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Thoughts on Transatlantic Regulatory Cooperation in Pharmaceuticals after #TTIPleaks

Published online by Cambridge University Press:  20 January 2017

Marco Rizzi*
Affiliation:
University of Seychelles

Extract

The leak of confidential documents on 2 May 2016 by GreenpeaceNetherlands allows some preliminary conclusions on both the scope and success of the negotiations so far. As regards the pharmaceuticalmarket, the current state of affairs combines the promise of steps forward with the prospect of concerning standstills. This short opinion follows key points emerging from the leaked documents n.9 (“RegulatoryCooperation”) andn.16 (“TacticalState ofPlay”) that are directly relevant to the pharmaceutical market. The themes that will be briefly discussed are, first, the regulatory cooperation mechanisms emerging fromdoc. n.9 in comparison to current cooperation processes in pharmaceutical regulation. The leaked papers suggest positive and commendable (yet far from conclusive) developments towards amore transparent and regulated framework for cooperation, while perpetuating concerns regarding fundamental policy choices and prevalence ofmercantile imperatives over competing public interests.

Type
Symposium on TTIP Leaks
Copyright
Copyright © Cambridge University Press 2016

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References

1 Identified as a relevant sector in EU Commission, “EU position on pharmaceutical products”, 14 May 2014, available on the internet at <http://trade.ec.europa.eu/doclib/docs/2014/may/tradoc_152471.pdf> (last accessed 19 May 2016).

2 TTIP leaks, Document n.9, “Initial Provisions for Chapter [ ] [EU: Regulatory Cooperation] [US: Regulatory Coherence, Transparency, and other good Regulatory Practices]”, available on the internet at <https://ttip-leaks.org/#docdoc9> (last accessed on 19 May 2016).

3 TTIP leaks, Document n.16, “Note – Tactical State of Play of the TTIP Negotiations”, available on the internet at <https://ttip-leaks.org/#docdoc16> (last accessed on 19 May 2016).

4 ICH, “History”, available on the internet at <http://www.ich.org/about/history.html> (last accessed 19 May 2016).

5 Alemanno, Alberto, “The Regulatory Cooperation Chapter of the Transatlantic Trade and Inverstment Partnership: Institutional Structures and Democratic Consequences”, 18 Journal of International Economic Law (2015), pp. 625 et sqq., at 628,CrossRefGoogle Scholar observing that the US do not share as much TTIP material as the EU.

6 Using the terminology first adopted by Majone, Giandomenico, Regulating Europe (London: Routledge, 1996), at pp 12 et sqq.CrossRefGoogle Scholar

7 See among which in particular Alemanno, “The Regulatory Cooperation Chapter of the Transatlantic Trade and Inverstment Partnership”, supra note 5; Chase, Peter and Pelkmans, Jacques, “This time it's different: Turbo–charging regulatory cooperation in TTIP”, Special Report no. 110 CEPS (2015)Google Scholar; Alemanno, Alberto, “The Regulatory Cooperation Chapter of the TTIP – Challenges and Opportunities”, 20 European Policy Analysis (2015), at pp. 7 et sqq.Google Scholar

8 ICH, “Organisational Changes”, available on the internet at <http://www.ich.org/about/organisational-changes.html> (last accessed 19 May 2016).

9 Marco Rizzi, “Non–Measurable Negotiations: The EU between Transnational Regulation of Pharmaceuticals and Private Law”, in Cremona, Marise and Micklitz, Hans–W. (eds.), Private Law in the External Relations of the EU (Oxford: Oxford University Press, 2016), pp. 273 et sqq., at pp. 283 et sqq.Google Scholar

10 ICH, “Formal ICH Procedure”, available on the internet at http://www.ich.org/about/process-of-harmonisation/formalproc.html (last accessed 19 May 2016).

11 Rizzi, “Non–Measurable Negotiations”, supra note 9, at p. 285.

12 TTIP leaks, Document n.9, supra note 2, Artt. X.23 “Establishment of the Regulatory Cooperation Body”, X.24 “Participation of stakeholders”, X.6 “Early Information on Planned Acts”, X.7 “Stakeholder Consultation”, X.8 “Transparent Development of Regulation”.

13 Alemanno, “The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership”, supra note 5, at pp. 636 et sqq., describing the mechanisms under Art. 218 TFEU.

14 A wonderful account of the perils of such models can be found in Mair, Peter, Ruling the Void – The Hollowing of Western Democracy (London: Verso, 2013).Google Scholar

15 Gerstetter, Christiane, “Regulatory Cooperation under TTIP – A Risk for Democracy and National Regulation?”, Heinrich Böll Stiftung – TTIP Series (2014), at pp. 6 et sqq. Google Scholar

16 TTIP leaks, Document n. 9, supra note 2, Art. 23(2)(c); and TTIP leaks, Document n.16, supra note 3, para. 2.1 “Regulatory Coherence”: “a number of important issues remain to be addressed: scope (both in terms of measures and authorities covered), the question of how to identify the cooperation activities that should be covered, and the architecture (relationship of the regulatory cooperation chapter with sectors), including the institutional mechanism, which will be crucial to the future operability of regulatory cooperation.”

17 TTIP leaks, Document n.10, “Chapter [_] Technical Barriers to Trade”, Art. 6, available on the internet at <https://ttip-leaks.org/#docdoc10> (last accessed 19 May 2016).

18 On the accountability deficit of such a prospect see Petersmann, Ernst–Ulrich, “Transformative Transatlantic Free Trade Agreements without Rights and Remedies of Citizens?”, 18 Journal of International Economic Law (2015), pp. 579 et sqq. CrossRefGoogle Scholar

19 Regulation (EU) No 536/2014 of the European Parliament and of the Council on clinical trials on medicinal products for human use, and repealing Directive 2001/20/EC, OJ 2014 L 158/2.

20 John Simmons and David Bernstein, “Navigating Differences between FDA and EMA for Regulatory Compliance During Drug Development”, 2 BioPharm International (2006), available on the internet at <http://www.biopharminternational.com/navigating-differences-between-fda-and-emea-regulatory-complance-during-drug-development> (last accessed 19 May 2016).

21 On the controversial nature of the GCP guidelines see Rizzi, “Non-Measurable Negotiations”, supra note 9, at p. 283.

22 EU Commission, “Technical Paper for Regulatory Cooperation on Generic Medicines – Proposal of the European Union”, 26 January 2016, available on the internet at <http://trade.ec.europa.eu/doclib/docs/2016/january/tradoc_154172.pdf> (last accessed 19 May 2016).

23 TTIP leaks, Document n.16, supra note 3, para. 2.4.

24 TTIP leaks, Document n.9, supra note 2, Art. X.14 “Decision–Making Based on Evidence”.

25 Regulation (EU) No 536/2014, supra note 19.

26 Marco Rizzi, “The Complex Case for Another Hard Look – Transnational Pharmaceutical Regulation and the Pedagogical Role of Courts” (PhD thesis on file at the European University Institute, 2015), pp. 155 et sqq.

27 Ibid.; for a recent discussion on the comparatively smaller role of product liability in the EU see Leeuwen, Barend Van and Verbruggen, Paul, “Resuscitating EU Product Liability Law?”, 5 European Review of Private Law (2015), pp. 899 et sqq.Google Scholar

28 As established for failure to warn claims by the US Supreme Court decision PLIVA, Inc. v Mensing 131 S. Ct. 2567, 2581 (2011) on the basis that if federal law requires generic manufacturers to use the same labeling as their brand-name counterparts it is impossible for them to simultaneously comply both with federal law and a state tort law duty to provide an enhanced label.

29 TTIP leaks, Document n.9, supra note 2, Art. X.13 “[EU: Analytical Tools] [US: Regulatory Impact Assessment]”.

30 EU Commission, “Technical Paper for Regulatory Cooperation on Generic Medicines”, supra note 22, at p. 1.

31 Wiener, Jonathan and Alemanno, Alberto, “The Future of International Regulatory Cooperation: TTIP as a Learning Process Towards a Global Policy Laboratory”, 78 Law and Contemporary Problems (2015), pp. 103 et sqq., at p. 104Google Scholar: “empirical research finds that U.S. and European risk regulation over the past four decades has exhibited overall average parity, with occasional divergences as selective precaution is applied on both sides to particular risks”.