Magic and Hope: Relaxing Trips-Plus Provisions to Promote Access to Affordable Pharmaceuticals

Abstract: Competing interests and values collide at the intersection of public health, international trade, and intellectual property. Although highly successful in securing rigid patent protection provisions in the Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS), the United States was dissatisfied with features of the agreement. In response, the United States began to negotiate bilateral free trade agreements which, while compliant with the TRIPS Agreement, include unflinchingly rigid intellectual property provisions. This Note argues that invidious "TRIPS-Plus" provisions in U.S. Free Trade Agreements, which require greater patent protections than the TRIPS Agreement, obstruct access to affordable pharmaceuticals desperately needed by impoverished populations around the globe. To encourage access to affordable drugs in low-income countries, the United States should amend its free trade agreements by incorporating a balancing test to determine when it is necessary to relax rigid trade provisions.IntroductionOn November 7, 1991, Earvin "Magic" Johnson, an all-star basket- ball player for the Los Angeles Lakers, announced his retirement from the National Basketball Association (NBA).1 Johnson had recently been diagnosed with the Human Immunodeficiency Virus (HIV), which causes Acquired Immune Deficiency Syndrome (AIDS).2 Winner of five NBA championships, a twelve-time All-Star, league most valuable player (MVP), and three-time NBA Finals MVP, Johnson was at the pinnacle of his profession.3 Disclosing his diagnosis shocked the world and many thought the end of Johnson's storied NBA career also meant the end of his life.4 After all, in the early 1990s, treatment for HIV/AIDS was rare and diagnosis was considered a death sentence.5 In fact, before 1996, an estimated fifty percent of those diagnosed with HIV would develop AIDS within ten years.6Twenty years later, Johnson is a thriving fifty-two-year-old.7 On No- vember 7, 2011, Johnson celebrated with athletes, politicians, research- ers, and celebrities as his foundation pledged a one million dollar gift to promote continued HIV/AIDS awareness and testing.8 Upon his ini- tial diagnosis, Johnson took nearly twenty pills a day to manage the dis- ease, but thanks to breakthroughs in the pharmaceutical industry, Johnson is now on highly effective antiretroviral therapy (HAART), which requires only a few daily medications.9 Antiretroviral therapy prolongs life and improves the health of those infected with HIV/AIDS.10 On that somber November day in 1991, Johnson defiantly proclaimed that he would "'beat the disease.'"11 Twenty years later, ac- cess to HAART has enabled Johnson's proclamation to ring true.12A world away in Bwindi, Uganda, Hope Tukahirwa has not been as fortunate.13 Tukahirwa's husband and son both contracted AIDS and died before HAART was even nominally available in sub-Saharan Af- rica.14 Like Johnson, Tukahirwa contracted HIV and currently receives antiretroviral therapy.15 Unlike Johnson, however, Tukahirwa's access to HAART hangs in a tenuous balance as trade laws dictate her ability to procure treatment.16 Tukahirwa understands that HAART has pro- longed her life and she expresses concern about the effect of trade laws on her access to this life-saving therapy.17 "'In the old days, people were dying like rats. The drugs were too expensive and if it happened again we would be back in the old days.'"18Infectious diseases plague the developing world.19 By the end of 2009, an estimated 33.3 million people were living with HIV/AIDS.20 Of that total, 22.5 million live in sub-Saharan Africa, 4.1 million live in Southeast Asia, and 1.4 million live in Central and South America, demonstrating a disproportionate impact on low and middle-income countries (LMICs).21 In 2009, approximately 1.8 million people died from AIDS-related causes, contributing to an estimated 16.6 million children orphaned from HIV/AIDS.22 The disease continues to spread as approximately 2. …