Trade Advisory Committees June 2010

Public Health Call for Representation on Trade Advisory Committees, December 1, 2010

To: U.S. Trade Representative Ron Kirk

Secretary Gary Locke, Department of Commerce

We note the written statement of members of the Committee of Chairs of the Industry Trade Advisory Committees dated October 12, 2010, addressed to the U.S. Department of Commerce (DOC) and the U.S. Trade Representative (USTR). We regret that the meeting at which this statement was presented was not posted on the website of the Federal Advisory Committee Act. Nevertheless, we wish to reaffirm our priorities regarding the legally mandated representation of the public in setting trade policy for the U.S., including through representation on trade advisory committees.

In summary, we urge the Administration to immediately create a Tier 2 committee for public health, and to expand access to policy-making for a range of public interest organizations. At the same time, we call for appointing additional members to Tier 3 committees in order to represent a fair balance of interests, as legally mandated.

The importance of these appointments has been upheld by judicial orders and documented and affirmed since 2000 via several GAO publications, formal correspondence and meetings with the USTR, testimony to the Trade Subcommittee of the Committee on Ways and Means of the U.S. House of Representatives in July, 2009, and comments for the record in May, 2010.

We value the recognition by the DOC and USTR that trade policy has increasingly become a matter of broad public concern since the passage of the original Trade Act in 1974. Trade advisory committees are subject to the requirements of the Federal Advisory Committee Act (FACA) which requires that each advisory committee covered by the Act be fairly balanced in terms of points of view represented and committee functions performed. One of the primary purposes of FACA was to end industry domination of advisory bodies. The legislative history of FACA “shows that the fair balance requirement was intended to ensure that persons or groups directly affected by the work of a particular advisory committee would have some representation on the committee.” [1]

The FACA fair balance requirement applies to the trade advisory committees established under Section 135 of the Trade Act. Over the years, Section 135 was amended to include additional interests within the advisory committee structure, such as the services sector and state and local governments. Today, the structure of the US Trade Advisory Committees is extremely imbalanced, with domination by industries whose activities have an impact on public health, and notable and problematic absence of representation from the public health community.

Since 1974, factors have created the imperative to widen official consultation on trade negotiations and policy by the Administration with a wide array of parties: the creation of the World Trade Organization and the inclusion of services, intellectual property and agriculture within the sphere of trade negotiations; the pursuit of investor-state trade challenges; the acceleration of global financial and commercial transactions; and dramatic swings in the stability of national economies, attended by widespread civil unrest.

These developments have had particular salience for public health, and we are gratified to note that in response to consistent approaches over the last six years, the Administration has wisely included public health representatives on ITACs 3 and 15, and on the Agricultural Trade Advisory Committee on Cotton, Tobacco, Peanuts and Planting Seeds. We regard these initial appointments as important precedents. We note further that since these appointments the work of those committees has proceeded without disruption, while providing a new[MSOffice1] but still limited level of transparency and accountability to the public health community.

We continue to seek broader and more consistent opportunities to present a public health viewpoint on trade, and to interact with experts in the arena from the Administration, Congress and other committee members. HR 2293/S 1164 proposes precisely the kind of Tier 2 Public Health Advisory Committee on Trade that the ITAC Committee Chairs describe. The creation of such a committee, and the opportunity for formal communication at periodic plenaries, would certainly mark an important milestone in setting a 21st century trade agenda.

Given the confluence of interests and agreement on that issue, we urge the Administration to take the following steps:

1. Codify the creation of a Tier 2 Public Health Advisory Committee on Trade. In developing the charter and making appointments to such a committee, we urge recognition of public health concerns regarding: the relationship of trade to sustainable economic development; public health regulations and the authority of the government to regulate in the interest of public health, including by adopting sanitary and phytosanitary rules, technical standards, regulations with respect to the production, distribution, sale, or advertising of tobacco, alcohol, and harmful substances, and standards to ensure clean and safe food, air, and water; vital human services and systems, including health care and public health services and systems, water supply and sanitation services and systems, and licensing and cross-border movement of persons employed in the provision of such services or the development of such systems; occupational safety and health; and matters relating to access to affordable pharmaceuticals.

2. Appoint public health representatives on additional Tier 3 committees, including: Chemicals and Pharmaceuticals (ITAC 3), Consumer Goods (4), Distribution Services (5), Information and Communications Technologies, Services, and Electronic Commerce (8), Services and Finance Industries (10), Customs Matters and Trade Facilitation (14), Intellectual Property Rights (15), and Standards and Technical Trade Barriers (16).

We look forward to an opportunity to review these proposals with your offices in the near future.

Sincerely,

Center for Policy Analysis on Trade and Health (CPATH)

American Public Health Association

California Public Health Association-North

Health Alliance International

Institute for Agriculture and Trade Policy

Maquiladora Health & Safety Support Network

National Women's Health Network

Oxfam America

Physicians for Social Responsibility, SF-Bay Area Chapter

[1] GAO-02-876 International Trade p. 57.

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CPATH has led the campaign to open up the USTR's influential Trade Advisory Committees.

USTR called for comments on this topic by May 25, 2010.

The consensus statement below was submitted for the record with individual and organizational signatures on May 25, 2010.

In addition, CPATH submitted a statement from our organization (see introduction and link below).

Watch CPATH'S Globalization and Health listserve for updates.

The request for comments stated:

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

DEPARTMENT OF COMMERCE

International Trade Administration

Docket Number ITA-2010-0001

[Docket Number: 100416189-0189-01]

Request for Public Comment on the Scope of Viewpoints Represented on the Industry Trade Advisory Committees

AGENCIES: Office of the United States Trade Representative and U.S. Department of Commerce, International Trade Administration.

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The Office of the United States Trade Representative (USTR) and the Department of Commerce initiated a joint review of the Industry Trade Advisory Committee (ITAC) component of the trade advisory committee system. As part of this joint review, USTR and Commerce are seeking comments and suggestions from the public on the appropriate scope of representation on the ITACs. Specifically, the Administration has asked:

How the proposed viewpoint would improve the quality of information and advice provided to the Secretary and the USTR through the ITACs; how the proposed specific perspective would add value and contribute to the ITACs' mission to provide information and advice addressing the concerns of specific industry sectors to assist the USTR and the Secretary in developing U.S. trade policy and negotiating positions; how such viewpoints could be effectively incorporated into the existing ITAC structure (i.e., on which specific ITAC would that viewpoint be appropriate); and whether such viewpoints may be more effectively incorporated into other fora within the trade advisory system.

________________________________________________________________________

PUBLIC
                                    HEALTH RESPONSE

May 25, 2010

Submitted on-line via www.regulations.gov

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

DEPARTMENT OF COMMERCE

International Trade Administration

Docket Number ITA-2010-0001

Request for Public Comment
                                    on the Scope of Viewpoints Represented on the Industry Trade Advisory Committees

We appreciate the opportunity to comment on the appropriate scope of representation
on Industry Trade Advisory Committees, on behalf of our organizations representing
a wide scope of public health professionals
                                    and advocates.

Our views, in summary, are:

1. The forces that shape our modern world have transformed both the way we conduct trade, and our ability to protect and improve the public’s health. Since the Trade Act was adopted in 1974, there have been dramatic changes in financial markets, communications technology and transportation that affect the prosperity and well-being of individuals and nations. In response, trade agreements have moved beyond tariffs and now address a wide range of issues that directly affect our health and our economic and social sustainability. Trade agreements now address:

Domestic regulations, including measures to protect the environment, safeguards against the deadly effects of tobacco consumption, and limits on exploitive practices of internet gambling companies
Services, including clinician licensing, access to health care, patient privacy, and distribution of hazardous substances
Intellectual property rights, including patents and trademarks, that affect access to affordable and safe medicines, and advertising and marketing of tobacco and alcohol products
Consumer goods and food processing
Government procurement affecting public functions such as water supply and health care, as well as local economic development
Agriculture, affecting food safety and the fate of traditional livelihoods in rural areas
Investment rules, affecting national sovereignty over public health protections, as well as the movement of finance capital

It is critically important to assure that the U.S. trade advisory committee system keeps pace with these developments, and provides for effective and timely communication among trade policy-makers, and public health advocates and professionals.

2. Trade agreements have important implications for public health. We have identified the following arenas of particular concern:

Sustainable economic development

The rights of national, state and local governments to regulate on a wide range of issues to

protect public health

Occupational safety and health

Health care services

Movement and licensing of health care workers, including clinicians

Access to affordable medicines, including incentives for innovation that de-link the cost of research and development from prices

Alcohol control

Tobacco control

The environment

3. U.S. trade policy on public health issues is substantially influenced by trade advisory committees. These committees are mandated by law to represent a range of public interests. Currently there is wide representation on these committees by industries that influence health: pharmaceuticals, tobacco, chemicals, alcohol, health care services, and processed foods. There is virtually no representation by public health.

4. The Administration has the authority by law to expand the membership of Industry Trade Advisory Committees. Greater transparency and accountability in public policy on trade and health will be beneficial. According to the Government Accountability Office, “Congress established the trade advisory committee system in Section 135 of the Trade Act of 1974 as a way to institutionalize domestic input into U.S. trade negotiations from interested parties outside the federal government. This system was considered necessary because of complaints from some in the business community about their limited and ad hoc role in previous negotiations. The 1974 law created a system of committees through which such advice, along with advice from labor and consumer groups, was to be sought.

“The trade advisory committees are subject to the requirements of the Federal Advisory Committee Act (FACA), with limited exceptions pertaining to holding public meetings and public availability of documents. One of FACA’s requirements is that advisory committees be fairly balanced in terms of points of view represented and the functions the committees perform.”[1]

5. Public Health Representation would add value and contribute to the ITACs’ mission to provide information and advice to assist USTR and DOC in developing trade policies and negotiating positions. Such viewpoints could be effectively incorporated into the existing ITAC structure. In addition, they should be incorporated into the Tier 1 ACTPN, and effectively expressed through a Tier 2 Public Health Advisory Committee on Trade.

6. We support the following improvements, which are well expressed and proposed in

H.R. 2293/S.1644:

A Tier 2 trade advisory committee dedicated to public health representatives: the Public Health

Advisory Committee on Trade.

Appointment of at least one public health representative on the Tier 1 Advisory Committee on

Trade Policy and Negotiation (ACTPN).

Appointment of public health, labor, environmental and consumer representatives to all Tier 3 trade advisory committees.

Greater transparency and accountability by all advisory committees.

American Cancer Society Cancer Action Network (ACS CAN)

American Medical Student Association, John Brockman, President, Elizabeth Wiley, JD MPH,

and Shazia Mehmood, Co-Legislative Directors

American Public Health Association (APHA) International Health Section, Miriam Labbok,

Chair; Malcolm Bryant, Chair-Elect

APHA Medical Care Section, Mona Sarfaty MD MPH, Chair

APHA Occupational Safety and Health Section, Katherine McPhaul, Chair

APHA Public Health Education and Health Promotion Section, Johanna M. Hinman MPH,

CHES, Chair

APHA Forum on Trade and Health, Shelley White MPH, OTR/L, Chair

California Public Health Association- North, David Spath, Chair

Center for Policy Analysis on Trade and Health (CPATH), Ellen R. Shaffer PhD MPH, and

Joe Brenner MA, Co-Directors

Consumers Union, DeAnn Friedholm, Director, Health Reform

Edmonds Institute, Beth Burrows, President/Director

Friends Fiduciary Corporation, Connie Brookes, Executive Director

Global Health through Education, Training and Service (GHETS)

Health Alliance International, Mary Anne Mercer DrPH, Deputy Director

Health GAP, Asia Russell

Institute for Agriculture and Trade Policy, David Wallinga MD, Director, Food and Health,

Karen Hansen-Kuhn, International Program Director

Knowledge Ecology International, Judit Rius San Juan

Maquiladora Health & Safety Support Network, Garrett Brown MPH, CIH, Coordinator

Maryknoll Office for Global Concerns, Kathy McNeely

Midwest Coalition for Responsible Investment, Barbara Jennings, CSJ, Coordinator

Missionary Oblates of Mary Immaculate, Justice Peace/Integrity of Creation Office,

Christina Cobourn Herman

Mothers of Marin Against the Spray (MOMAS), Debbie Friedman

National Nurses United, AFL-CIO, Karen Higgins, Jean Ross and Deborah Burger, Council of

Presidents

National Women’s Health Network, Cynthia Pearson, Executive Director

National Legislative Association on Prescription Drug Prices, Sharon Treat

NETWORK: A National Catholic Social Justice Lobby

Our Bodies Ourselves, Judy Norsigian, Executive Director

Oxfam America

Physicians for Social Responsibility, San Francisco-Bay Area Chapter, Robert M. Gould

MD, President

Sisters of St. Francis of Philadelphia, Tom McCaney, Associate Director, Corporate Social

Responsibility

SSM International Finance, Inc., Sister M. Cecile Paulik

Martin Donohoe, MD, FACP, Adjunct Associate Professor, School of Community Health,

Portland State University, Portland, Oregon

Nicholas Freudenberg, DrPH, Distinguished Professor of Public Health, Hunter College/City

University of New York

Joyce Lashof, Dean Emerita, School of Public Health, University of California at Berkeley

Kevin Outterson, Associate Professor of Law & Co-Director of the Health Law Program, Boston

University School of Law

Larry J. Platt, MD

Theodora Tsongas, PhD, MS, Adjunct Associate Professor, School of Community Health,

Portland State University, Portland, Oregon

Karen Valenzuela, Chair, Thurston County Board of Health, Washington

[1] Government Accountability Office. International Trade. Prior Updates of the Trade Advisory System Offer Insights for Current Review. Statement of Loren Yager, Director, International Affairs and Trade. Tuesday, July 21, 2009. GAO-09-842T

Overview

We appreciate the opportunity to comment on the appropriate scope of representation on Industry

Trade Advisory Committees (ITACs), on behalf of the Center for Policy Analysis on Trade and

Health (CPATH).

We are however disappointed that there has been so little progress on the well-recognized need to

include public health representation on all levels of trade advisory committees. It has been a full

eight years since the Government Accountability Office documented this gap, five years from the day

in 2005 that public health organizations formally approached the previous Administration on this

topic, and almost a year since the expression of bipartisan support at the hearing by the Trade

Subcommittee of the House Ways and Means Committee.

The Administration has the mandate and authority to take decisive action, and should do so.

We will discuss:

1. Public health views are essential to assure that the rapidly transforming global economy

improves people’s lives.

2. A public health presence on all three tiers of trade advisory committees is required for a

legitimate balance of interests. Public health representatives on the Tier 1 ACTPN, a cross-cutting

Tier 2 Public Health Advisory Committee on Trade (PHACT), and public health representatives on

Tier 3 would improve the quality of information and advice provided to the USTR and the Secretary

of the Department of Commerce. Health-related industries are robustly represented on the

trade advisory committees, including pharmaceuticals, tobacco, health insurance, processed

foods, and alcohol beverages.

3. How the public health perspective would add value and contribute to the ITACs’ mission to

provide information and advice to assist the USTR and the Secretary of the Department of

Commerce in developing U.S. trade policy and negotiating positions.

4. The Administration must act to add public health voices to trade advisory committees.

In many respects the goals of trade and public health are harmonious. A great deal of contemporary

discussion addresses the imperative to increase the wellbeing of individuals and communities while

alleviating poverty. Trade policy can play an important role in achieving this agenda. To some

degree the present submission illustrates areas of difference between public health and commercial

interests, without delineating areas of agreement that do exist. We acknowledge the concern of some

present trade advisory committee members that introducing other viewpoints would present barriers

to the committees' work. To the contrary, we submit that to the extent that trade policies are

controversial and unpopular, those policies are barriers to progress. Creating a regular forum that can

include exploring and resolving mainstream concerns about current policies would be beneficial and

is vital for discovering creative solutions.