TWN Info Service on Health Issues (May16/06)
26 May 2016
Third World Network

WHO: Do not approve a faulty FENSA at WHA, urge CSOs
Published in  SUNS #8248 dated 26 May 2016

Geneva, 25 May (Kanaga Raja) -- Some sixty civil society organisations (CSOs) have voiced concern that the negotiations on the Framework of Engagement with Non-State Actors (FENSA) during the World Health Assembly (WHA) may be used by certain Member States to further dilute the existing policies regulating engagements with the private sector and weaken the stronger provisions that have been negotiated so far.

In a joint statement issued during the current sixty-ninth WHA taking place from 23-28 May, the CSOs believe that the independence, integrity and credibility of the World Health Organisation (WHO) are non-negotiable for the fulfilment of its constitutional functions.

They said that the existing safeguards - to protect WHO from undue influence and to avoid or properly resolve conflicts of interest - are not sufficient and have been inconsistently enforced.

They further said they stand ready to support the development of a robust and effective framework to regulate relationships with non-state actors (NSAs), and the on-going negotiations on FENSA could be an opportunity to adopt such a framework.

Among the signatories to the joint statement are the All India Drug Action Network; The Berne Declaration (Switzerland); Corporate Accountability International (US); IBFAN (Global); INFACT Canada; Health Action International (Global); Medico International (Germany); People's Health Movement; Public Services International; Research Foundation for Science, Technology & Ecology (India); Society for International Development (SID); Third World Network; Transnational Institute (Global); Treatment Action Campaign (South Africa); and World Obesity Federation (Global).

"Many proposals by rich [developed] countries in the draft FENSA text and in the resolution to adopt it are increasing risks of corporate capture of WHO under the guise of promoting engagements. The real intent, however, is avoiding the creation of a comprehensive mechanism to adequately deal with conflicts of interest. These proposals, if accepted, would institutionalise the undue corporate influence on WHO. We are particularly concerned about the new Official Relations policy," said Lida Lhotska of the International Baby Food Action Network (IBFAN) in a press release.

"What lies at the heart of the discussions around FENSA are concerns that the private sector has progressively increased its influence over important functions of the WHO including its norm-setting role. This in turn is being driven by WHO's financial crisis and the impasse as a consequence of the freeze on assessed contributions. In a situation where 80% of contributions to WHO's finances is tied funding, the WHO is being pushed to accommodate the interests of non-state actors, including big business and influential private foundations," said Dr Amit Sengupta of the People's Health Movement.

"The FENSA should strengthen rather than weaken existing safeguards against undue influence. This week's negotiation, which is expected to conclude FENSA, should not legitimize the path for undue influence", said K. M. Gopakumar with Third World Network (TWN).

In a press briefing on Tuesday, Dr Amit Sengupta of the People's Health Movement said that the discussions that are now taking place at the WHO are not an isolated kind of conversation. Underlying it is a process that is about two or three decades old. It is a process that has to do with the entire system of global governance that we are starting to see shift in various ways as well as the deep malaise that the entire UN system faces today, of which the WHO is a part.

He pointed to the shift from an earlier system where essentially nation states or countries were driving global governance processes. It was not a perfect system to start with where there was huge power imbalances between countries, but it was still driven by countries which had some legitimation in terms of their being involved in global governance.

But over the last two to three decades, "we have seen the emergence in the arena of global governance of powerful private actors", both in the form of corporations but also what are largely now called ‘philanthro-capitalist' organisations or foundations, as well as partnerships that involve the private sector and foundations.

"So what we are seeing now is global governance being driven not by countries largely", but by these range of actors mentioned above, and this reflects in the WHO in the form, for example, of the financial crisis in the organisation, where 20 percent of its finances actually come from assessed contributions of member states and 80 percent is tied contributions from a range of people.

"And that really lies at the heart of what is being discussed at the moment in FENSA, because if you have a shift today of global governance, and global governance for health, where the private sector and foundations and partnerships are major actors, then there is a demand that is coming through that they need a seat on the high table," he said.

So the discussions around FENSA are also about this ambition of the private sector and of private actors and foundations of securing themselves a seat on the high table of decision-making and that's what to an extent is being promoted by some of the rich countries as well.

Dr Sengupta also pointed to the introduction of the concept of multistakeholder partnerships, saying that multi-stakeholderization of global governance "is really papering over huge power imbalances between the various so-called stakeholders" - between ordinary people and the power of corporations and foundations.

At the end of the day, the main sticking point is about the demand that the private sector be seen at the same level as, for example, public interest organisations, NGOs etc, he added.

Ms Lhotska of IBFAN asked if FENSA is actually being pushed on everyone through the idea of an ideal consensus, are we now faced with FENSA as a consensus that will be made on the backs of the people?

Referring to the over-arching section of the FENSA document, where one of the guiding principles is ‘inclusiveness', she said that this is a dangerous over-arching principle, in that it fails to acknowledge the different nature and therefore also the different roles that public and private sector actors should play in the global health arena.

K. M. Gopakumar of TWN noted that the FENSA process has been going on for almost one year, with many rounds of negotiations taking place. Member states reached consensus on most parts of the text and what is remaining is the ‘elephant in the room' - the regulation of the private sector or regulating WHO's engagement with the private sector.

What has been heard from the first sitting of the FENSA drafting group is that there is an impasse on a particular provision of the agreement, where no consensus has been reached and this provision has been opened up for negotiations - the provision being paragraph 13 of private sector policy.

He said that the negotiations on FENSA resulted in some improvements compared to the existing norms and practices. For example, it clearly improved the level of transparency in the engagements.

"If it is implemented, it is definitely going to improve the transparency, especially the official relations," he said, adding that one of the conditions for entering into official relations is a collaborative work programme with the NGOs or non-state actors and the WHO Secretariat.

Two years ago, these work plans were not even available for the scrutiny of member states. At least now, there is a clear provision in the FENSA text that this should be made available in the public domain, he said.

He pointed out that the negotiations are at a very crucial stage now and are looking at issues on which consensus could not be reached in the last one year.

One important issue is paragraph 13(a) of the private sector policy, which prohibits WHO from accepting any resources, either financial or in-kind, for norm-setting activities. It is important that the WHO not accept financial or in-kind resources for any kind of norm-setting activities which includes even policy-making, he said.

He also highlighted that existing negotiations in a way puts certain regulations for accepting financial resources to fund the salary of WHO staff. This has been completely taken out of the FENSA text. This would allow the private sector to provide financial resources to fund the salary of the person.

Lastly, he referred to the mention of conflict of interest in the FENSA text, but you don't find how the Secretariat is going to assess the conflict of interest that is declared. And if it is assessed, what is it going to do about it? No reference to that can be found, said Gopakumar.

According to the CSO press release, the FENSA negotiation started in April 2015 and has resulted in some progress, such as for proactive disclosure of financial contributions and the prohibition of secondments from the private sector.

However, there is no consensus on some critical issues, it said, noting in particular that Member States are yet to reach a consensus on the prohibition of private sector resources for WHO's core functions: norms, standard and policy-setting.

Similarly, the current FENSA text removed an existing regulation against accepting financial resources for funding the salary of WHO staff.

The joint CSO statement noted that compared to existing measures, the current draft FENSA does bring certain improvements, for example, proactive disclosure of financial contributions and the prohibition of secondments from the private sector.

The CSOs however highlighted a number of major concerns that they said have been left unaddressed.

FENSA, in its overarching section puts private sector entities on an equal footing with other NSAs, failing to recognize their fundamentally different nature and roles. It uses the principle of ‘inclusiveness' for all five ‘types of interactions' (resources, participation, evidence, advocacy and technical collaboration) to all NSAs.

The CSOs said when applied to major transnational corporations, their business associations and philanthropic foundations, this categorization of interactions, combined with an alleged right to inclusiveness, will once and for all, legitimize the framing of public health problems and solutions in favour of the interests and agendas of those actors.

FENSA, for example, proposes technical collaboration with the private sector, including capacity building, with no adequate safeguards. It seems that there is opposition from developed countries to a clause that would exclude private sector resources for activities such as norms and policies development and standard setting.

FENSA removes the existing minimum restrictions on accepting financial resources from the private sector to fund salaries of WHO staff.

"If the WHO relies on funds from the private sector for any operational expenses, it risks showing favouritism toward those sectors in its standard-setting, expert-advisory, and other public health functions."

The CSOs said that FENSA's proposal to expressly allow business interest groups to obtain "Official Relations" status under the label of Non-State Actors will, once and for all, legitimize lobbying by business associations and philanthropic foundations at WHO governing bodies.

"This will normalise the inclusion of business agendas into public health decision-making. This seems in direct contradiction with FENSA's stated principles that any engagement must ‘protect WHO from any undue influence, in particular on processes in setting and applying polices, norms and standards'; and ‘not compromise WHO's integrity, independence, credibility and reputation.'"

The CSOs further argued that Member States have so far failed to rectify FENSA's flawed definitions and conceptualization of conflicts of interest. Thus, FENSA ignores the prime purpose of institutional conflict of interest policies, that is to ensure that "an institution's own financial interest" and those of its senior officials do not "pose risks to the integrity of the institution's primary interests and missions."

The CSOs said: "FENSA blurs the distinction between a conflict of interest which is within an actor or institution, with ‘conflicting or diverging interests' between actors. The issue of conflicting interests is, of course, important. But it has to be dealt with through robust risk assessment measures and political debate. Had the correct conceptualization of conflicts of interest been applied throughout the entire FENSA process the document would have taken a different form".

"We fear that FENSA's poor conceptualization of conflicts of interest will be transferred to and felt at national level and that it will be used to redefine national rules, undermining any chance of effective safeguards," they added.

The CSOs pointed out that some Member States that resist the development of strict conflict of interest rules for WHO have developed relatively strict conflict of interest policies, e. g. to prevent industry from unduly influencing regulators and elected officials in their own jurisdictions.

For example, OECD Member States who have committed to follow the OECD Guidelines for Managing Conflict of Interest in the Public Service at the domestic level, are now obstructing the development of a WHO comprehensive conflict of interest policy.

Similarly, the UK National Institute for Health and Care Excellence (NICE) prohibits involvement of any experts from the private sector, yet the UK delegation resists inclusion of such a provision in FENSA.

Canada's Federal Government prohibits financial contributions by corporations to political parties and limits the amount of contributions by individuals.

"Member States must shed such double standards," said the CSOs.

The CSO statement noted that, referring to the 2030 Agenda for Sustainable Development, at the last minute some Member States inserted into the draft Resolution and the FENSA document, references to "multi- stakeholder partnerships".

"Yet the entire FENSA fails to address how WHO should appropriately approach public-private hybrid entities, that undoubtedly create avenues for undue influence on policy-making. The OECD Guidelines have highlighted public-private partnerships, sponsorships and lobbying as particular ‘at risk areas' for conflicts of interest."

In their joint statement, the CSOs called on Member States to:

  • Not approve a faulty FENSA at WHA: this process will define the role of our highest global authority in public health for years to come and needs to be done correctly.
  • Evaluate the process, re-open transparent debate, clarify concepts, obtain missing evidence, including from WHO civil servants and public interest advocates, and do an in-depth review of the adequacy of existing relevant WHO policies. WHO must emerge from this process as an agency able to fulfill its mandate.
  • Stop developing FENSA under contradictory objectives: both as an instrument to attract voluntary financial resources for WHO and, at the same time, as a safeguard to protect its mandate. It can't be done. If WHO is to fulfill its constitutional mandate, Member States must find other financial solutions: lift the freeze on assessed contributions and increase their levels of funding. This would end WHO's dependency on voluntary, often earmarked and volatile contributions. It would resolve the most important - financial - institutional conflict of interest of WHO and at the same time prevent wasting resources on implementing an ill-conceived FENSA.
  • Strengthen rather than weaken the safeguards against undue influence from the private sector: at the very least, FENSA should not dilute the existing WHO safeguards contained in policies regulating WHO's relations with NGOs and the private sector. FENSA should acknowledge the especially high risks posed by inappropriate interaction with food, beverage, baby food, alcohol, pharmaceutical, medical technology, and tobacco industries in all WHO work.
  • Strengthen these safeguards by developing a comprehensive and effective conflict of interest policy: if conflicts of interest had been effectively addressed, some of the recent public health emergencies would have been dealt with more efficiently, moreover also saving public resources.
  • Fully protect WHO from the undue influence of venture philanthropy and corporate funding: WHO should be fully funded by Member States. In addition, FENSA should set out clear rules regarding acceptance of cash or in-kind contributions from these NSAs, recognizing that such forms of funding to WHO risk unduly affecting WHO's integrity, independence and effectiveness in fulfilling its mandate.
  • Protect the integrity of Official Relations: ensure that the Official Relations policy is adequately discussed after this WHA so that it becomes a safeguard against undue influence, not a wide open lobby channel to influence the work of WHO governing bodies. +