Dr Joshua Freeman: Trade deal needs urgent check up

Foreign investors would be given a powerful new lever to delay sound new health regulations for their own commercial interests. Photo / Thinkstock

New drugs and medical procedures undergo careful scrutiny before being foisted on the public. Nobody wants another Thalidomide disaster.

The same scrutiny is needed for changes to systems that underpin health. This is why a broad coalition of New Zealand health organisations is calling for the Trans Pacific Partnership (TPP) agreement to have an urgent health check.

The list of specific concerns is long, but the broad concerns are twofold -- healthcare costs would rise and public health policy would be muzzled.

Pressure on the nation's health budget would escalate because of delayed introduction of generic medicines, longer exclusive protections for expensive new cancer and immunosuppressant medicines and weakening of Pharmac. Medicines would become less affordable.

But the muzzling of health policy is probably even more concerning. Under the TPP, foreign investors would be able to sue the Government if changes to health policy affect an investment, say significantly reducing expected profits. The director general of the World Health Organisation calls this "handcuffing".

In practice, the threat of action can have a handcuffing effect. In Canada, all new health laws must be screened to make sure they are compatible with trade agreements. In New Zealand, action on plain packaging of cigarettes has already been delayed; we're waiting because a tobacco company is suing Australia.

The list of issues on which the TPP would restrict government action is long. Obvious examples include marketing of sugary foods to children, sale and marketing of alcohol, climate-related health effects of fossil fuel extraction; and over-marketing and over-use of antibiotics.

But the health threats we can't anticipate yet may be even more important. Good public health policy should respond to new evidence. Products such as asbestos, lead paint and Thalidomide were widely used for many years. As evidence of harm accumulated, governments brought in controls.

But under the TPP, we could effectively forfeit our right to make sensible laws. Instead, foreign investors would be given a powerful new lever to delay sound new health regulations for their own commercial interests.

This pattern of behaviour has been typified by tobacco companies, but is not unique to that industry.

Ministers refer to "safeguards" against such lawsuits. But standard safeguards have rarely been successful as a defence. Moreover, organisations like the United Nations Conference on Trade and Development and the OECD have raised concerns about these safeguards.

The trade tribunals give inconsistent rulings, there is no formal right of appeal, and cases can be presided over by judges who alternate roles as paid litigators on behalf of investors.

It's clear then that the potential health effects of this agreement are complex, serious and not about trade. Although New Zealand can be sued under some existing agreements, the TPP would take risk to a whole new level.

General reassurances are not enough. That's why health organisations are calling for an independent, systematic and broad scope health impact assessment, and for for this and the text of the agreement to be released before any deal is signed.

If their request is dismissed and the agreement proceeds unchecked, New Zealanders will eventually be asking themselves: How did we get to the point where the systems designed to protect our own health lie beyond our control?

• Dr Joshua Freeman is a TPP spokesman for OraTaiao, The New Zealand Climate and Health Council.