TWN Info Service on Health Issues (May 09/01)
11 May 2009
Third World Network

Swine Flu Update

The following article reports on the swine flu situation; comments on the pork industry; and the response of four international bodies.

The article is reproduced with permission from South-North Development Monitor SUNS #6694, 6 May 2009.

With best wishes
Evelyne Hong

Health: WHO monitoring swine flu, responses and preparedness
By Riaz K. Tayob, Geneva, 5 May 2009

The World Health Organization (WHO) on Tuesday said that 21 countries have officially reported 1,124 cases of influenza A (H1N1) infection, with Mexico reporting the most at 590 laboratory confirmed human cases of infection, including 25 deaths. The United States has the next highest number of 286 laboratory confirmed human cases, with one death.

Apart from Mexico and the United States, as of 5 May, the following countries have reported laboratory confirmed cases with no deaths -- Austria (1 case), Canada (140), China, Hong Kong Special Administrative Region (1), Costa Rica (1), Colombia (1), Denmark (1), El Salvador (2), France (4), Germany (8), Ireland (1), Israel (4), Italy (2), Netherlands (1), New Zealand (6), Portugal (1), Republic of Korea (1), Spain (54), Switzerland (1) and the United Kingdom (18).

The WHO has been monitoring the spread of swine flu and has been providing updates on the situation on a daily basis.

On 29 April, the WHO raised its warning on swine flu to level 5, the second highest level in its system of categorizing phases of pandemic alert. Level 5 indicates that a pandemic is imminent, while level 6 refers to a full pandemic affecting more than one WHO region.

At that time, there were nine affected countries with 148 cases of officially reported swine flu cases.

In a briefing to UN member states on 4 May, UN Secretary-General Ban Ki-Moon said that the UN had no plans to raise the global alert level to phase 6 at this time. He however stressed the need for vigilance and preparedness as the outbreak continues to evolve.

"There is still much that is not known about this new strain and the dangers it poses. We should not allow intense media coverage to alarm us. At the same time, we should avoid a false sense of security if such coverage declines," he told member states in his briefing on the current situation.

"In the face of uncertainty, we must be vigilant," said Ban, adding that "We must pay close attention to the advice of the World Health Organization."

The WHO has recently come under criticism that it was over-reacting to the pandemic threat. But the WHO Director-General, Margaret Chan, has said that while she hoped the virus fizzles out, if it did not, the world may be heading for a big outbreak, and hence she would rather over-prepare than under-prepare.

There are concerns over the prevalence of swine flu with different numbers being reported from different sources, and some which have been revised downward. This has been attributed variously to further investigations of cases, a lack of testing capacity (including the US) and a change in the focus of testing.

Access to adequate supplies of medicines, and possible vaccines, for treatment of pandemic influenza for developing countries remains under consideration at the WHO.

Following the challenges posed by avian flu, two years of negotiations at the WHO have not culminated in a system of virus sharing of pandemic influenza and of benefit sharing, particularly for the benefit of resource-constrained developing countries.

After its avian flu outbreak, Indonesia had stopped sharing viruses (but has subsequently resumed) as their trust in the WHO system had broken down. The WHO had previously confirmed that patents have been taken on avian influenza viruses that countries, such as Indonesia, had shared with it.(See SUNS #6254 dated 21 May 2007.)

The next round of negotiations on this issue on 15 May pits some developing countries, seeking access to treatments and benefit sharing, against developed countries, whose position has been virus sharing without any obligations on their manufacturers.

The swine flu outbreak has also prompted calls for changing the name of this flu from swine flu to H1N1, as pork producers are being negatively affected. The pork industry seeks to limit damage to its sales, as pork prices are falling, and has asked for the name change. In part, this is done by seeking to break the link between pork and the H1N1 virus.

However, some commentators are more critical, and one sees the pork industry as seeking to blur the science of swine flu.

An article titled "Pork industry is blurring the science of swine flu" by Debora MacKenzie in the New Scientist on 30 April states that it is clear that the swine flu virus has come from pigs. It pointed out that the virus "comes from a tribe of flu viruses that emerged in US pigs in 1998 and became the dominant pig flu in North America."

Noting that the FAO said it was "mobilizing a team of experts to assist government efforts to protect the pig sector from the novel H1N1 virus by confirming there is no direct link to pigs", the article said "Normally, this is the kind of comical statement you expect to hear from the industry itself. Sure enough, the US company Smithfield, the world's biggest hog producer and owner of the pig plant in Mexico near the source of this virus, says its Mexican operations are submitting samples from their swine herds to confirm the absence of North American influenza'".

"Get that? North American flu. Not swine flu. Such is the power of the pork industry that even the top US health officials at the Centers for Disease Control and Prevention are coming under painfully visible pressure not to call it swine flu," said the New Scientist article. "But let us be clear: the genetic sequences, which admirably are all being posted publicly, overwhelmingly confirm that the virus from Mexico is one of a type that has been circulating aggressively in North American pigs since 1998."

Referring to the latest scientific details that emerged from Andrew Rambaut's laboratory at the University of Edinburgh, the author said that it is clearer than ever that there is a direct link from pigs to the human swine flu virus. "You probably can't catch it from pork. The pork industry, however, cannot really claim to be uninvolved," the New Scientist article concluded.

Meanwhile, four international organisations - the UN Food and Agriculture Organization (FAO), the World Organization for Animal Health (OIE), the World Health Organization and the World Trade Organization (WTO), issued a joint statement on 2 May to the effect that pork products handled in accordance with hygienic practices are not a source of infection.

"In light of the spread of influenza A (H1N1), and the rising concerns about the possibility of this virus being found in pigs and the safety of pork and pork products, we stress that pork and pork products, handled in accordance with good hygienic practices recommended by the WHO, FAO, Codex Alimentarius Commission and the OIE, will not be a source of infection," said the joint statement.

"To date there is no evidence that the virus is transmitted by food. There is currently therefore no justification in the OIE Terrestrial Animal Health Standards Code for the imposition of trade measures on the importation of pigs or their products," the statement added.

The WTO associating itself with the three other organizations to issue this statement has been challenged by a well-known US trade law expert and Professor of Law at the George Washington University Law School, Prof Steve Charnovitz., who has challenged the WTO's competence to do so in this area - both of trade law and health safety.

In a post, titled "Mission Creep at the WTO", on the International Economic Law and Policy Blog on 4 May, Prof. Charnovitz questioned whether the statement was international trade law, and whether it could be used in a WTO dispute case to preclude a defence to a trade measure on pigs if it were challenged in the WTO.

If the statement is law, he questioned whether it is within the competence of the WTO to say so. Also, what authority did the WTO use to join in the statement. Did the WTO enact it under WTO Agreement Article V: 1 authority, and if so, does that make the statement a covered agreement, he asked.

Moreover, if the statement is only soft law, rather than hard law, Charnovitz has argued, there is still a question of what authority the WTO used to join in the statement. Was it Article III: 2 authority? He also queried as to what internal procedures were used within the WTO to agree to the statement.

Charnovitz complains in this connection that the WTO continues to be "medieval" in its transparency practices - and there are no minutes of the General Council or any advance notice of the WTO proposal to enact the statement or any request for public comment that have been posted on the WTO website. Thus, "the WTO does not use the best practices for administrative procedure that it demands of its Members under the covered agreements."

He also wonders on the implications of the WTO Secretariat or someone in the Secretariat signing on to such a statement without express authority from the General Council, and asks whether at least the WTO Committee on Sanitary and Phytosanitary measures had signed off on the action by the WTO. Using this as a precedent, could the WTO join an ILO Statement on need for fundamental worker rights or a UN Framework Convention on Climate Change statement on the need for emissions reduction?

And if the statement proves to be wrong, and if one learns that pigs or pig products transmit the virus, and a (member) state held off on measures upon the advice of the WTO, Charnovitz asks, what responsibility would the WTO have for any harm caused to that state, and would the State be able to bring a suit against the WTO in its municipal courts. While ordinarily, the WTO could claim immunity in such a suit under Article VIII: 4, would it apply if the WTO action lacked any legal justification under its own rules, Prof. Charnovitz wonders.

The post, and comments on it, can be found at The blog site is associated with and run by prominent US trade law experts and professors.

Meanwhile, in a press statement released on 4 May, Third World Network (TWN) said that the current outbreak of swine flu has again highlighted concerns that people in developing countries will have little or inadequate access to influenza vaccines or anti-viral treatments.

It underscored the urgent need for establishing a fair and equitable global system for the sharing of the flu vaccines as well as anti-viral treatments, on the basis of need. The current discussions at the WHO on the sharing of viruses and the sharing of benefits needs to conclude with the developing countries ensured that they will have access to affordable anti-virals and vaccines and the appropriate technology to make such products.

TWN recommends that the best solution is to help developing countries build their own capacity to manufacture the vaccines and other treatments that are needed, so that enough can be available for all that require them when there is an outbreak. +