Patents, Pandemics, and the Private Sector: The Battle Over Public Health Norms During COVID-19

Written by
Vartika Neeraj
May 20, 2022

By Vartika Neeraj

Abstract

The COVID-19 pandemic has revealed the influence that private pharmaceutical companies and philanthropic foundations have on global health governance. Private actors have been able to  maintain the norm of intellectual property rights despite opposition from developing countries and growing opposition from powerful actors in developed countries. This article  examines how private actors have wielded  their material resources, expert authority, and discursive powers to overrule the wishes of governments. It concludes by exploring the public health consequences of their growing hold on international governance and offers some policy recommendations to mitigate distorted public health outcomes. 


Introduction

Global healthcare is a complex web of actors, composed of sovereign nation-states, intergovernmental organizations such as the World Health Organization (WHO) and the United Nations (UN), as well as civil society networks, experts, foundations, multinational corporations, and journalists (Frenck and Moon 2013, 937). But within this network, some players are better positioned than others to influence governance and emerge as norm-setters.

The COVID-19 pandemic demonstrated just how powerful private foundations and corporations are in dictating global norms, allowing them to set the agenda on the public health response. Private actors have leveraged their expertise, vast economic and material resources, and discursive powers to emerge as legitimate norm-setters for patent protection. The growing influence of such actors is potentially damaging for public health access in developing countries. To mitigate the negative consequences of private influence, governments can enhance transparency between the private and public sectors, reduce financial dependence on private actors, and invest in public healthcare institutions. 

Norm-Setting in the Pandemic: Private Advocacy for Intellectual Property Rights

Norms are a shared notion of what 'ought to be'. They have a strong influence over societal structures, and gain credibility from their perception of being 'appropriate'. Leading scholar Katherine Sikkink has shown that the emergence and socialization of norms are driven by norm entrepreneurs such as states, individuals, or non-state actors that use organizational structures to further their perspectives and interests (Finnemore and Sikkink 1998, 897,901).

A key component of norm acceptance within international governance is the power dynamic behind the players who promulgate these norms, in addition to the material resources made available to them, the organizations that become their platforms, and the states that support them. Private actors have established themselves as influential norm-setters within global health governance and have guarded their intellectual property closely. Intellectual property (IP) rights are a central part of the pharmaceutical industry, with private firms protecting their biomedical inventions through meaningful patents and trade secret protections.

In 2020, for example, the European Patent Office (EPO) received over 14,295 medical technology patent applications, more patents than any other technical field, including pharmaceutical patent applications, computer technology, and others (EPO 2020). Pharmaceutical companies have argued that strong IP regimes have allowed for more research and development (R&D) in the field by allowing companies to recuperate the cost of R&D (Sell 2005). This argument underpins the IP norms in global health governance, resulting in binding international treaties such as the The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which mandates that signatory countries give patent protection to drugs and other inventions for a period of 20 years (Sell 2005). 

Other influential private actors include foundations such as the Bill and Melinda Gates Foundation, as well as trade associations like Pharmaceutical Research and Manufacturers of America (PhRMA) and The International Federation of Pharmaceutical Manufacturers and Associations (IFPMA). These private actors have been vocal advocates for the protection of IP during the pandemic, especially in relation to the development of vaccines. Bill Gates openly opposed waiving some provisions of the World Trade Organization’s (WTO) TRIPS Agreement, saying in an interview, “The thing that’s holding things back in this case is not intellectual property. There’s not like some idle vaccine factory with regulatory approval that makes magically safe vaccines” (Cheney 2021). Although commentary  on global capacity to deliver safe vaccines is beyond the scope of this paper, there are significant examples pointing to medical advancements that have demonstrated successful manufacture of vaccines, such as the Serum Institute of India’s manufacture of AstraZeneca’s ‘Covishield’ vaccine. Claiming that IP waivers would result in unsafe regulatory practices is not an entirely foolproof statement.

In 2020, countries in the Global South, including India and South Africa, urged the WHO to establish the COVID-19 technology access pool C-TAP, which would have removed IP barriers for accessing COVID-19 vaccines (Plüss, Uehara, and Turuban 2021). In response, the Gates Foundation, in collaboration with the WHO, launched the Access to COVID-19 Tools Accelerator (ACT-A) in order to streamline the pandemic response while protecting vaccine IP. The accelerator’s charge was to organize the research, development, manufacturing, and distribution of treatments and vaccines (Hancock 2020). Its partners included the European Commission, member-states like France, and private bodies like the Wellcome Trust. A key reason why private companies like Pfizer supported the ACT-A was that there was no requirement to give up vaccine patents. Instead, the ACT-A attempts to help developing countries learn mRNA technology through its mRNA vaccine technology transfer hub, thereby avoiding the need for private companies to share their trade secrets (Dalberg 2021, 14). However, critics have condemned this as a half-baked attempt at technological cooperation in the absence of IP waivers (Patnaik 2021). Furthermore, this is a slow and ineffective solution for developing countries that could be easily bypassed with a TRIPS waiver.

COVAX Global Vaccination
An individual receives a dose of the AstraZeneca/Oxford COVID-19 vaccine in Ghana through COVAX, the vaccines pillar of the ACT Accelerator. Image Source: Nana Kofi Acquah, licensed under CC BY-SA

The Gates Foundation’s influence as a key donor convinced Oxford University researchers behind AstraZeneca to backtrack on their initial commitment of ‘open access vaccines’. Similarly, the CEO of Pfizer penned an open letter questioning whether waiving vaccine patents would “ bring solutions or create more problems”. In early April 2020, Oxford University made public statements promising to donate the rights to its COVID-19 vaccines to any drugmaker. Its intention was to provide royalty-free licenses for its vaccine, so that multiple parties could sell it at a low cost. However, after persuasion by the Gates Foundation, the university entered into an exclusive vaccine deal with AstraZeneca that gave the pharmaceutical giant sole rights without a guarantee of low prices (Hancock 2020).

Other companies working on COVID-19 vaccines have followed the same line, collecting billions in government grants, hoarding patents, and revealing the bare minimum about their deals. Sikkink describes this as “norm cascading,” whereby the practice, pushed by the Gates Foundation and private pharmaceutical companies, remained “business as usual” in the face of a global pandemic. This could be perceived as problematic: pharmaceutical companies prioritize profits, while the majority of the population in low-income countries remains unvaccinated and bad public health policies ensue (Green 2021). In a global pandemic, the goal should be to vaccinate as many people as quickly as possible, regardless of whether they can pay or not. The private-sector dominated vaccination campaign shows that in 2021, pharma giants Pfizer and BioNTech delivered under one percent of their total vaccine supplies to low-income countries; Moderna delivered under 0.2 percent (Oxfam International 2021). Such trends, in the absence of technology transfers to the developing world, illustrate how the pharmaceutical industry has benefited from the pandemic, leaving developing countries to fend for themselves. 

As of April 2022, global actors are debating a TRIPS waiver related to COVID-19 vaccines at the WTO. In October 2020, India and South Africa lobbied WTO members to ensure that IP rights such as patents, copyright, and protection of undisclosed information do not obstruct timely access to affordable medical products such as vaccines and medicines (Siripurapu 2021). A waiver would give member nations the option to relax COVID-19 IP and patent restrictions for the duration of the pandemic so that low and middle-income countries can produce or import generic versions of vaccines. However, powerful multinational pharmaceutical companies have strongly opposed the waiver. Disclosure forms from the first quarter of 2021 reveal that over 100 lobbyists were enlisted to oppose the TRIPS waiver in the United States. PhRMA and the Biotechnology Innovation Organization, for example, claim that the waiver would eliminate trade secrets and emerge as an obstacle to R&D (Fang 2021). Critics of the waiver argue that the main role of IP is to provide incentives for innovation and a safe passage through the stages of innovation to commercialization of the product. However, such arguments conflict with the scale of the current pandemic and the need to prioritize public health access for disadvantaged populations. 

Reports from April 2022 citing a leaked document suggested that a compromise enabling countries whose exports accounted for less than 10 percent of the world’s vaccines in 2021 (i.e. all TRIPS signatories except China, the European Union, and the United States) to authorize patent waivers had been reached. However, the document does not meet all demands made by advocates of the waiver and is vague on the temporal scope of the waivers. Analysts believe that the compromise would still enable private companies to find loopholes because of the “burdensome reporting requirements” imposed on eligible parties, mostly comprising countries in the Global South (Green 2022). Furthermore, the leaked draft waiver does not include ‘trade secrets’ in its clauses which protect many of the complex manufacturing steps of vaccine production (including unpatented technology or formulae, cell lines, genomic information, and other biological materials). Critics have argued that without these trade secrets, "a TRIPS waiver would be meaningless" (Kathuria 2021). The settlement is yet another example of how private firms have held considerable leeway in the compromise.

This follows a long history of private players advancing the norm of using patents to protect their research and secure monopolies over their products. Pfizer’s patent lawyers have launched several infringement suits around the world in the last few decades, including a major lawsuit against Ranbaxy, an Indian pharmaceutical company, for infringing upon its best-selling product, a cholesterol reducing pill. Alexander Zaitchi, a best-selling author on vaccine monopolies, suggests that the very creation of TRIPS can be seen as a consequence of concentrated corporate power— “the work of less than 50 individuals(Zaitchik 2022). Susan Sell’s Private Power, Public Law shows how a small group of transnational corporations that included the CEOs of Pfizer Pharmaceutical and IBM successfully lobbied for a strong IP protection regime in the Uruguay round of trade negotiations, which ultimately resulted in the adoption of TRIPS (Sell 2005). 

Driving Factors Behind the Influence of Private Firms and Foundations

Private bodies have positioned themselves as legitimate and powerful actors in global health governance in several ways, including through successes in medical innovation, lobbying capacities, and other areas explored hereafter.

Corporate Wealth

The wealth of corporations and foundations should not be neglected when considering their influence on the global health ecosystem. Foundations like the Gates Foundation and Wellcome Trust are some of the wealthiest philanthropic organizations in the development sector, with the Gates Foundation’s endowment reaching approximately $50 billion in 2020 (BBC News 2021). This level of economic prominence allows private actors to use their material resources to shape the thinking and actions of other actors in the global health space including governments, civil society organizations, and international bodies (Moon 2018, 22).

Through their material resources, private actors command substantial authority over the international healthcare ecosystem. For example, the Gates Foundation is the second largest donor of the WHO, accounting for over 11 percent of its budget (Harman 2016, 352). Most of their donations are earmarked, which allows them to dictate how contributions are spent, as well as what healthcare issues to focus on, over what period of time, and where. Earmarked donations represented over 62 percent of the 2020-2021 WHO budget, giving large donors the power to influence the global health agenda and emerge as important norm setters.

The co-launch of the ACT-A by the WHO and the Gates Foundation is one example of this. As a private philanthropy, the Gates Foundation was able to shift the WHO’s pandemic response from an open access vaccine approach (C-TAP) supported by developing countries to one that enables firms to retain their vaccine patents (ACT-A), supported by large donors and private companies. Several attempts to mitigate the financial stronghold of private actors within international organizational frameworks have been made, such as the WHO’s Framework of Engagement with Non-State Actors (FENSA). However, these efforts are often ineffective against the capital power of private corporations because of implementation hurdles and conflicts of interest (World Health Assembly 2016). These actors often have strong public affairs teams dedicated to pushing their agendas within governance corridors. For instance, PhRMA, the largest pharmaceutical trade association in the United States, and the industry’s biggest lobbying spender, spent $23 million lobbying the U.S. government in 2020. Pharmaceutical giant Merck successfully lobbied the European Commission to give companies EU-wide monopoly extensions by default, arguing that “unmet medical needs cannot be fixed by weakening IP” (Hillstorm 2021). 

Private Efficiency

The legitimacy enjoyed by private sector firms often comes from their efficiency and lack of bureaucratic bottlenecks (Andonova 2018, 187). Private players therefore become essential in global governance through public private partnerships (PPPs) orchestrated by international organizations (Abbott and Snidal 2010, 315-344). PPPs, such as GAVI ‘The Vaccine Alliance’, have been credited with considerable success in vaccinating African countries against influenza and other diseases. The role of private actors in international healthcare has been solidified by growing disillusionment with the UN and other IOs. Global bodies like the WHO have been criticized by academics and policy-makers alike for their ineffectiveness and frequent use of overlapping mandates and interagency competition (Young 19853-19860). Several IOs including UNICEF, the World Bank, and UNAIDS have public health mandates that often lead to conflicts over agency influence; in such cases, international organizations often turn to private expertise and resources to secure their legitimacy within the regime (Littoz-Monnet 2017, 584-595). Currently, 60 percent of WHO initiatives rely on contributions from private foundations and over 30 percent involve contributions from businesses (Andonova 2018, 192).

Technical Expertise

The distinctly technical nature of healthcare has made private players epistemic authorities (Moon 2018, 22). In other words, the private sector has become widely accepted as a source of knowledge and research, thus legitimizing the authority of private actors in the pharmaceutical industry. This expert power has been nurtured through empirical evidence pointing toward the effectiveness of private scientific research. Successful medical breakthroughs from pharmaceutical companies that have led to the eradication of diseases like smallpox and rinderpest has strengthened public faith in their expertise (Lavazza and Mirko 2020). This reliance on the private sector increased during the pandemic, when vaccine development became the key policy response to the novel virus. The United States and other developed nations, in turn, have endowed pharmaceutical companies with billions of dollars in public funds for research and development of therapeutics. The Trump administration, for example, announced deals worth more than $10 billion with seven companies to turn research into effective, widely distributed vaccines — even without a guarantee that the final vaccines would be widely affordable or available (Kaiser Health News 2020). Such a strategy implicitly acknowledges the advantage that private actors wield when demanding protection of IP rights. 

Narrative Shaping

Beyond epistemic authority, private players also exert a degree of moral authority in global health governance due to the legitimacy they gain by doing ‘good and principled’ work for public welfare (Moon 2018, 22). Through their philanthropic ventures, foundations such as the Bill and Melinda Gates Foundation have acquired reputations as “do-gooders” because of past efforts in tackling medical crises such as alleviating malaria and polio. The philanthropic nature that guides their development efforts affords them moral currency in this domain, allowing them to “shape the language others use to conceptualize, frame, and thereby understand” public health issues.

Big Pharma shapes its moral reputation through these discursive powers that shape the global health agenda through a strategic framing of narratives. The successful framing of “its profit-making goals as a proxy for public health objectives” relies on a specific discourse. According to a Corporate Europe Observatory report, “this is done through the omnipresent use of terms like ‘innovation’ (though it is often argued that the industry itself develops little that is meaningfully ‘new’), and ‘research-based industry’ (which could be countered with most medical research happening at universities funded by taxpayers)” (Corporate Europe Observatory 2020).

The advancement of philanthropic morality through carefully crafted public perceptions is best captured through a case study of the Gates Foundation. Bill Gates has been lauded as one of the world’s greatest philanthropists; in 2005, he was named Time Magazine’s Person of the Year for being a ‘good samaritan’, The Guardian listed him as a Business Hero in 2010, and Forbes labeled him as one of the seven most influential “vaccine heroes” in 2015. These examples demonstrate the extent of public belief in Bill Gates and, by extension, the Gates Foundation. However, these narratives are curated through advanced communication strategies, involving a strong social media presence and networks with media elites. The Gates Foundation often supports journalist coverage of international health issues, and has donated $3.5 billion to the U.S. television show NewsHour to report on the development issues it works on, invariably in the hope of accessing favorable coverage and positive public perception (Harman 2016, 352).

Private actors often frame conversations around IP rights as protecting incentives for research and development, shifting attention away from the monetary losses that companies would face if the TRIPS waiver was launched (McFaden 2021). To that end, several commercial unions and firms have published press releases openly opposing the waiver. Until recently, influential figures including Bill Gates have used their platforms to speak against the waiver, though the foundation has been relatively quiet on the issue since Biden’s public endorsement of the TRIPS waiver. According to scholar Sophie Harman, the Gates Foundation’s advocacy efforts for protecting IP rights during the pandemic “carried the enormous weight of Gates’s reputation as a wise, beneficent, and prophetic leader" (Harman 2016, 352). In this way, private actors have used their significant social media presence and well-resourced advocacy teams to generate favors for patents during the pandemic.

Operating in a Crisis

Non-state actors have also been able to emerge as influential norm entrepreneurs during the pandemic because of the ad-hoc and decentralized nature of the COVID response. The unprecedented scale of the current emergency, along with its evolving epidemiological nature, required action that was free of bureaucratic hurdles. Bodies like the ACT-A have been voluntary initiatives that have not required the creation of a separate legal entity (Dalberg 2021, 3). While this allowed for quick responses, it also meant that institutional checks and balances were diminished, allowing private actors to seize substantial influence of such bodies (Storeng, Puyvallee and Stein 2021, 12). For instance, the Gates Foundation is one of the largest donors of the ACT-A and bodies like GAVI – ensuring the foundation’s influence at multiple layers (Harman 2016, 355). There is growing consensus that the health agenda is so large and diverse that no individual sector or organization can address it alone (Buse and Walt 2000, 552). The overwhelming nature of the pandemic has further bolstered this belief. Therefore, ad-hoc bodies like the ACT-A that bring together private and public actors have been allowed to function. The current pandemic presents a health threat so formidable that private actors need to be roped in to share the burden of necessary resources – political, technical and scientific – to address the emergency (Andonova 2018, 190). The influence of quasi-private initiatives like the accelerator becomes especially noteworthy when we realize that the body includes firms that have been advocating for patent protection and can use this influence to lobby legislative processes in international governance.

Institutional Support

The nexus of political authority and private interests has been essential in securing state opposition to a TRIPS waiver. Several countries in the European Union, Switzerland, and the United Kingdom (UK) have voiced concerns about waiving patent rights. Since several pharmaceutical firms and their patents are housed in these countries (e.g. BioNtech in Germany, a patent co-owner of the Comirnaty; Vaccitech and Oxford University Ventures in the UK, a patent owner for Vaxzeveria) are reluctant to renounce patent protection (Siripurapu 2021). Open access to vaccine technology would potentially take away the strategic advantages that these countries enjoy by gatekeeping vaccine-related knowledge dissemination. Other countries would no longer need firms operating out of countries like the UK, consequently reducing the unequal dependency of knowledge and manufacture. In addition, such a move would present a revenue setback for countries housing vaccine patents. For instance, BioNTech single-handedly hauled in over 5.3 billion euros in revenue between April to June 2021. This has paid dividends for the German government, which recovered its early investment in BioNTech with 1.75 billion euros in income tax through June 2021. Germany’s economy is predicted to grow four percent in 2022, with 0.5 percent of it attributable to BioNTech alone (Patnaik 2021). Such profiteering would be significantly less likely in the face of a TRIPS waiver for vaccines. These combined corporate and political interests have strengthened the position of private players in advancing the norm of IP rights during the pandemic. As Sikkink noted, “certain actors are critical to norms cascading as they wield more normative and material weightage internationally” (Finnemore and Sikkink 1998, 901).

Private actors have used their many forms of authority – material, epistemic, and moral – to influence international organizations like the WHO and state governments to advocate for IP rights during the pandemic. The next section will briefly examine the limits of this trend and its consequences.

Limits to Expanding Private Influence

While material resources, technical know-how, and the loosely formulated accountability mechanisms from the pandemic (such as the ACT-A) have allowed private actors to emerge as influential norm entrepreneurs for IP rights, there are certain limits. Private actors in global health governance are facing increased scrutiny about their lack of transparency and accountability to the public. The politicization and critique of the participation of private actors within public discourse has also increased because of their growing authority in global health governance (Zürn, Binder, and Ecker 2012, 70). Even though there is still no international or national regulation making patent waiving compulsory, there is a strong demand from actors like India, South Africa, and recently the Biden administration (Siripurapu 2021). Sikkink describes the socialization of norms as a dynamic process where the boundaries of ‘appropriateness’ continue to change. The process does not occur in a vacuum, but instead comes about in contested spaces as new norms emerge and compete against prevailing norms (Finnemore and Sikkink 1998, 897). Thus, the questioning of IP norms from developing states can be seen as a challenge over what constitutes ‘appropriate’ and becomes the new standard. The recent compromise on TRIPS due to mounting pressure for open access demonstrates that protecting IP during a pandemic is not necessarily a global norm and is still being debated. 

COVID19 vaccine syringe
Countries came up with independent COVID-19 responses that included varying surveillance policies, vaccination procurement, and roll-out procedures. Image Source: U.S. Census Bureau, licensed under Public Domain.

Although private players can influence this space through lobbying and donations, the final word on health-related policies remains a sovereign issue. The Biden administration's recent endorsement of open access vaccines is one example of this. OpenSecrets reported that, “despite spending a record-breaking $92 million to lobby the federal government in the first three months of 2021, pharmaceutical interests suffered a major loss when President Joe Biden announced that the U.S. will support some countries’ efforts to waive IP protections on COVID-19 vaccines” (McFaden 2021). 

Although private groups are becoming increasingly influential in international politics through hefty donations, the lion’s share of funding for most IOs and global partnerships still comes from government donors. For example, even within GAVI where the Gates Foundation is the single largest donor (providing over 20 percent of the alliance’s funding), public resources still account for 82 percent of the pledges for the 2016-2020 fiscal period (Andonova 2018, 192). Hence, private influence must be contextualized and understood given its several nuances. However, this does not completely negate the growing authority of firms and foundations as norm entrepreneurs. Given the influential role of private actors like the Gates Foundation, it is not surprising that the norms they endorse remain operative within global health governance in the absence of any strong policy decisions against patent protection. As of April 19, 2022, the WTO’s official TRIPS waiver status remains pending.

The last section will briefly examine consequences of the enhanced authority of private players in the global health ecosystem.

Implications of Private Authority and Patent Protection

Serious implications arise from private firms becoming successful norm setters during the pandemic. Notably, the corporate interests of profit maximization are at odds with larger public health goals. This became apparent during the pandemic when actors like the Gates Foundation and pharmaceutical companies pushed for patent protection over equitable access. The influential role of private players has also given them political authority that enables them to persuade and coerce state actors into complying with their norms. Pfizer’s demands for sovereign collateral in negotiating vaccine deals with Latin American countries as a means of ensuring that they will be paid for delivering vaccines and strengthening political ties within government corridors is one example of this (Nawrat 2021).

Certain states are disproportionately affected by growing private interests, especially in terms of patent protection. Typically, developing countries in the Global South with lower bargaining power are at a disadvantage in the global health ecosystem, which explains why such countries that lack the technical or capital resources to design and manufacture their own vaccines have been the strongest voices in calling for a TRIPS waiver – albeit with limited success thus far [1]. These often are the countries that have come to depend on private philanthropic foundations for their health agendas and need the most aid from such bodies. Thus, developing states are doubly burdened by their enhanced need for development aid and lower bargaining powers in the international arena. On the other hand, stronger states are better protected against such coercive effects of norm socialization and can afford to not comply with international norms without worrying about consequences in the forms of sanctions and public shaming in the global arena (Johnson 2001, 487-515). This is illustrated by wealthier nations like the United States and members of the European Union easily reneging on their commitments to the ACT-A and securing their vaccines bilaterally instead (Storeng, Puyvallee, Stein 2021, 19). 

Although private groups are becoming increasingly influential in international politics through hefty donations, the lion’s share of funding for most IOs and global partnerships still comes from government donors.

The growing influence of private actors means that they have enhanced power to set the agenda on development goals in the health arena. Given the Western origins of a majority of the influential private firms and foundations, their understanding of public health demands are Western-skewed. As a result, their approach to public health is solely informed by Western medical trends and the needs of the developed world. This is a potential explanation for why private donations into research around the Ebola and Zika vaccines have been on the back-burner for years given that such efforts mainly affect the African continent. Vaccine research and development into these epidemics has been severely underfunded due to lack of investment by both public and private actors. Indeed, the first vaccine for Ebola (Merck’s Ervebo) mostly affects Africa, and was not approved until 20 years after its initial development in December 2019 (McKenzie 2021). This lies in stark contrast to the COVID-19 pandemic, in which the vaccine was made commercially available in one year. 

The growing influence of Western-origin pharmaceutical companies and philanthropic organizations reinforces Western hegemony in global governance and leaves weaker actors in the Global South disadvantaged. Börzel and Risse’s work on public-private partnerships reinforces this claim – private actors in global governance “overwhelmingly represent the civil society of the OECD world including their cultural values. Southern actors have only limited resources to push their concerns in the global community” (Börzel 2005, 17). This drawback becomes even more acute when we realize that Western drug companies are perhaps the only actors with ample technical and material resources to address marginalized research needs, especially in a global health regime that enables patent monopolies. In the absence of effective resource sharing, the technical gaps between research being conducted in the developing world and developed world will continue to increase, making Western private players even more powerful.

Conclusion

Private corporations and philanthropic organizations have played an influential role in promoting IP rights during the COVID-19 pandemic. Their vast material resources, ability to quickly mobilize, cutting-edge technical expertise, and public relations capabilities dwarf those of public health institutions, allowing private actors to shape public opinion and influence the global health agenda. In the absence of effective checks and balances, the growing influence of private actors not only means that key norm-setters in the global health ecosystem are for-profit companies, but also exacerbates inequality between countries.

Private actors have leveraged their expertise, vast economic and material resources, and discursive powers to emerge as legitimate norm-setters for patent protection. The growing influence of such actors is potentially damaging for public health access in developing countries.

The misaligned public health incentives during the pandemic have made clear that pharmaceutical companies and foundations should be regulated to reprioritize public health access over corporate greed. National governments and international regulatory bodies, including the WHO and WTO, need to reduce their dependence on private actors in order to successfully enact regulations like the TRIPS waiver for vaccine technologies that could improve access to live-saving vaccines for millions of people in developing countries. This would set an important precedent for future healthcare emergencies. 

One route to achieving this is to diversify donations to international organizations beyond the private sector. For instance, policymakers have been advocating for an increase in ‘assessed contributions’ by member countries of the WHO, which would result in public funding becoming a more substantial part of the organizational budget (Merelli 2021). Such a move would ensure a greater pool of contributions and make international governance less vulnerable to private pressures. 

Additionally, there is a greater need for transparency by pharmaceutical companies in their lobbying attempts to influence policy. A lack of empirical data around the lobbying expenditure and networks of such companies has allowed them to escape public scrutiny. Watchdog reports and compulsory reporting requirements for these companies will make their carefully crafted lobbying strategies and subsequent impact more transparent, leading to more accountability in the international arena. Another growing misconception that has enabled private influence in healthcare governance is that public sector systems are ineffective and easily overwhelmed during emergencies. The expert authority and material resources of private firms and foundations are needed because of weak state actors. In order for the global health ecosystem to reduce its reliance on private actors, there needs to be an enhanced commitment to strengthening the capacity of public institutions and international bodies that are accountable to people rather than profits (Youde 2016, 203-220). While the tension between global public health and private interests may always exist, the influence of the private sector can be reduced by increasing public contributions to health IOs, requiring greater transparency of private corporations lobbying efforts, and strengthening domestic health institutions.

*This article was edited by Abha Calindi (Graduate Institute of Geneva), Jack McCaslin (Princeton University), and Lynne Guey (Princeton University).


About the Author

Vartika Neeraj is a masters student at the Geneva Graduate Institute where she studies international relations with a special focus on global health governance. She has previously worked as a public affairs professional in New Delhi, representing clients like the Bill and Melinda Gates Foundation and Malaria No More. She can be reached at vartika.neeraj@graduateinstitute.ch and on Linkedin

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Acknowledgements

Vartika would like to thank Professor Suerie Moon for her help on this paper, along with her JPIA editors—Abha, Jack, and Lynne—for their continued work on this project. 


Notes

1. A leaked document by the WTO alludes to a compromise where only a few demands of the waiver proposal were met, not all. (Return to Note)


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