The U.S. Trade Representative’s 2011 Special 301 Report was released yesterday afternoon at about 4pm. (James Love from Knowledge Ecology International has an excellent blog on it here.)
Overall, this year’s Special 301 Report shows relatively little effort to respond to public interest submissions outside of the medicines issue. Even on medicines, the section on the Doha Declaration is word for word what it said last year and there appears to be little variance in the policies demanded this year (but that will take some more scrubbing and comparing to previous reports to decipher).
Notably, in its new “best practices” section, there is no mention of any best practice submitted by a public interest organization, of which there many. It is fairly clear that USTR feels no requirement to respond to a divided record before it. That may open it up for charges of arbitrary adjudication under U.S. administrative law.
Many TPP members are mentioned, with New Zealand’s pharmaceutical pricing program singled out for the first time in such detail. 301 was used similarly during TRIPS negotiations, although most now recognize that the program has lost its bite – it is fairly well accepted (except by Pharma) that it would violate WTO rules to actually sanction a WTO member under special 301 with no WTO finding. This was admitted by IIPA counsel Steve Metalis in a recent event on 301 at PIJIP. IIPA no longer asks for priority foreign country designation (an immediate threat of sanctions), although pharma still does.
Despite the lost bite, the program still has an unfortunate effect. That was very visible in the submissions of Thailand who reported to USTR in the hearings that it had appointed pharma reps to pharmaceutical pricing and policy boards and taken other steps to respond to USTR’s continued complaints about “transparency” in Thai policy.
