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Civil society groups across the world have contributed to expanding accountability in the pharmaceutical industry through strategic litigation, particularly when it comes to issues of price transparency for vaccines and medicines.
This is according to Adrián Alonso of the Fundación Salud por Derecho (Right to Health Foundation), who noted that secrecy remained one of the “defining factors of the pharmaceutical sector”, from research and development to commercialisation and supply of products.
“Publicly shared information on medicine prices can be accessed by everyone without being depleted through use, which basically means that price information is a global public good,” said Alonso.
“Basically, this would allow purchasers to negotiate prices with good access to information on how other purchasers set their prices, enabling a more transparent and accountable mechanism of price-setting globally. However, most purchasers, including countries, health institutions and even some NGOs, have systematically embraced the signing of non-disclosure agreements, which impede access to this information.
“Civil society [organisations] have been an essential tool to make medicine information a global public good.”
Alonso was speaking at a webinar, The Role of Civil Society in Ensuring Pharmaceutical Transparency, on Thursday, 12 June. Other organisations represented at the event were the South African NGO Health Justice Initiative (HJI) and the Think Tank Medicines, Information and Power from the National University of Colombia.
Read more: Advocacy group makes court bid to lift veil of secrecy over SA’s Covid vaccine procurement
Covid-19 contracts in SA
The Health Justice Initiative, founded in 2020 during the Covid-19 pandemic, was a key force in the fight for transparency around vaccine contracts between pharmaceutical companies and the South African government.
At the time, South Africa was experiencing “gross vaccine apartheid”, according to Fatima Hassan, founder of HJI. Like many countries in the Global South, it was made to wait longer than states in the global north to access the first doses of vaccines.
/file/dailymaverick/wp-content/uploads/becs_fatimahassan.jpg "Health Justice Initiative founder Fatima Hassan. (Photo: Supplied)")
“Pharmaceutical companies were calling all the shots, they had unfettered power... they had asked us, as South Africans, to participate in full clinical trials for Pfizer, Johnson and Johnson, AstraZeneca... but we weren’t prioritised for early access. We contributed to the research and development of these vaccines on an accelerated basis in 2020, 2021, but we weren’t (at) the front of the line,” she said.
“That’s the particular context of why people were really angry [about] the contracts, which we were told were subject to non-disclosure agreements and to high levels of secrecy.”
Hassan noted that in South Africa, a democratic country, procurement using public resources was governed by principles included in the Constitution.
“The leverage that we had was a Constitution that could not be surpassed or trumped by the demands of the pharmaceutical company or industry,” she said.
HJI launched its case against the South African government in the high court in 2022, after an access to information request about the contents of the state’s contracts with pharmaceutical companies was denied.
“Government did raise the issue that they signed a confidentiality clause, they signed an NDA... They argued that we should have sued the pharmaceutical companies… They wanted the case deferred. But surprisingly, the court [acted] very quickly... [and] ruled in our favour,” said Hassan.
“It was a world first… that a court had ordered the disclosure of the contracts in an unredacted form within 10 days, with a cost order.”
When publishing the released contracts, HJI included a multistakeholder analysis of the legal documents, with input from medical and legal experts from around the world.
“What we found… [were] really serious cases of bullying [and] undermining of democratic practices in South Africa. The terms and conditions of each of the contracts were really to favour pharma. They were really one-sided… [and had] very high demands around secrecy and confidentiality obligations, and also around indemnification,” said Hassan.
“None of the vaccines would be released unless you set up a one-sided indemnification fund, which gave full indemnity to Pfizer and Johnson and Johnson against any and all forms of risk, even including late delivery of supplies.
“We also found discrepancies in the prices of what companies had said that they were going to charge the Global South [and] what was actually included in the contract. The prices we found were inflated, resulting in really gross cases of abuse, of profiteering, and then there was very little leverage given to Global South countries against late or non-delivery supplies.”
Hassan said the contract with Johnson and Johnson also prevented any export bans for products filled and finished in South Africa. She noted that once the court had ruled in HJI’s favour, the South African government was quick to switch from resisting civil society’s efforts to ensure transparency to acknowledging state actors were “bullied” into unreasonable agreements with pharmaceutical companies.
Covid-19 contracts in Colombia
A similar struggle unfolded in Colombia during the pandemic. The Colombian government and pharmaceutical companies collaborated to avoid the publication of vaccine contracts, with the state’s cooperation driven by contractual obligations, according to Claudia Patricia Vaca González, a Colombian pharmaceutical chemist and associate professor at the National University of Colombia, and founder of Think Tank Medicines, Information and Power.
“Pharmaceutical companies pressured countries all around Latin America to not disclose their vaccine purchase contracts, threatening that publication would constitute a breach of contract and jeopardise vaccine distribution,” said González.
José Daniel Rengifo Martinez, a member of Think Tank Medicines, Information and Power, and an academic researcher at the National University of Columbia said that the Colombian nonprofit International Institute of Anti-corruption Studies submitted an information request to Colombian public entity, the National Unit for the Management of Disasters.
“The response from this national unit to the civil society actor was that they were not allowed to [release information] because they signed the purchase contracts related to the Covid vaccines. They said they were not allowed to publish such contracts because there were trade secrets related to the prices of the Covid-19 vaccines,” he said.
Between 2021 and 2022, a long court battle played out between civil society organisations and the Colombian government, as well as pharmaceutical companies, around the release of the vaccine contracts. A final ruling in favour of the civil society organisations emerged in early 2022.
Strong precedents
Both Hassan and Martinez argued that the successful litigation against the South African and Colombian governments during the Covid-19 pandemic set important precedents when it came to transparency in the pharmaceutical sector.
“The story [is that] the bullying and the NDAs were a problem in this pandemic. The pharmaceutical industry is still insisting on using NDAs, even with humanitarian agencies,” said Hassan.
“It was HJI coming forward with the case, but obviously we had to build quite a strong coalition of partners who felt that this was an important case to do, and that it was relevant for us to try and actually break that secrecy and have a precedent for the next pandemic, or the next time a pharmaceutical company tries to bully the South African government into signing a contract with ridiculous terms and conditions, high prices and NDAs.”
Martinez said that the Covid-era ruling against the Colombian government and pharmaceutical companies set an important precedent for “future negotiations in these kinds of emergency situations related to the purchasing of vaccines and other pharmaceutical products”. DM