaccines, which in the case of covid19 we’re so lucky to have and in such short order. Moderna has waived these rights and others should follow suit as we deploy one of the mainstays required to end this pandemic.”

Sara Nelson, President, Association of Flight Attendants-CWA

"COVID does not have borders and neither should vaccine access. Flight Attendants know our jobs depend on a strong global network. We must work to ensure that people around the world have access to the vaccine in order to eradicate this virus. We cannot succeed as a global community without taking care of all people."


Sister Simone Campbell, Executive Director, NETWORK Lobby for Catholic Social Justice

“We have learned over the past year that pandemics are communal struggles. We are all vulnerable, and we all can help control the virus. In our nation, over 500,000 people have died and millions have been infected. The U.S. government has invested over $13 billion in taxpayer funds to create vaccines, and other developed nations have invested as well. Now, we in these rich nations have an obligation to share with the global community. That is the only way to protect the vulnerable here and abroad. Both faith and pragmatics demand it. When we faithfully care for our neighbors, we pragmatically care for ourselves.”

Yuanqiong Hu, Policy Co-coordinator, Doctors Without Borders (MSF) Access Campaign

“Governments must not squander this historic opportunity and avoid repeating the painful lessons of the early years of the HIV/AIDS response. This proposal would give countries more ways to tackle the legal barriers to maximizing production and supply of medical products needed for COVID-19 treatment and prevention. Defending monopoly protection is the antithesis to the current call for COVID-19 medicines and vaccines to be treated as global public goods. In these unprecedented times, governments should act together in the interest of all people everywhere.”

Akshaya Kumar, Director of Crisis Advocacy and Special Projects, Human Rights Watch 

"Sharing the recipe for vaccines by pooling intellectual property and issuing global, open, and non-exclusive licenses could help scale up manufacturing and expand the number of vaccine doses made. This means instead of arguing about how to ration better we could be rationing less."

Brook Baker, Health GAP Senior Policy Analyst & Northeastern University Professor of Law

"As an expert in intellectual property law and access to life-saving medicines, I can assure the Biden administration that IP barriers are real, and they're blocking millions of people around the world from accessing life-saving COVID-19 vaccines. By obstructing the TRIPS waiver proposal, President Biden is breaking his promise to share COVID-19 vaccine technologies with the world. His administration must support the TRIPS waiver and send a message to big pharma that it's unacceptable to write off the lives of 90% of people in low- and middle-income countries."

Arthur Stamoulis, Executive Director, Citizens Trade Campaign

“Supporting this waiver is an easy way for the Biden administration to start reestablishing the United States’ standing within the international community, while also benefiting public health and economic recovery here at home. Trade rules cannot be a cudgel used to force countries into putting pharmaceutical company profits ahead of human life.”

Lori Wallach, Director, Public Citizen’s Global Trade Watch

“What is the possible upside of the U.S. blocking this WTO waiver supported by most countries given there is manufacturing capacity around the globe to greatly increase supplies of vaccines, tests, and treatments if formulas and technologies are shared? We are in a race against time with a pandemic that cannot be stopped unless vaccines, tests, and treatments are available everywhere because outbreaks anywhere spawn variants that can evade vaccines and/or are more infectious.”

Link to Recording of Full Press Conference

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Rethinking Trade - Season 1 Episode 28: What The Biden Administration Can Do To Fix Our Trade Mess, Part 2

The Biden administration inherited a political and trade policy landscape transformed since the end of the Obama presidency by both the Trump trade strategy and the COVID-19 pandemic.

To deliver on its Build Back Better promises, the administration must create new approaches to trade that prioritize good jobs, promote the environmental and energy policies needed to counter climate catastrophe, protect consumer health and safety, and promote small business by breaking up monopolies.

In part one of a two-part series, we discuss the short and middle-term steps the Biden Administration should take to accomplish these goals. Welcome to the Cliff Notes version of the Transition Memo on Trade Policy, recently released by Public Citizen and the United Brotherhood of Carpenters.

Learn more at

Music: Groove Grove by Kevin MacLeod 



Transcribed by Sally King

Ryan: Welcome back to Rethinking Trade where we don't just talk about trade policy, we fight change it. I'm Ryan, and I'm joined once again by our in house trade expert, Lori Wallach. So Lori, two weeks ago, we ran through day one and first 100 day suggestions for the Biden administration on how to fix our rotten trade policies. Today, we're going to jump into the longer-term changes laid out in the recent transition memo and trade policy that Public Citizen and the Carpenters Union put together. For the listeners, you should definitely check out part one as well. But here's part two. Lori, are you ready to answer some questions?

Lori: I am.

Ryan: So like last time, I'm going to read the headline from this document for each of these policy proposals. You're going to have about one minute to explain it to our listeners, when you hear the buzzer means your time is just about up. You ready to go?

Lori: I am.

Ryan: All right, part two, number one: Conduct an inclusive, comprehensive, transparent process to review existing trade agreements for consistency with the Build Back Better plan.

Lori: So that's kind of self-explanatory. The point is that many terms in our existing trade agreements have nothing to do with trade per se, but rather conflict with the climate and the health and economic justice focus of the Build Back Better plan. And its things as diverse as the ban on buy local or buy American procurement, which is used to reinvest our tax dollars into developing new EV electric vehicle technology or renewable energy sources domestically, it is rules to get subsidies that could help that could stop the government from investing in making more medicine domestically, it is rules about standards that could basically require us to import goods that are climate dangerous and not be able to distinguish. And so all of that stuff needs to be reviewed needs to be fixed. So our trade agreements support, not undermine the whole wide set of non-trade goals that are in the bill back better plan.

Ryan: Number two: Launch a review of USMCA implementation to develop an action plan around labor and environmental rules.

Lori: So the revised NAFTA, which Trump called the US Mexico Canada agreement, had some improvements on paper, but a lot of it still is not implemented. And there are a lot of powerful interests and elite players in the governments of the three countries that may or may not be interested in implementing all of it. So it's really important that the people and planet parts of that agreement, the labor standards, the environmental standards, water quality, etc, that a plan to make sure that stuff is actually translating from paper to improvements on the ground is created and then enforced. And that's everything from cracking down on those border maquiladora plants where workers are being forced to go back to work without COVID protections in Mexico, where unions are still being busted to making sure that the investment of water improvement funds and environmental cleanup money actually goes to where it's supposed to be.

Ryan: All right off to a good start again. Number three: Establish a position at the National Security Council focused on U.S. supply chain resilience.

Lori: So the idea here is we need an all government focus on rebuilding domestic supply chains, and also diversifying these sources of imports for critical goods. The COVID-19 crisis made clear to every American. Here we are in the richest country in the world, and we can't get basic stuff. I mean, we can't get the medical stuff like masks and enough medicine, which in itself is a crisis. But we can't get basic stuff so that if one country in a long, hyperglobalized thin supply chain, were to make, you know one product of food or one electronic product, you have to have the pieces only made each one in one country of 50 countries and one country goes down because there's sickness could be a natural disaster next time the whole thing falls apart. can't have that. This was a real lesson. And so we need coordinated plans to rebuild our resilience and to build stronger supply chains.

Ryan: Number four: Implement the Build Back better by American and other domestic preference program reforms.

Lori: So this is really actually extremely urgent. This is both a longer-term project where our new US Trade Representative will need to be negotiating with other countries to take back the policy space for how we use our taxpayer dollars in procurement that was given away and agreements like the WTO and NAFTA and CAFTA. Right now we have to treat the goods, the services, the companies from 60 other countries as if it was Buy American, so Buy American now means the US and 60 other countries. So that needs to get fixed, because that's in the terms of agreements that need to be renegotiated and President Biden has said he wants to renegotiate those so we, but also our trade partners, can use their tax dollars as a tool to develop their own economies and innovate and invest in their own people. But in the short term, the president needs to immediately wave with respect to the emergency trillions of dollars for COVID relief, and recovery, these limits that make us basically break Buy American. Otherwise, instead of stimulating our economy, instead of starting to invest in being more resilient at home, that money is just gonna get offshored. And there's no conditions on labor standards or environmental human rights conditions. So it could mean our tax dollars go to invest in, you know, goods made in horrible human rights conditions in China, or in plants have busted unions in Mexico. So this is both the short term and long term problem.

Ryan: Number five: Launch a review process to formulate a new US position on digital trade.

Lori: So digital trade is the corporate brand that the Big Tech firms have given to trying to use trade agreements to impose worldwide limits on the regulation of the Big Tech platforms. And some very bad rules like that are in the revised NAFTA, but and in an agreement with Japan that the US pushed, but also they're being pushed at the World Trade Organization for the whole world. And the US has been one of the leaders in pushing for these rules that basically mean governments can't regulate for our consumer data privacy, something that's a huge problem in the US and in many countries, but the US is way behind everyone else. It means that we can't get rid of the liability waiver. That right now means things you buy online, Amazon and other companies pretend that they have no product safety liability. So if the product kills you, you could sue a store, but you can't sue them, they pretend they're not the buyer. They pretend the seller, I mean, they pretend they're just a communications platform, and also a lot of problems around discrimination based on the algorithms that the companies use. So that, you know, white people are offered information on better jobs and black people get less information on good housing, all of those kind of rules, we have to have a new approach to because we need to regulate big tech, not let them use trade agreements, to basically abuse people worldwide.

Ryan: Number six: Implement new US Trade Representative transparency standards.

Lori: So it's not so much the USTR per se, but rather the whole agency. Historically, there has been a lot of behind closed doors, negotiation and secrets information. And these are these negotiations are making policy on things that affect all facets of our everyday lives. But unlike say the Freedom of Information Act, we can get government documents or the government the Sunshine Act, where meetings have to be open. There's a lot of secretive stuff that happens in trade. That is just inappropriate, given what today's trade agreements have meddling in from, you know, access to medicines, to food safety, to where our tax dollars go. So we need to actually have a much more open process so that people not only can get access to the information and know what the government is doing, ostensibly on our behalf but also so that we can have more of a means of giving input of what we want. Right now. There are 500 official advisors who are cleared to see the secret documents have special access, and almost all of them are corporate that can't stand.

Ryan: Number Seven: Work with Congress to update trade preference programs, including the Generalized System of Preferences or GSP, and an early reauthorization of the African Growth and Opportunity Act (AGOA).

Lori: So in addition to trade agreements, the US has what are called trade preference programs. Nice statutory programs that set terms for special, better access into the US market for developing countries that are better tariff, lower tariff rates, for instance, that are included in our global WTO commitments. And the idea that these programs is they should be development programs. And they need to have conditions are pro-development for what a country has to do to get these special market access rights. Unfortunately, over time, the agreements haven't kept up to the transformation and trade policy. So GSP has some labor standards, but they're pretty weak. And the African Growth and Opportunity Act has a variety of conditions you wouldn't want to impose on countries we're trying to help them develop. And in both instances, the programs need to be updated to basically put people and planet standards in place. But also, with the African Growth and Opportunity Act. It needs to be reauthorized early because President Trump was running around to African countries threatening it would go away, and they better sign up for a whole free trade agreement or else which really isn't in their interest or ours.

Ryan: Number eight: Work with the Treasury Department to require all foreign private-sector sovereign wealth fund controlled or state-owned enterprises seeking to list on us capital markets to meet all transparency standards to which US domestic firms are subject.

Lori: Okay, so that was a mouthful. But what that boils down to...

Ryan: That almost took me a minute.

Lori: What that boils down to is this scam, which is the Treasury Department has been waiving the requirements, particularly for a state-owned enterprise means just literally that government-owned firm. There are a lot of Chinese state-owned enterprises, but also some of you there, it's not inherently a problematic thing. You know, the US government port authorities are like a state-owned enterprise. But there are a lot of commercial ones that aren't running services like the Tennessee Valley Authority is a state-owned enterprise. But yeah, it's a government service. But the ones that are competing and trade from other countries and sovereign wealth funders, that's government money, that is investing as if it were a private investor, they're allowed to go to the stock markets, which is where the capital market is so to the New York Stock Exchange, without meeting all the normal requirements that US firms be subject to. And what this is caused is these real conflicts where Saudi Arabian state-owned enterprises and sovereign wealth funds and others from the oil-producing nations, and Chinese state-owned enterprises are buying up US firms that might have a security concern with such ownership or countries with really horrific human rights reputations are buying up sensitive firms and we don't know and or they're getting money on the capital markets, without us knowing. So something's being listed. And we're having us stock buyers put money into it and make it powerful. We don't know who it really is.

Ryan: Number nine: Direct the Department of Commerce to declare that China is not a market economy.

Lori: So this is another kind of wonky thing, but it's actually has a lot of repercussions. How you ask domestic trade policy works with respect to different trade, cheating remedies, like dumping stuff on the US market, below the price of production, that and also how a country is treated at the World Trade Organization has to do with whether or not a country is considered a market economy. If you're a market economy, you get kind of treatment the US, Canada, Brazil, India, Japan, Korea, South Africa get but if you're not a market economy, ie you have a lot of government intervention, a lot of government funding. So you know, a country like China, then you are treated with, I would say, more wariness about what's a subsidy and what isn't? What's fair trade and what isn't? And so it's going to make a big deal for US jobs. And for US companies, especially those that try and create some new US investment in things like electric vehicles and battery storage, new materials, the cutting edge industries, that it's clear, China's not a market economy and they need to be treated that way. And China has been making a lot of threats about if countries don't declare the market economy, they're going to do this or they're going to do that. And so far all the world's countries have stuck together and said, if you're a market economy you are but you're not so you're not and that should stay the current position.

Ryan: All right, we are at the final one number 10: Don't continue with business as usual with respect to publishing a national trade estimates report that includes lists of other countries environmental food, safety, health. and other public interest protections identified as, quote, illegal trade barriers.

Lori: So every March 1, the US government comes out with a report called the National Trade Estimates. It sounds like innocuous, it's not. It's a country-by-country report where, in the course of the year leading up to it, US industry is invited to offer things that they think are unfair trade practices of other countries. And they get listed in the official government report of things these other countries better get rid of. And so the problem is, it ends up being a list of, you know, there are some real trade problems in there, like subsidies or, you know, things that act like a quota a limit on imports, that aren't health or safety-related, and they're honest to god protection. But the vast majority of what is in this report is just targeting the environmental, health, worker safety, food safety, product safety, and other public interest protections that other countries have. And that won't be if they're if the US product has GMOs, and the country requires labeling, if it comes in, if it's not labeled, it can't come in. If another country, for instance, bans the use of chlorine washes, you know, basically crappy chicken, chicken that least liras, feces on it, dipped in chlorine, which is how our system works versus making sure it's clean on the front end. If it can't come in, it can't come in, if other countries will not, for instance, store computer data through the US, because we don't have any privacy protections. And we're not considered safe for that. All right. And so be, as long as it's not discriminatory, it shouldn't be on a trade shit-list. And that is what that national trade estimates list has become. And instead, it should focus on whether real trade problems, where there's actually a benefit for us workers to fixing real trade cheating and not become a hit list of other countries domestic policies that our companies don't like because some products they make can't be sold there.

Ryan: Good work, Laurie, I think you got 50% of them and under a minute. And again, folks should check the link in the summary of this episode, or just go to And you can see the transition memo on trade policy.

Lori: And for all the fun that Ryan and I are having about my trying to say what this means each of these bullets in one minute. It's worth reading the memo because it does spell out a roadmap to how we could have a US trade policy taking the opportunity of an incoming administration that seems keen to change some things to actually try and have policies that put people on the planet as a priority.

Ryan: Rethinking trade is produced by Public Citizen's Global Trade Watch, I would encourage you to visit as well as to educate yourself and to find out how you can get involved in the work we're doing to fight for fairer and more equitable trade policies.

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Rethinking Trade - Season 1 Episode 27: President Biden Should Reverse Trump's Deadly Obstruction of Global COVID-19 Vaccines

Millions of people around the world may not get COVID-19 vaccines until as late as 2024—unless President Biden reverses the Trump administration’s deadly position at the World Trade Organization (WTO).


Transcribed by Sally King


Ryan: Welcome back to rethinking trade where we don't just talk about trade policy, we fight change it. I'm Ryan and I'm joined once again by our in house trade expert, Lori Wallach. Do you all remember the episode we did back in December about how rules at the World Trade Organization were preventing countries across the world from accessing the technology they need to produce COVID-19 vaccines and treatments and how the Trump administration had led the way in opposing a proposed waiver to temporarily on an emergency basis allow those countries to access that technology? Well, unfortunately, the situation has not changed even though Trump is out of office. So we are re-releasing that episode today. But before we go back to it, we're going to hear from Lori and get an update on the situation and hear a little bit about some of the campaign work that we are involved with to try to change the U.S.'s position at the WTO regarding these intellectual property protections for Big Pharma. Lori, why don't you just give us an update on what's happening and why this is so important right now.

Lori: So two really important things have happened since we last talked about the WTO rules that could really undermine the necessary supply of COVID vaccines and treatments and testing worldwide. Number one, the WTO had its first meeting since the by the Biden administration entered office. And unfortunately, it does not appear that the memo got to the permanent U.S. WTO staff sitting in Geneva, there has not yet been a new U.S, Trade Representative confirmed; she's going to be great. And there's no new U.S. WTO ambassador to give political marching orders. So that crew that is in Geneva all the time at the WTO just repeated the same old bad old pharma defense that Trump had been dishing out, which is basically, "Yeah, there's no need to change these WTO rules to make sure that the developing world also gets vaccines and gets treatments. We're just going to make sure that all these pharmaceutical companies get these monopoly rights." And you know, no shocker. The U.S. officials did not mention that these vaccines that the U.S. pharmaceutical companies they touted developed, were funded by us, the taxpayers. Yes, these companies did not put their own money up. They got U.S. government money, ie our tax dollars for the development for billions in pre-purchases to cover the expense of the testing, etc. So if there's ever been a time that a waiver of Monopoly rights about where and how much of something is going to be made, as far as medicine and its price, the vaccines for COVID would be the case. So unfortunately, new administration, but not yet a new position. And that's what's going to take everyone's activism. So as Ryan said, we have a petition going on about this, there are other things everyone can do. In addition to signing onto the petition, please consider calling your member of Congress, because here's the second development, it has become incredibly clear that no one anywhere will be safe from COVID. And this epidemic cannot be stopped in any one country, because we have all witnessed variants, mutations of the original virus that are developing wherever there are major outbreaks. And if we do not get vaccines to people around the world, we can vaccinate ourselves 100% in the U.S., but we're going to see a variant a mutation that's not going to be subject to that vaccine. Hell, that could reinfect people have antibodies from surviving new original COVID and anytime there's a chance of huge outbreaks there's a huge chance of more mutations. And the most recent studies suggest people in middle and low income countries won't be able to get vaccinated until the end of 2022. And people in the poorest countries until 2024. That means if we're being really self centered and thinking about just what it means for us, we in the U.S. 100% vaccinated, let's just say, will not be safe. If we do not get these TRIPS, rules waived. At the WTO, so that as much vaccine can be made in as many countries as possible, as quickly as possible so that everyone can get vaccinated, everyone can get tested, everyone can get treated, no one will be safe until everyone is safe. And right now, these WTO rules are a big impediment to all of that. So please help get the word out, help get the U.S. to join the rest of the world and do the right thing. The fix is not a heavy lift, the U.S. just needs to stop blocking the initiative by South Africa and India as the WTO that now has more than 100 countries supporting it. So that more vaccine more treatment, more testing can be produced worldwide. 

Ryan: You can find the link to the petition in the description of this podcast episode, or you can go to or You can find the petition there, sign it, share it with folks. And stay tuned, because what's following is our episode from December where we take a bit more of a deep dive into this issue.

Lori: So let's take one step back. The World Trade Organization enforces a dozen plus agreements, including the old trade rules, which are called GATT, the General Agreement on Tariffs and Trade, that's the part that really is about trade. One of those other agreements is the thing you just mentioned Trade Related Intellectual Property Rights, which is often called TRIPS. That is basically the antithesis of free trade. That is a set of monopoly protections every WTO signatory country is obliged to guarantee to big pharmaceutical corporations. And that includes a guarantee of a 20 year monopoly. For any medicine, it creates periods of exclusivity over the data use to prove a drug is safe, so that the generic manufacturers sometimes have to wait even longer. All of those kinds of rules, of course, are really the opposite of what you think of for free trade, right competition. Those are rules designed to block competition to give monopoly powers to big pharmaceutical firms, they can charge any damn price they want for medicines. So in the face of having that imposed on 160 countries worldwide, we're all but the least developed countries are required to have these very stringent monopoly protections for big pharmaceutical firms. A set of countries led by South Africa and India, came in with a proposal now supported by dozens of countries. And that was to waive those pharmaceutical company, monopoly rights for temporarily anything during the COVID crisis that is necessary for the production of treatments of vaccines and the technologies around the production. So the actual medicines, and also the know-how to produce them. And it's really obvious why to do this, we need to get billions of doses of vaccines, hundreds of millions of doses of treatments. And the only way the whole world is going to get better, is if the whole world gets better. It's an epidemic. So it's actually in the interest of people all around the world to get enough of the vaccine made, so that there's no one who can't get it and quickly. But right now, the way the WTO rules are set up, if a country, for instance, simply copied the vaccine, or insisted that the company provide the know-how for how to copy the vaccine, then it would be in violation of these WTO rules. And a country's imperative to save lives, would subject the country to indefinite trade sanctions. So a developing country would have huge penalties billions of dollars put against its actual exports needed to keep its country going, because they put people's lives first.

Ryan: And what would that process actually look like if a country was held in in violation?

Lori: Well, let's just be super concrete, because sadly, this is not the first time this has happened. During the peak of the AIDS epidemic, when hundreds of thousands people were dying, antiretroviral treatments were available, but they were so prohibitively expensive, that throughout the developing world, in Brazil and South Africa, people were dying needlessly for whom if generic versions of these medicines could have been produced, their lives would have been the life of a person in the U.S. or Europe, with with AIDS which is basically the anti-retrovirals would make it a treatable perennial but treatable disease. Instead of having a chronic treated disease, people all over the global south are dying. And countries started to want to make their own medicines and some developing countries have the capacity India can do it. Argentina can do it South Africa, Brazil, and the United States on behalf of its big pharmaceutical companies basically threatened to go to the WTO and attack those specific countries for violating these trade agreement. pharma monopoly roles, instead of basically helping those countries try and save the lives of their people who had HIV or AIDS. And that case ended up blowing up because that was folks who remember, when Al Gore was running for president, people from act up, were following him around busting into his event screaming "greed kills." Well, that was a WTO TRIPS case, that was the gift them to back down the clinton ministration on these attacks using the WTO against HIV/AIDS medicines. So what happens with the sanctions is practical, one of these WTO tribunals decides that some country's health law is a violation of the WTO rules. And then the country is told you have 90 days to get rid of that regime for making medicine available that pharmaceutical generic company, and if you don't, then we're going to impose penalties on all of your exports. What that means practically is, for instance, every good that a developing country would export would be hit with a huge tariff on the way into other countries. So that basically, it's like a strangle. It's basically we're gonna choke you to death if you don't change. And we're going to do that by cutting off your exports.

Ryan: I know there's an effort underway right now to pressure the U.S. and other countries to support this waiver at the WTO and prioritize responding to the pandemic over protecting Big Pharma intellectual property rights. But ultimately, who has the power to change the U.S. position here? And also, what are the prospects of this position changing under the incoming Biden administration?

Lori: Ryan? That is exactly the question to ask. So the who has the power to change this? This is a position that's taken in the executive branch. It doesn't require Congress to pass anything. Whomever is the president and the president's top trade official, the U.S. Trade Representative decides the positions the United States will take at the World Trade Organization, the United States sits in a council it's called the general council with the other countries who are signatories to the WTO. The general council takes positions if the United States, which under the Trump administration has joined Europe and handful of other countries who are the homes of the big pharmaceutical corporations to block this proposal if the U.S. change sides, something the Biden administration could do without Congress again, and then what it would look like is, the instructions go from the White House to the U.S. representatives at the WTO in Geneva. And they go to that meeting, which the next one right now their meeting, we're going to say the wrong thing, the U.S. has been to say the wrong thing. So when it meets again, in January, that General Counsel, the U.S. can go in and say we now join those countries that want to temporarily waive the WTO special monopoly protections for Big Pharma. It's a temporary waiver until the epidemic crisis is over. It only applies to those medicines and technologies with respect to vaccines and treatments for this crisis. But we join putting public health first that's all it would take. And who can make that happen? Well, that's us. So we all need to be taking action to contact our members of the House or members of the Senate. And frankly, as soon as Joe Biden is sworn in the White House, which will be taking, of course the usual hotline, emails and letters, and the reason to get Congress engaged as this is not a one off. So these WTO rules in this particular waiver is extremely urgent. It's literally going to make the difference between life and death for people all over the world in relation to the COVID-19 epidemic. But this is a fight that we started with the NAFTA renegotiation, when we got the most extreme Big Pharma giveaways that Trump added to the old NAFTA making it worse, we got that out. But we need as the United States of America to have a new position about these kinds of pharma protections in trade agreements, they don't belong there at all. It's not just the WTO rules should be waived, but rather we need to negotiate these terms. So we're putting people's health first. Yes, we want to reward innovation. So when a company comes up with a great invention, there are ways to reward that, but the amount of time and what the balance is between people getting access to medicine, and the gluttonous profits that these Big Pharma companies make is a real problem. Because this is something where on the first day the Biden administration can show they're going a different way on trade. They're going to put people over profits, they're going to put health over Big Pharma. And this is one of those things they can do on their own if we all join inand push them to do it. 

Ryan: And if you go to, you can scroll to the bottom to the take action section and you can send a letter from there to your representative and senators. And on the eyes on trade blog. You can also which I'll link in the bio of this episode, you can read more about the WTO trips issue. Rethinking Trade is produced by public citizen's global trade watch, I would encourage you to visit as well as to educate yourself and to find out how you can get involved in the work we're doing to fight for fairer and more equitable trade policies.

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Rethinking Trade - Season 1 Episode 26: What The Biden Administration Can Do To Fix Our Trade Mess, Part 1

The Biden administration inherited a political and trade policy landscape transformed since the end of the Obama presidency by both the Trump trade strategy and the COVID-19 pandemic.

To deliver on its Build Back Better promises, the administration must create new approaches to trade that prioritize good jobs, promote the environmental and energy policies needed to counter climate catastrophe, protect consumer health and safety, and promote small business by breaking up monopolies.

In part one of a two-part series, we discuss the short and middle-term steps the Biden Administration should take to accomplish these goals. Welcome to the Cliff Notes version of the Transition Memo on Trade Policy, recently released by Public Citizen and the United Brotherhood of Carpenters.

Transcribed by Sally King


Ryan: Welcome back to rethinking trade where we don't just talk about trade policy, we fight to change it. I'm Ryan, and I'm joined once again by our in house trade expert, Lori Wallach. So, Lori, we're recording this in the very first days of the new administration. And as much as the joy as it was watching Donald Trump leave the White House last week. This week, we are focusing on the hard work ahead of us. Importantly, we're not just talking about fixing the damage brought on by Trump, but by decades of corporate rigged trade policies. So Public Citizen and the Carpenters Union have just released a lengthy transition memo and trade policy which you helped author. The memo lays out a lot of suggestions for fixing US trade policy. So I suggest listeners follow the link in the description to read all of it. But today, we're going to do a sort of 20 questions style episode covering the memos day one and first 100 day suggestions for the Bible administration. Before we get started, though, Lori, maybe you can just give us a bit of an overview of the vision laid out in this memo,

Lori: I think it could be useful to first start with a little bit of that context. The Biden administration is inheriting a US trade policy and political landscape that has been transformed since the end of the Obama presidency by both Trump and COVID-19. So the COVID-19 crisis, and really the inability of the world's richest country to make or get essential goods in the face of crisis has awakened a lot more Americans two fundamental problems with the current trade regime concentrating production, a few low wage countries, and having destroyed 60,000 us manufacturing facilities in the last 25 years and the hyperglobalisation. That's been implemented by agreements like the World Trade Organization, and NAFTA, that have left lots of countries really not all resilient, lis supply chains stretched super thin. So lots of countries just couldn't get self or gear up to make the stuff they needed. And then you have the Trump effect of Trump becoming president, by connecting to many Americans real anger, about the good manufacturing jobs that are trade policies implemented by Democratic and Republican Presidents alike, have killed and what it's done to cities and towns across this country, to have the almost 70% of Americans in the workforce without a college degree. See their lives go from a middle class, livelihood to scraping by and uncertainty, and that anger was seized by Trump. But then Trump failed to implement the critical changes that were necessary to really significantly alter the outcomes of US trade policy. Now, on the one hand, there is one really good thing, which is Trump's Trade Representative Robert Lighthizer. managed to create an enormous amount of leverage pushing in the right direction generally. And the new Trade Representative, a very capable person and Katherine Tai will inherit a bunch of that leverage the outstanding tariffs against China, the revised North American Free Trade Agreement, which has some good stuff, but isn't getting enforced yet. There are some big problems with the enforcement. So there's some good stuff to work with at the World Trade Organization, as well, where there's a bunch of new leverage because of what light hyzer did. So when you then look at what is it exactly that ought to get done? It boils down to something really simple. We really need to change us trade policy to promote not undermined the major domestic policy goals, like dealing with good jobs and decent wages and the underlying economic inequality and racial inequality that has been exacerbated by years of outsourcing good middle-class jobs, and the weakness and frailty in our health and economic security that we have seen with the loss of the ability to make stuff. And making sure in the middle of a climate crisis that is a planetary imperative to deal with. We are harnessing our trade policies to cure the climate crisis, not as has been the past make it worse. And as we face all of the simultaneous challenges, our current trade policies conflict with a lot of the policies that this administration says we're going to implement things that countries around the world say have to happen. And so the highest of the top-line agenda is, we have to get rid of the policies embedded in our trade agreements by corporations who rigged the rules, that undermine good jobs and affordable medicine and a livable planet. And then we need to put in place the missing roles that prioritize people in planets so that the global economy is harnessed to work for us not to make a handful of really big corporations even richer.

Ryan: And we're going to get into the specifics about how to do that. Now, how I structured this Lori is it's going to be like 20 questions, but really 20 statements. And I'm going to read the headline from the transition memo for each of these proposals. And then you're going to have one minute to explain to our listeners the context of each one. I'm going to set a buzzer on my phones when you hear the buzzer. Time is up, we're almost up. So you have to wrap up. Are you ready? 

Lori: I'm really nervous but ready.

Ryan: It's like a game show. Lori: Dun, dun, dun dun, Ryan: A very geeky game show. Okay, this is for the day one immediate stuff. Number one: nominate a US trade representative who is suited to the mission of transforming US trade policy towards a pro-worker, pro-small business, pro-health and pro-environment focus,

Lori: Ding, ding, ding. That was done. Katherine Tai is a terrific nominee for the US trade representative's office, who will hopefully be quickly confirmed. She is very knowledgeable. She has the right perspective and thinking about how to fix our trade policies. So it works for people on the planet. She's very hard-working, she's very strategic. She is the best Democratic nominee for USTR. That could have been possible. So check the box that was done.

Ryan: We are off to a good start number to launch the buy American Trade Pack plan described in the Build Back Better plan.

Lori: So that one is a little bit more of a mixed story. The good news is on the 25th of January, the President issued an executive order that covered most of the territory of what needs to be done. But that executive order did not actually do the things that are necessary to improve the policy. So it will be a matter of watching closely about whether they follow through on a lot of the things that they said they would do in this executive order. If they do it could make a big difference. The big issue here is that the President's about to spend almost $2 trillion in very much needed COVID stimulus emergency relief. But if they don't close the loophole that currently has 60 other countries treated like by American thanks to trade agreements, they no longer that money is going to get offshored instead of being invested back into our job. And it won't stimulate the economy.

Ryan: And folks can see the public citizen statement on the buy American executive order at Number three, issue an executive order to remedy abuses of de minimis import provisions by big tech platforms.

Lori: It sounds complicated, but it's not. It's a loophole. The big online sales platform slipped into law in 2015. That means that every day you can bring in imported $800 of stuff with no tariffs, no taxes, no inspection. The trick is the Amazon and the other platforms have it set up so that you the customer, not them, the company is considered the importer. What does that mean? They're bringing in hundreds of millions of packages by air that don't get inspected, that don't get taxed. It's dangerous for the consumer. It's not fair to the brick and mortar store that actually has to pay the taxes when they bring in the three $700 bicycles. They're paying tariffs and taxes and having that stuff all inspected. But if we each individually buy those two bicycles. Amazon's making windfall profit, and it's not fair and it's not safe and it's easy enough to fix. We just have to do it.

Ryan: Okay, number four, announced that the new USTR will consult with Congress stakeholders and allied countries to develop a comprehensive us approach to the future of the World Trade Organization.

Lori: And then there's an additional thing and will not support appellate body appointments during this process. So that's the punchline that's very important. The previous administration stomped along the appointment of the final judges at the WTO. These are the folks who basically order countries to change their laws if their food safety standards are too high, or their financial regulations are too strong, or their environmental laws are too protective of the planet. And so there was a bunch of cases where these on appointed international lawyers in Geneva were just making stuff up and making countries change laws. And it wasn't even stuff countries that signed up to at the WTO. So right now, we need to figure out before the US starts approving new judges how the rules need to get changed both the procedural rules and the substance. So what we need here is a policy where we basically have a big conversation, what are the goals of the WTO? Heck, it's already 20 years old anyway, it hasn't worked out well. So what rules do we need to change what procedures should be changed, and we shouldn't start up the whole thing, again, to attack our laws and undermine our goals unless and until we know how to fix it.

Ryan: Number five, announced a moratorium of any new trade agreements until a comprehensive review has been undertaken to develop a new trade agreement model.

Lori: So the administration committed candidate Joe Biden committed that they weren't going to do any more trade agreements and less until they had made major investments in domestic infrastructure worker education and training and manufacturing capacity. And the idea was to get our house in order before we write new agreements, but also to make sure we have agreements and new way of doing them that promote goals like good jobs, good wages, etc. So the big question is, will they stick to that 100%. And what that would mean is not picking up the trade agreements that include a lot of really problematic goodies for big tech and Big Pharma and the financial services, the Wall Street guys, there are agreements being negotiated right now at the United Kingdom, and with Kenya, that are not the right model. And this moratorium needs to apply to those need to go into the deep freeze, if not the recycling bin. And then there's a really worrisome agreement, global wine at the WTO, that would have all kinds of new rights and privileges for big tech firms that you couldn't regulate them, they could basically have their way with our privacy, etc. And that needs to also be part of the moratorium.

Ryan: Number six: Direct US Customs and Border Protection to issue a regional withhold release order on all-cotton goods imported from the Zhenjiang region of China.

Lori: So this is easy and quick, that's actually got done so this administration just needs to keep it in place. What that means is basically an assumption that goods that come from that region, are made with forced labor in these abusive prison internment camps that the Chinese government has filled with ethnic Muslim minorities from the region. And you have to prove as the importer, that the production chain is without forced labor, its assumption that it can't come in unless you can prove it's not forced labor. And that creates basically pressure on China to reverse its behavior.

Ryan: Number seven: Announced that existing tariffs on Chinese goods will be maintained while the new administration develops its demands with respect to Chinese subsidies, currency misalignment, and labor and human rights abuses.

Lori: So this is like the WTO situation. You have leverage going in as a new administration. In this case, it's 30% tariffs on $350 billion worth of stuff. And as you can imagine, all the corporate lobbies are screaming take off, the tariffs take off the tariffs, except those tariffs are leverage. China's imports to the US have declined in the sectors that have the tariffs on them. And it is a problem. It is a problem that Chinese elite in the government and industry want to have go away, which is to say they might be willing to do some things to make them go away. The previous administration was prioritizing things like better intellectual property protections for companies operating in China, or easier investor terms in China. These would not be things that help US workers. Those are things that actually are counterproductive. They make it easier to offer So the question is, let's get our policy of what, which certainly is going to focus on things like labor rights and human rights and wages, currency, and not have those tariffs given away without trying to use them to improve the policies.

Ryan: Number eight: issue a de Marche to countries in the UN Commission on International trade laws ISDS Working Group regarding current and future Investor-State Dispute Settlement rules.

Lori: So there's been so much opposition growing against Investor-State Dispute Settlement ISDS, that the law, the corporate law firms, and some of the big oil companies that like to use that system, which empowers individual companies to go before a tribunal of three private lawyers to demand unlimited compensation paid by US taxpayers, from any government for any perceived violation of an investment agreement, or the investor rules in an agreement like NAFTA, just under NAFTA, over $400 million has been paid out and attacks against environmental policy, health policy, etc. So the guys who like that outrageous rigged system, realize they're in trouble. And they went to UNCITRAL, that UN body, which is one of the places where they take these cases, to really try and get off the steam. And the idea was to pretend that they were talking about reforming ISDS to try and distract the opposition. And instead, they decided to make that a place to try and lock in a new form of ISDS. And so the US needs to make clear, a written position that the US is no longer for ISDS and isn't going to join up in that farce.

Ryan: Number nine: Issue a démarche to all nations that now qualify for the African Growth and Opportunity Act or AGOA, or that could qualify, clarifying that the program is not about to be terminated.

Lori: So what this is about is President Trump making threats, including in a meeting with the president of Kenya, that the African Growth and Opportunity Act, which is a policy, it's not a bilateral agreement, it's a policy, where the United States passed a law that says African countries from Sub Saharan Africa, if they meet certain criteria can have duty free access into the US, and basically have terms of trade better than what a lot of other countries might get in the World Trade Organization. And the idea was for it to be a development program that wasn't cash aid, and to help build diversified economies now, Africa, and that policy sunsets in 2025, the current extension, but it's been extended in 10-year chunks, repeatedly five-year chunks a couple of times. It's just it's not controversial. So President Trump was trying to get the president of Kenya to sign up for a free trade agreement where instead of having this access, and you would have to basically have a lot of obligations to US corporations to get the same old access. And it's really important countries in Africa realize that program is not going away. They don't need to make a deal that's bad for their people just to keep what they already have.

Ryan: We're at number 10. This is the final one for the day one. Number 10: Issue an executive order reaffirming that US trade officials are prohibited from promoting tobacco sales, reducing tobacco tariffs, or seeking to undermine the regulation of tobacco products.

Lori: So what that's about is what's called the Doggett Amendment, which was a prohibition from almost 20 years ago, and US trade officials promoting big tobacco. Sadly, during the Obama era, they basically ignored that. And they did a bunch of stuff that was really pro-tobacco in agreements like the Trans-Pacific Partnership. So the idea is to reaffirm that US trade negotiators aren't going to be pushing deadly tobacco products and other countries in our trade negotiations.

Ryan: You did it!

Lori: So that was that 10th item of what was supposed to be the first-day agenda. Given I couldn't even summarize each of the 10 items in one minute. Obviously, no matter how good an administration they couldn't get all that done in the first day. So first day is kind of a term of art for meaning the most urgent short term things that have to happen. And we just got an overview of all the things to set up a good trade policy going forward. And there's a lot of work to make sure that still happens.

Ryan: And stay tuned for part two where we're going to do the first 100 day top 10 rethinking trade is produced by Public Citizen’s Global Trade Watch, I would encourage you to visit as well as to educate yourself. You can find out how you can get involved in the work we're doing to fight for fair or equitable trade policies.

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