TWN Info Service on Health Issues (Apr14/01)
3 April 2014
Third World Network

WHO: No consensus on draft policy on non-State actors
Published in SUNS #7777 dated 3 April 2014

Geneva, 2 Apr (K. M. Gopakumar) -- Member States of the World Health Organisation (WHO) are unable to agree on a draft framework and policy on the organisation's engagement with "non-State" actors.

A two-day informal consultation that took place in Geneva on 27-28 March 2014 concluded with an understanding to entrust the WHO Secretariat to submit a new version of the policy, taking into consideration the comments from Member States, to the World Health Assembly (WHA) through the Program Budget and Administrative Committee.

The WHA is to decide on the future process regarding the draft framework and policy on NSAs (non-State actors).

A developing country delegate told Third World Network (TWN) that the WHA is to decide on the next steps with regard to the finalisation of a draft framework and policy and would not take any decision with regard to the adoption of the draft framework and policy.

The draft framework for engagement with NSAs is part of WHO's reform agenda which was kick-started in 2011. It was prepared after two face-to-face consultations and two web-based consultations. The last informal consultation, which was open to both NGOs and Member States, took place in Geneva on 17-18 October 2013.

According to the WHO draft, NSAs include non-governmental organisations, private sector entities, philanthropic foundations and academic institutions.

(http://www.who.int/about/who_reform/non-state-actors/en/)

WHO is currently collaborating with all these NSAs without a comprehensive policy for such engagement.

Some of the NSAs, especially philanthropic foundations and private sector entities, provide financial and in-kind resources to WHO and are thus in a position to influence the public health agenda at times to further business interests.

For instance, WHO in 2012 received US$264,167,357 as voluntary specified funds from Bill and Melinda Gates Foundation which is more than the US Government's voluntary specified contribution of US$208,109,268.

Interestingly, the Bill and Melinda Gates Foundation does not provide any core voluntary funding. Core voluntary funding provides spending flexibility to the Secretariat.

In the absence of a policy, the last WHA put on hold the implementation of certain elements of a global strategy for the control and prevention of non-communicable diseases, which is to be implemented through partnerships with NSAs.

TWN learned that many Member States are concerned over the draft framework and policy with regard to the proposal on secondment, a lack of effective safeguards to protect WHO from undue influence of private and philanthropic organisations, and the silence of the framework with regard to engagement with philanthropic and academic institutions.

Many Member States also said that there is not sufficient time to study the draft framework and policy and to take a decision with regard to its adoption at the upcoming WHA. Further, Member Sates also pointed out that the Secretariat has not provided existing documents relevant for a comprehensive understanding of the framework and policy for NSA engagements such as a conflict-of-interest policy.

A diplomat who attended the consultation said that the United States and the United Kingdom complained that the draft policy sets a high degree of scrutiny for the private sector compared to other NSAs.

The Secretariat's document contains the following parts:

• Draft Overarching Framework for Engagement with Non-State Actors;
• WHO Policy and Operational Procedures on Engagement with Non-governmental Organisations (Draft NGO Policy);
• Draft WHO Policy and Operational Procedure on Engagement with Private Sector Entities (Draft Private Sector Policy);
• Draft WHO Policy and Operational Procedures on Management of Engagement with Non-State Actors (Draft Management Policy) defining the common policies and processes applied in the management of WHO's engagement with all non-State actors; and
• Draft of a glossary on definition of terms.

The International Baby Food Action Network (IBFAN) has strongly criticised the WHO's draft framework and policy on NSAs.

IBFAN stated that: "Despite the many statements of WHO's Director General, Margaret Chan, that WHO's policies, norms and standards setting processes should be protected from commercial influence, if the new proposals were to be adopted, the corporate influence would increase. IBFAN fears that this would compromise WHO's integrity, independence and its ability to fulfill its mandate".

(See: http://info.babymilkaction.org/pressrelease/pressrelease26mar14)

The proposed overarching framework sets the basic principles, boundaries and types of interaction for all NSAs.

The principles for interaction with NSAs are: Demonstrate a clear benefit to public health; Respect the intergovernmental nature of WHO; support and enhance the scientific and evidence-based approach that underpins WHO's work; be actively managed so as to reduce any form of risk to WHO (including conflicts of interest); be conducted on the basis of transparency, openness and inclusiveness.

The boundaries are: Decision-making by the governing bodies is the exclusive prerogative of Member States; WHO's processes in setting norms and standards must be protected from any undue influence; WHO does not engage with industries making products that directly harm human health, such as tobacco or arms; engagement with non-State actors must not compromise WHO's reputation.

The boundaries clearly exclude any engagement with the tobacco and arms industry. However, it is not very clear whether the policy excludes engagement with pharmaceutical firms that work against WHO, which has established policies such as the use of flexibilities in the World Trade Organisation's intellectual property rights agreement.

Often, pharmaceutical multinational companies work against the use of these flexibilities. Recently, a set of emails leaked to the public showed that Pharmaceutical Research and Manufacturers of America (PhRMA) had planned a campaign against the proposed pro-public health changes in the South African patent law.

(http://www.fin24.com/Economy/South-Africa/TAC-hits-out-at-Pharmagate-20140117)

The WHO document identifies five types of interaction viz. participation, resources, evidence, advocacy and technical collaboration.

Both draft policies viz. draft NGO policy and draft private sector entities policy spell out policy and operational procedures that relate to interactions with NGOs and the private sector. It sets the norms for all five types of interaction.

Both the policies set the same level of treatment for NGOs and the private sector and thus completely ignore the inherent risk of engagement with the private sector, which works primarily for profit. There are no new safeguards against engagement with the private sector, including business associations and business interested NGOs.

[Currently, public interest NGOs and business interest NGOs and business associations are categorised as NGOs. All the three entities have official relations with the WHO. Often, many "NGOs" are believed to be the front organisations for pursuing business interests. Many patient organisations, for instance, in official relations with the WHO, receive substantial funding from pharmaceutical companies and often speak in support of pharmaceutical companies during WHO governing body meetings.]

The most worrying part of the draft NGO and private sector policies is with regard to the acceptance of resources and deployment of NGO and private sector staff in the WHO on the basis of secondment.

The draft NGO policy allows the acceptance of resources from NGOs and also provision of resources to NGOs from the WHO. Similarly, the draft policy on private sector entities states:

• Paragraph 15: "Funds may be accepted from private sector entities whose business is unrelated to that of WHO, provided they are not engaged in any activity that is incompatible with WHO's work."
• Paragraph 16: "Funds may not be sought or accepted from private sector entities that have themselves or through their affiliated companies have a direct commercial interest in the outcome of the project toward which they would be contributing, unless approved in conformity with the provisions on clinical trials or product development, set out below."
• Paragraph 17: "Caution should be exercised in accepting financing from private sector entities that have even an indirect interest in the outcome of the project (i. e. the activity is related to the entities' field of interest, without there being a conflict as referred to above). In such event, other commercial enterprises having a similar indirect interest should be invited to contribute, and the reason clearly described if this does not prove possible. The larger the proportion of the donation from any one source, the greater the care that should be taken to avoid the possibility of a conflict of interest or appearance of an inappropriate association with one contributor."
• Paragraph 18: "Unspecified financial and in-kind contributions from private sector entities to WHO programmes are only acceptable under the following conditions: (a) the contribution is not used for normative work; (b) if a contribution is used for activities other than normative work in which the private sector entity could have a commercial interest, the public health benefit of the engagement needs to clearly outweigh its potential risks; (c) the proportion of funding of any activity coming from the private sector cannot be such that the programme's continuation would become dependent on this support."
• Paragraph 19: "The acceptance of donations (whether in cash or in kind) should be made subject to the following conditions: (a) The acceptance of the donation does not constitute an endorsement by WHO of the private sector entity, its activities, products or services; (b) The donor may not use the results of WHO's work for commercial purposes or seek promotion of its donation; (c) The acceptance of the donation does not award the donor with any privilege or advantage; (d) The acceptance of the donation does not offer the donor any possibility for advising, influencing, participating in, or being in command of the management or implementation of operational activities. WHO keeps its discretionary right to decline a donation, without any further explanation."

The proposed policy thus does not provide any effective safeguard against the dangers of accepting finance and in-kind resources from non-State actors like private sector entities and NGOs. These draft policies thus institutionalise the danger of funder-driven agenda setting in the WHO.

The draft policies also completely ignore the suggestion to address the crucial issue of conditional funding or voluntary contributions tied to specific programs, which set the funder-driven program priority setting. One of the prominent suggestions was the creation of a pool in which donors are free to contribute and the Secretariat would have the flexibility to spend on underfunded but important public health priorities. The draft policies do not put any restrictions on receiving financial contributions from NSAs especially from private sector entities to specific programs in the form of tied funds.

The language in paragraph 20 of the draft private sector policy gives the discretion to the WHO Director-General without setting a clear policy direction. It states: "The Director-General can set up mechanisms of pooled donations from multiple sources, if the mechanisms are designed in such a manner as to avoid any perceived influence from the donors on WHO's work; the mechanism is open to all interested donors; and is subject to the conditions in paragraph (19) above".

Alternatively, there should have been a ceiling on the specified financial and in-kind resources from the private sector in the absence of pool funding.

The draft private sector policy also does not bar the Secretariat from accepting resources from the private sector for the salary of WHO staff. Paragraph 37 states: "Funds designated to support the salary of specific staff or posts (including short-term consultants) may not be accepted from private sector entities if they could give rise to a real or perceived conflict of interest in relation to WHO's work".

Paragraph 38 states: "The acceptability of contributions from private sector entities to projects that have a staffing element should be reviewed in the light of other relevant guidance provided in this document".

Further, the draft policy does not increase the level of transparency with regard to NSAs. It reiterates the existing practice of disclosing through financial reports and audited financial statements. These reports do not disclose the details of donations. The draft policy is silent regarding the disclosure of details of donations from NSAs especially the purpose of their use and the agreement between WHO and the private sector donors.

Another major concern is related to the secondment of personnel to WHO. Under this scheme, the salary of the person would be paid by the agency, which deploys the person to WHO. The policy clearly states that secondment is possible from NGOs and private sector. Even though the secondment opportunities are open to NGOs, the most frequent user would be the private sector considering the financial resources available with the private sector. The NSAs are likely to use the secondment of personnel to leverage the commercial interest. Further, the secondment person may compromise the neutrality of the international civil service.

The draft policy also rejects the demand of many public interest groups to be allowed to participate in WHO governing body meetings as observers. However, the draft policy restricts the participation to NGOs which are only in official relations with the WHO. Further, there is no clarity whether NGOs would be differentiated from the business associations for the participation in WHO governing body meetings. Currently, all non-State actors who are in official relations with WHO including business associations like the International Federation of Pharmaceutical Manufacturers & Associations participate in the meetings as NGOs.

Even through the draft policy refers to philanthropic organisations, it ignores the original decision to have a separate policy for not-for-profit philanthropic organisations.

The Chair's summary of the 130th Session of the WHO Executive Board clearly states that: "Further discussion will be required on WHO's engagement with other stakeholders, including different categories of non-governmental organisations and industry, and the proposals to review and update principles governing WHO relations with non-governmental organisations, and to develop comprehensive policy frameworks to guide interaction with the private-for-profit sector, as well as not-for-profit philanthropic organisations".

According to IBFAN: "If these new policy proposals are adopted, IBFAN fears that WHO will be unable to lead and support Member States in taking the bold decisions necessary to tackle global health challenges."

There is concern therefore that the draft framework and policies could legitimize the status quo and further the corporate capture of WHO