Covid-19: Profit at all Costs
In 2009, during the H1N1 (i.e., swine flu) crisis, a real race for vaccines took place, against a backdrop of production capacities which, according to projections, were insufficient to cover the entirety of the need at the global level. In 2009, Switzerland and other wealthy states were placing pre-orders with producers of H1N1 vaccines, including Novartis, even though these had not yet been approved. For Switzerland: 13 million doses intended to cover 80% of the population, at a total cost of 84 million francs. This was a question of being able to cover one's own national needs in the face of a planned shortage. While this ‘law of the strongest’ reigned supreme, for the countries of the South and East, only crumbs would remain, if anything at all.
The issue of national priority was to remain topical, even more so as treatments and vaccines against Covid-19 were launched, inevitably in limited quantities.
The fine words of both the pharmaceutical companies and the rich countries (such as Switzerland) hosting them, who claimed that everything was different this time, given the scale and urgency of the pandemic, soon proved hypocritical.
Thus, already in May 2020, the World Health Assembly, made up of the 194 Member States of the World Health Organization (WHO), adopted the resolution WHA73.1 calling for "universal, timely and equitable access to, and fair distribution of, all quality, safe, efficacious and affordable essential health technologies and products required in the response to the Covid-19 pandemic". However, this text was considerably watered down during negotiations, especially at the initiative of Switzerland, which tried to remove the notion of "public goods", without success. In 2021, Switzerland attracted attention by trying to massively weaken another WHO resolution meant to improve access to pharmaceutical know-how and manufacturing rights for decentralised production in Africa.
Covid-19 has taken a heavy toll on health, livelihoods and social life around the world. It hit with its full force the most vulnerable populations around the world and particularly those in low- and middle-income countries. National measures are incapable of fighting a pandemic; efforts need to be coordinated across countries. Unequal access to Covid-19 vaccines, diagnostics and treatments has had – and continues to have – devastating consequences, especially in less privileged countries.
Below is an overview of our demands and actions throughout the pandemic, calling for a united Switzerland and for equitable access to Covid-19 resources all around the world.
1) Pooling resources to fight Covid-19 (WHO pool)
As early as March 2020, Public Eye and its allies supported Costa Rica's call for the establishment of a mechanism for the pooling of rights, data, know-how and other manufacturing processes relating to all medical technologies necessary for the prevention, detection and treatment of Covid-19 at the level of the World Health Organization (WHO). Such a mechanism would ensure access to diagnostic tests, drugs, vaccines and other equipment necessary for fighting coronavirus at the global level and ensure equitable distribution. This 'pool' was officially launched at the end of May 2020 under the name C-TAP (Covid-19 Technology Access Pool), but it did not receive any support from the pharmaceutical industry, nor from the States that host them, including Switzerland. Public Eye repeatedly appealed to the Federal Council, through open letters or via a joint petition with Amnesty Switzerland supported by more than 20,000 people, for Switzerland to join the C-TAP knowledge-sharing programme and to encourage pharmaceutical companies based in Switzerland to join it. Two formal questions were also submitted on these subjects during the extraordinary session of Parliament in May 2020.
All these initiatives were in vain, as Switzerland neither joined nor even supported the WHO C-TAP initiative. Our government did not consider it useful and blindly trusted the voluntary commitments made by the pharmaceutical companies, while claiming a lack of " practicability in the proposed approaches (e.g., global licensing agreements) ". Briefly: Switzerland showed very little solidarity and once again, extreme fearfulness of a negative reaction from its pharmaceutical should their sacrosanct exclusive rights that are the basis of their source of income be questioned. The fact that our letters to the Federal Council remained unanswered for such a long period showed a certain level of embarrassment on the part of our government, as always when it comes to intellectual property and access to medicines.
2) COVAX, a doomed initiative
Instead of the C-TAP pool, Switzerland preferred to support the initiative called ACT-Accelerator, providing for an international vaccine-sharing mechanism called COVAX, because it offered the advantage – for rich countries hosting pharmaceutical giants – of not questioning intellectual property. However, it is precisely the latter that prevented the sharing of knowledge and the rapid multiplication of sites for the production of urgent medical goods. COVAX had to struggle to obtain its own doses due to limited production and the multiplication of direct agreements between affluent countries and vaccine producers and therefore had to seriously revise its targets downwards. An external appraisal of the ACT-A initiative conducted in 2022 concluded that a different approach was needed in a comprehensive pandemic response and should not be replicated in future, and that the issue of inadequate technology sharing and decentralised production were key factors in the initiative's less than satisfactory performance.
Public Eye repeatedly reiterated that a solution to the problem of intellectual property was needed, through forums in the press or in its publications. Nonetheless, the Swiss government preferred to turn a blind eye, continuing to favour the profits of the pharmaceutical industry over equitable access to Covid-19 mitigation resources.
3) Waiver of WTO rules ("TRIPS Waiver")
In the face of the planned shortage and the lack of support for the C-TAP pool, India and South Africa submitted, in October 2020, a request for a temporary Waiver of the Agreement on Intellectual Property Rights (TRIPS) for Covid-19 technologies, as provided for under the rules of the World Trade Organization (WTO) in exceptional circumstances.
If accepted, a TRIPS Waiver would allow each WTO member state to disregard intellectual property for the mitigation measures for the entire duration of the pandemic. Put simply: a local firm, with the necessary know-how, would be allowed to produce tests, treatments or vaccines without having to spend a long time negotiating a license (sometimes in vain).
The countries hosting the pharmaceutical giants, including Switzerland, consistently opposed the TRIPS Waiver, claiming that patents were not an obstacle during this crisis. This is not true, and many patents were actually granted, especially for Covid-19 vaccines (Moderna and Pfizer are indeed in the middle of a legal dispute).
Opponents pointed to existing mechanisms, such as voluntary or compulsory licensing. However, the former, when granted by pharmaceutical companies, are exclusive and geographically restricted. Whereas a compulsory licensing procedure – according to which a state authorises the marketing of generics despite the existing patent to serve the public interest – varies depending on national legislation, concerns only one product in a specific market and creates strong diplomatic pressure on countries wishing to operate it.
Through a TRIPS Waiver, all these obstacles could have been avoided. Therefore, Public Eye and other NGOs have repeatedly called on the Swiss government through open letters, a petition and other public actions to stop blocking the Waiver supported by a hundred countries, by the WHO, as well as by many international organisations and personalities.
Only after twenty long months of discussion, an agreement was reached at the WTO Ministerial Conference in Geneva. First scheduled for December 2021, then postponed to June 2022 due to the pandemic, the WTO Conference ended up delivering a negligible outcome. The decision related only to patents, and only concerned vaccines. Therefore, it excluded treatments and diagnostic tests, which are equally important, as well as trade secrets or the protection of registration data, which are essential in order to be able to multiply production sites. Furthermore, the agreement does not include temporary lifting or new intellectual property provisions, but reminds Member States of an already existing provision: compulsory licensing. In other words, the agreement reminds countries that, should they wish to do so, they can ask the competent authorities to rule on the lifting of patents only on one vaccine at a time. It's a country-by-country, and product-by-product, approach which has no guarantee of success. Suffice to say that this agreement is a facade, an alibi that the WTO used in order to avoid ending the conference empty-handed.
4) Big Pharma: profit at all costs
The pandemic has endorsed the business model of the pharmaceutical industry, which allows it to make colossal profits at the detriment of public interest. An report by Public Eye dissects the ten methods used by Pfizer, Roche and Novartis to systematically exploit the coronavirus crisis to their advantage. Moreover, it shows how the complicity of Switzerland and other rich countries led to the shortage and inequitable distribution of vaccines, treatments and diagnostic tests against Covid-19.
In the "Big Pharma takes it all" report, Public Eye analysed the strategies of the pharmaceutical giants to maximise their profits and the way in which they have been profiting from the crisis, even though their products were massively financed by public funds. Rich countries, such as Switzerland, protect the interests of their pharmaceutical industry, hindering international efforts to ensure equitable access to Covid-19 vaccines, tests and treatments. However, health is a human right, and States have a duty to protect it. If it's not guaranteed, they must intervene.
The argument put forward by pharma and Switzerland according to which exclusive rights allow them to recover the initial investment through the monopoly granted does not hold up in times of crisis. Indeed, the research effort has been so intense mainly thanks to the colossal public subsidies invested, without which the pharmaceutical industry would never have been able to develop vaccines in such a short time. These contributions discarded the research and development (R&D) risk often put forward to justify monopolies and high prices, especially considering that they were granted without binding conditions. Moreover, through reservation agreements with affluent countries – even before the product was marketed – they ensured the sale of their output at a price that largely paid off their own investments. Thus, according to a SOMO report from February 2023, the companies Pfizer, BioNTech and Moderna recorded a cumulative net profit of $75 billion between 2021 and 2022 for their anti-Covid vaccines and treatments.
5) Switzerland ordered far too many vaccines
Initial calls for international solidarity soon gave way to national selfishness. While in spring 2020 they were considering them as "a global public good accessible everywhere in the world", the major powers – United States and Europe first of all - ordered doses in high volumes for their own needs, even before their approval and without worrying about what would remain for others.
Switzerland also took action and also placed an order at the beginning of August 2020, followed by many others. In all, from 2020 to 2023, Switzerland ordered more than 65 million doses of Covid-19 vaccines for at least 1.5 billion francs, enough to vaccinate more than seven times each citizen! In 2022, it had already had to destroy some 9 million doses, and many more will expire in 2023. A real waste.
Indeed, Switzerland tried to hand over doses to countries that may have needed them, notably via the Covax mechanism; however, the process is complicated, as the pharmaceutical industry has a right of veto and demand decreased due to the epidemiological situation. Governments were taken hostage, but with their own consent.
Even though they were paid with taxpayer’s money, even today it is impossible to know the contractual terms and the precise amounts spent on all these orders. All attempts to access contracts via the Transparency Act have been systematically refused, under the pretext of 'trade secrecy'. Contracts between a country and producers are heavily loaded with confidentiality clauses and guarantee that pharma companies have the 'final say'.
6) A binding treaty to better manage future pandemics
While the idea of a pandemic treaty is not new, the World Health Assembly decided to formally materialise it at its special session in November 2021, in response to a "catastrophic failure by the international community to show solidarity and equity in its response to the coronavirus pandemic". It also decided to update the International Health Regulations (IHR), an instrument in force since 2005, whose main objective is the prevention and control of the global spread of infectious diseases. Thus, two parallel projects are underway at the WHO.
While WHO resolutions are merely recommendations, which states may follow or not, a treaty (or a convention based on Article 19 of its Constitution) is an instrument based on compulsory rules that bind the states that have signed and ratified it. To date, only one such convention of this type exists at WHO, i.e., the WHO Framework Convention on Tobacco Control, in force since 2005.
An Intergovernmental Negotiating Body (INB) representing all regions of the world has been established to propose and negotiate a treaty text. After more than a year of preparatory work, the INB published a first draft entitled "Zero draft" in February 2023. This was an interesting starting point, since it took into account the main issues encountered during the Covid-19 pandemic: temporary lifting of intellectual property rights (Waiver), knowledge sharing for decentralised production, conditions for public funding, allocation (reserve) of mitigation measures at WHO level.
Extremely ambitious, the negotiating timetable provides for the adoption of a pandemic treaty at the May 2024 World Health Assembly. It is also full of challenges, since the pharma lobby, fiercely opposed to any intellectual property Waiver, has not yet had its final say, and the same protectionist and nationalist reflexes of wealthy countries encountered during the Covid-19 pandemic are already at work to water down the text – even if it means making it ineffective.
Even if Switzerland supported the decision to negotiate a pandemic treaty, it is still unclear whether it will continue to support solidarity and equity until the very end. Time will tell, and Public Eye will watch over the respect of its international obligations whenever necessary.