Author: Sean Flynn

Comments to USTR Submitted for ACTA: Thirty Professors Say It Requires Congressional Approval

Click here for selected comments to USTR on ACTA from Civil Society Groups Cick here for the complete docket of comments (ustr-2010-0014) on regulations.gov Comment by Thirty Law Professors: SUMMARY:   We write to call on the Obama administration to comply with the Constitution by submitting the Anti-Counterfeiting Trade Agreement (ACTA) to Congress for approval. The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce, which are at the heart of ACTA’s terms, are Article I Section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or approval. The unconstitutionality of the process by which the Obama Administration intends to implement ACTA is further highlighted by the fact ACTA will constrain U.S. law by locking in the policy choices ACTA makes and the requirements it imposes.  The choice of whether to adopt substantive constraints on U.S. law must be made with Congressional participation. That participation is even more critical here, because ACTA was drafted and negotiated under unprecedented and deliberate secrecy — a non-accountable process that excludes the meaningful participation of a wide range of interests. The process by which ACTA was created and the means by which the Obama administration intends to implement it is undemocratic and unconstitutional. Together, they...

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Call for sign ons: ACTA comment

Please join fellow legal academics in signing this draft statement to the administration on the constitutional problem with ACTA.  The submission is open for editing comments and signatures until FRIDAY FEBRUARY 11 AT 4PM eastern standard time.  The submission is open to any self identified “legal academic.” We welcome part time teachers and such and also academics from other disciplines that work on international trade law (international relations, etc.). FULL TEXT – Statement to the Obama Administration on the Constitutional Problem with ACTA To sign on or edit, send an email to me and cc Mike Palmedo (mpalmedo@wcl.american.edu). Please indicate if your signature relies on acceptance of any suggested edits. The initial signatories to the statement include myself, Brook Baker, Anthony Falzone, Lawrence Lessig, David Levine, Kevin Outterson, Frank Pasquale and Christopher Sprigman. The summary of the argument of the submission is pasted below. SUMMARY OF ARGUMENT We write to call on the Obama administration to comply with the Constitution by submitting the ACTA to Congress for approval. The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce that are at the heart of ACTA’s terms are Article I section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or...

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USTR Considering Pharmaceutical Pricing Restrictions in TPP; Refuses to Follow May 10th Agreement on IP-Medicines Issues

Peter Maybarduk (Public Citizen) and Sean Flynn (representing Forum on Democracy and Trade) met with USTR staff on February 3 to be briefed on the administration’s negotiation of the TPP with respect to the planned IP chapter and the rumored chapter on pharmaceutical reimbursement programs. This meeting was requested to be on the record. A member of the USTR’s press staff was present and tape recorded the meeting (contact Carol Guthrie at cguthrie@ustr.eop.gov). USTR staff asked to be referred to as “USTR staff” rather than be identified by name. These are notes from the meeting by Sean Flynn. Peter may have additions and those will be incorporated into an amended set of notes at www.infojustice.org Pharmaceutical chapter Sean briefed the USTR staff on state government concerns with USTR pressing for new international restrictions on pharmaceutical reimbursement programs. He noted that in other areas USTR has announced publicly that is pushing for certain topics to be within the agreement. We know, for example, that the US supports inclusion of an IP chapter and an investment chapter and that discussions have taken place between countries on those chapters. We would therefore like USTR to state on the record whether it is proposing a pharmaceutical chapter, for example a chapter similar to those included with Australia and Korea. USTR first said it could not comment on discussions had between countries. When pressed,...

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U.S. State Legislators Call for Halt of Trade Restrictions on Pharmaceutical Pricing

On Friday, an organization of state legislators passed a resolution calling on the U.S. to halt the use of trade agreements to enact international disciplines on pharmaceutical pricing programs. The resolution was passed at the winter meeting of the National Legislative Association on Prescription Drug Prices, an organization of state legislators that work on health issues. The resolution specifically targets the ongoing negotiation of the Trans-Pacific Partnership (TPP), a plurilateral trade agreement among eight nations. To date, no negotiating text has been publicly released. But the branded drug lobby has requested the inclusion of a chapter in the agreement that would require countries to “appropriately recognize the value of patented medicines“ in public drug reimbursement programs and provide appeals for drug manufactures to challenge listing and reimbursement decisions of public health authorities. As explained in the resolution, public health programs run by states, including the administration of Medicaid drug benefits for over 40 million Americans, use the same types of price restraining preferred reimbursement formularies (known as preferred drug lists, or PDLs) as foreign governments. Many federal programs, including drug programs for Medicare and veterans hospitals, achieve reductions on drug prices through similar preferred reimbursement programs. The resolution recounts that these effective programs would be threatened by the kind of new international restraints on pharmaceutical pricing programs that the drug industry seeks: “Trade Agreements are reciprocal by nature, and...

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EU Approves ACTA – Leaked EU Letters Refer to "Treaty"

The EU has passed ACTA, in a close vote  with a 16 vote margin. [See the official record of the vote.]  The full text of the resolution is available here. There have also been two version of a leaked letter [one with comments, and one without comments] between De Gucht and ALDE MEPs discussing the vote. The annotated version appears to have been written by ALDE staff but I am not sure. Interesting that De Gucht calls ACTA is a “treaty,” an issue that raises competency issues in the EU as well as the U.S. USTR refuses to use that term, although it clearly is under international law. But treaties require congressional consent. Of course, so do executive orders on matters dealing with Article I sec. 8 powers of congress. For more on ACTA’s constitutional problem, please see my ealier blog post:...

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