Stethescope by Dan Wiedbrauk (CC BY-ND 2.0)

Stethescope by Dan Wiedbrauk (CC BY-ND 2.0)


The Trouble with the TPP, Day 9: Limits on Medical Devices and Pharma Data Collection

The link between health care and the TPP’s intellectual property chapter is easy to spot, but there are other chapters with implications for the issue. The Trouble with the TPP series today considers Chapter 8, which covers Technical Barriers to Trade (TBT). The chapter contains some surprising restrictions on the ability for national regulators to require the disclosure of certain information as part of the regulatory review process for pharmaceutical products and medical devices (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection).

The Canadian government summary of the TBT chapter does not disclose that there are data collection restrictions. In fact, the only reference to the issue states that the chapter “improves regulatory transparency in the areas of cosmetics, medical devices, and pharmaceutical products.” Yet the chapter does far more than address regulatory transparency. For example, Annex 8-C 7bis requires each party to makes its determination on whether to grant marketing authorization for a specific pharmaceutical product on the basis on factors such as clinical data, manufacturing quality, and labelling information. However, it also states that:

no Party shall require sale or related financial data concerning the marketing of the product as part of such a determination. Further, each Party shall endeavour not to require pricing data as part of the determination

Annex 8-E for the approval of marketing of medical devices is similar:

no Party shall require sale, pricing, or related financial data concerning the marketing of the product as part of such a determination

As KEI notes in its presentation to the U.S. International Trade Commission:

It is certainly desirable to require drug and device makers to provide information about product prices, revenues, and a variety of related financial data, including the outlays on R&D and marketing of products. These are the very topics that the State of California and other state governments are seeking to obtain from drug companies, but it is much easier to mandate such disclosures at the federal level.

Much of the pricing and sales data for drugs is now controlled by IMS, the company that holds a near global monopoly on the most detailed information on sales revenue and pricing of drugs. Other “related financial data concerning the marketing of the product” might include data on R&D outlays, a topic shredded in unhelpful secrecy and subject to too much controversy, when the facts exist and could be shared. From the text, it is not that clear how far the ban on requiring financial data extends, and to which activities of a regulatory agency or another government body would be constrained by these provisions.

It is not clear why the Canadian government has agreement to these limitations nor why the summary documents do not reference them. This information could assist regulators in making better decisions on medical devices and pharmaceutical products, yet the TPP will inexplicably block them from doing so.


  1. Tainted Witness says:

    Nothing is beyond the cynical shoulder shrugging contemporary attitude. No reality too harsh or brutal to be laughed at or taken lightly. The full impact of all the implications such talks have doesn’t reach the unprepared audience, they retreat behind mental ramparts and defence mechanisms before the sheer abominable scale of it even comes into play. Too many dots to connect to make too complicated a picture that probably won’t even receive the proper public attention and scrutiny it deserves.

    The only thing I find even remotely comical about this is its mind boggling absurdity. These are more akin to terms of surrender to the de-facto crowned corporate kingdoms. It’s deadly serious.

  2. As a consumer, when purchasing anything, do you not scrutinize the value of whatever it is you are buying? You might assign more weight to reliability than say, country of manufacture. Or you may be fickle and choose something because of appearance. Either way, whatever you use to measure your decision in a purchase it remains personal.

    Now imagine the scenario where the government is buying a good for you and their evaluation includes cost. They can assign any cost they want

    • *They can assign any weighting to cost they want. It could be 30% or 70% of the decision. Meaning the disclosure of financial data allows the purchase decision to be biased by cost, regardless of the merits of whatever the good may be. In the context of healthcare, choosing the cheapest good over others may compromise the quality and/or effectiveness your healthcare. In Canada, where the government delivers your healthcare, you essentially have very little say if your preference for a good, used in the treatment of your health, contradicts that of their evaluation where cost was a significant factor. Your health: what could be important than the very goods that sustain and heal you?

  3. Pingback: The Trouble With the TPP, Day 50: The Case Against Ratifying the Trans Pacific Partnership - Michael Geist