1

Individual Responsibility for Promoting Global Health Impact: The Case for a New Kind of Socially Conscious Consumption

There can be no excuse for allowing either the idea or reality of private property to interfere with the business of saving one’s fellow man. If compensation for the taking of medical and pharmaceutical patents need be paid, so be it. But we can only hope that along with the great mass murderers of the 20th Century – the Stalins and the Hitlers – there is a special place in hell reserved for those who stood by and refused to act while those around them died. - Boldrin & Levine: Against Intellectual Monopoly, Chapter 9, p. 16.

1. Introduction

The problems of global health are truly terrible. Millions suffer and die from diseases like

tuberculosis, HIV/AIDS, and malaria.i One way of addressing these problems is to use something like the

Global Health Impact rating system for pharmaceutical companies’ key impacts on global health to

incentivize positive change (global-health-impact.org).ii This rating system might, for instance, support a

Global Health Impact certification and labeling campaign. The best companies, in a given year, will be

given a license to use a Global Health Impact label on all of their products – everything from lip balm to

food supplements. Highly rated companies will have an incentive to use the label to garner a larger share

of the market. Since Pfizer, for example, is a highly rated company, it might be given a Global Health

Impact label to use on Advil. If even a small percentage of consumers promote global health by

purchasing Global Health Impact products, the incentive to use this label will be substantial. iii If

consumption of Global Health Impact goods reaches one percent of the market in generic and over the-

counter medications, that will create about US $360 million-worth of incentive for pharmaceutical

companies to become Global Health Impact certified.iv If Global Health Impact labeling is successful, it

will give companies a reason to produce drugs that will save millions of lives.

The Global Health Impact rating system ranks companies based on their key (malaria, TB, and

HIV/AIDS) medicines’ impacts on global health. It considers the need for these medicines – in terms of

the disability-adjusted life years (DALYS) lost to the diseases they treat – their efficacy, and the

proportion of people who need the drugs who can access them. Suppose that 100 DALYS were lost to a

disease in some area and 50% of people can access a drug for that disease. At best, the drug can save 50

2

DALYS. If the drug were only 80% effective, however, the rating system would estimate that it saved 40

DALYS in that area. Companies’ scores are just the sum of their drugs’ global scores. So if one company

has two drugs that save 40 and 60 million DALYS, respectively, and another company has one drug that

saves 90 million DALYS, the first company would be ranked higher than the second.

If highly rated companies are given a Global Health Impact label to use on all of their products,

will consumers have any moral obligation to purchase goods from Global Health Impact certified

companies or is doing so even morally permissible? There is a straightforward argument from

beneficence for purchasing goods from Global Health Impact certified companies. If the rating system is

a good one, and people purchase these goods, they will incentivize greater access to essential medicines (I

3

will simply assume it is a good rating system for the purposes of this paper but, for support, see author a,

b, c, and d).

Partly because not everyone will accept the argument from beneficence, this paper provides a

new rights-based argument for purchasing goods from Global Health Impact certified companies.

Because the proposal is something only developed country consumers can reasonably be expected to

support, this paper will focus only on these consumers in what follows. It will leave this qualification

implicit where its importance is minor. It defends the Argument for Obligation on which it is because 1)

pharmaceutical companies violate rights and 2) fail to live up to their obligations that 3) if the proposal is

effective, people should generally purchase goods from Global Health Impact certified companies. On the

assumptions that the proposal will be effective (for defense, see: author, with-held a-d) and people have a

right to access essential medicines, subsequent sections defend each premises in turn.

II. The First Premise of the Argument for Obligation

Many pharmaceutical companies extend intellectual property rights on essential medicines around

the world.v They do this, in part, through the World Trade Organization’s (WTO’s) Trade Related

Intellectual Property Rights (TRIPS) agreement.vi TRIPS requires all countries to recognize others

countries’ patents, but pharmaceutical companies lobbied developed country governments to support a

very restrictive interpretation of the TRIPS Agreement to protect their patents.vii

Companies also try to extend intellectual property rights beyond borders in other ways. Consider,

for instance, what happened when South Africa passed its Medicines Act to encourage generic

competition for AIDS medicine: many of the big pharmaceutical companies sued. It was only after a lot

of negative media attention, and extended negotiations, that pharmaceutical companies withdrew their

lawsuit.viii South Africa did not go on to import generic AIDS medicines. At the behest of pharmaceutical

companies, the US Trade Representative has singled out other countries in its 301 Reports for not being

aggressive enough in enforcing foreign intellectual property rights. Countries, thus, face the threat of

trade sanctions.ix At the behest of pharmaceutical companies, the US also uses political and diplomatic

4

pressure and bilateral trade agreements “to undermine countries that produce generic medicines and/or

consider importing them.”x

Moreover, many pharmaceutical companies seek to extend their intellectual property rights on

essential medicines within national borders. They patent as many aspects of their inventions as possible

and secure multiple patents on the same aspects.xi They come up with slightly different drug formulations

that allow them to “evergreen” their patents indefinitely.xii They develop and patent “me-too” drugs that

do not have major therapeutic advantages over existing drugs.xiii They lobby regulatory authorities to

extend their patents and make generic competitors complete expensive re-testing of drugs to secure

licenses on chemically identical generic versions of their drugs.xiv They engage in extensive litigation over

expiring patents and seek special expedited approval “priority review” and patent extensions for essential

medicines under the Orphan Drug Act and similar provisions.xv In all of these ways, companies extend the

life of their patents on essential medicines significantly.xvi

Intellectual property rights on essential medicines allow companies to set prices for these

medicines that make it very difficult for many poor people to access them. Theoretically, in a perfectly

competitive market, companies can only charge the marginal costs of production for their products.xvii

Even in imperfectly competitive markets, competition will drive down the prices companies can

secure.xviii However, patents allow firms to secure monopoly rents. The profit maximizing price in a

monopoly setting will be higher than the marginal costs of production.xix Since about half of the world’s

population lives on less than the equivalent of what two dollars a day buys in the US,xx and demand

curves for essential medicines are highly convex in many developing countries, economic theory predicts

that these prices will make it very difficult for many poor people to access them.xxi

To see how this works in practice, consider how extending patent protection on essential

medicines through the TRIPS agreement reduces generic competition internationally. Before the TRIPS

agreement was implemented, generic companies in developing countries could create and sell cheaper

versions of many essential medicines. Now their ability to do so is limited.xxii TRIPS requires all countries

to recognize others countries’ patents.

5

Although there are provisions in the TRIPS agreement to allow access to essential medicines,

they are not sufficient to overcome the barriers the patents TRIPS requires countries to recognize impose.

Poor countries can issue compulsory licenses for essential medicines if they cannot reach an agreement

with the company making the drug to provide it at a reasonable price. However, few poor countries have

the capacity to manufacture drugs on their own. Even if they issue compulsory licenses under TRIPS, it is

hard for these countries to access essential generic drugs.xxiii The Doha Declaration says that for countries

with manufacturing capacity like Brazil, India, and Thailand to export essential drugs and technologies,

they also have to issue compulsory licenses. Moreover, such licenses are restricted to emergency

situations.xxiv So, few countries have issued these licenses.xxv Compulsory licensing a few years after the

Doha Declaration declined significantly.xxvi Many essential medicines under patents TRIPS requires all

countries to recognize are prohibitively expensive.xxvii

Finally, when companies extend intellectual property rights around the world that allow them to

set prices that make it very difficult for many poor people to access essential medicines, they violate

rights.xxviii Assuming people have a right to access essential medicines, this claim is incredibly plausible.

Still, it is worth considering a few objections.

First, note that rights violations are not like harms – for rights to be violated, it need not be the

case that people are made, in any respect, worse off. Consider that someone who beats another person

violates the person’s rights, even if the person would have been beaten by another person had the actual

beating not been administered. One should not argue that, to violate rights, companies have to make

people worse off than they would otherwise be by, for instance, preventing people who would otherwise

be able to access essential medicines from accessing them.xxix It must only be the case that companies

extend intellectual property rights on essential medicines and set prices that make it difficult for many

poor people to access these medicines.

Some will likely insist, however, that companies do not violate rights because they do not make

people worse off than they would otherwise be. xxx Some of these people may argue that companies help

people access essential medicines who could not otherwise do so because they do the kind of research and

6

development necessary to address many pressing global health problems. Some will maintain that patents

spur research and development that, eventually, (when prices fall) enables even the poorest to access

essential medicines. Others will point out that removing patents will decrease the incentive for companies

to develop these medicines. Moreover, some will argue that companies would not be able to make all of

the drugs that they make now with less extensive intellectual property rights. xxxi What follows challenges

each of these claims in turn.

First, note that patents on essential medicines may not make poor people better off than they

would otherwise be; they do not spur the kind of research and development necessary to address many

pressing global health problems. Patents stimulate research and development that makes some people

better off. Nevertheless, historical evidence suggests that patents may not be a particularly effective way

of promoting new research and development. Few European countries had product patents until relatively

recently.xxxii Moreover, several key innovator countries had relatively weak patent protection.xxxiii

Moreover, patents result in a lot of dead-weight loss due to litigation.xxxiv

Patents, in general, do not really spur the kind of research and development necessary to address

many pressing global health problems.xxxv Traditional patents give pharmaceutical companies an incentive

to create products that treat, but do not cure, chronic diseases of rich patients.xxxvi They can continue to

sell such products to rich patients indefinitely.xxxvii Companies have little incentive to address the diseases

of the global poor. Poor people cannot pay much for essential medicines. Even with patents on essential

medicines, few are developed by companies aiming to capitalize on the incentive the patents create. Of

the 1,393 medicines developed between 1975-1999, only 13 were for tropical diseases and, of these, two

came from military research and five from veterinary research.xxxviii

Even in the long term, patents often fail to reduce the prices for essential medicines enough to

make them accessible to the global poor. Even when pharmaceutical companies do create essential

medicines, rising resistance rates to many medicines make them obsolete before prices fall enough to

make them accessible.xxxix

7

Without patents there might be less incentive for companies to develop essential medicines as

companies do make some money from selling these drugs, but whether this is so depends on what other

mechanisms are put in place for stimulating innovation. There are, plausibly, better ways of stimulating

research and development of essential medicines. One option -- defended at length by Jamie Love, Tim

Hubbard, Aiden Hollis, and Thomas Pogge -- is an open access patent scheme like the Health Impact

Fund (HIF).xl The idea behind the HIF is to offer a second, voluntary, patent that rewards companies on

the basis of their drugs’ impacts on global health.xli Alternately, one can imagine state-funded

pharmaceutical research and development with open access to resulting medicines and technology.

Even if companies are not able to make all of the drugs that they make now with less extensive

intellectual property rights, poor people who need essential medicines might fare better. Companies might

not be able to do the research and development necessary to create as many new medicines, or sustain

current production levels (given the costs of labor), if they could not secure such high prices.

Nevertheless, other companies could create generic versions of many medicines more easily. Moreover,

as we have seen, there are alternative ways of stimulating the necessary research and development, and

patents may not be a particularly effective means of securing essential medicines.

Even though companies are not responsible for the existence of severe poverty and the fact that,

collectively, we are failing to ameliorate it, they are partly responsible for the fact that so many lack

access to essential medicines. They are seeking to extend intellectual property rights around the world and

setting prices that make it difficult for many people to access them.xlii Extending patents may not violate

rights if we had a different way of stimulating research on, and development of, essential medicines or if

everyone did what is necessary to eliminate poverty. Still, companies are responsible for the actual

(foreseeable) consequences of their actions in the real world, not in some counter-factual, or possible,

world. As long as there are no competing moral obligations at issue, it is not acceptable to seek

intellectual property rights and set prices that make it difficult for many poor people to access essential

medicines. This is so even if companies are not responsible for all of the conditions that lead to this rights

violation. They may be obligated to do much more to support alternative patent schemas like the Health

8

Impact Fund, or generic drug development in poor countries, rather than persistently objecting to such

measures.

To accept the preceding argument, one only needs to maintain that companies’ actions violate

rights because they (foreseeably) make it very difficult for many poor people to access essential

medicines when there are no competing moral obligations weighty enough to justify this at stake.xliii On

the standard view of obligations correlative to human rights, about which I will say more below, every

agent has an obligation to refrain from violating rights. One does not have to hold that people have a

human right to the highest attainable standard of health to accept the idea that extending intellectual

property rights on essential medicines and setting prices that make it very difficult for many poor people

to access them violates rights. Nor need one agree that companies extending property rights on essential

medicines and setting high prices must ensure that as many people as possible have access to as many

essential medicines as possible.

On cannot object that, all told, companies do not violate rights because, they not only try to

extend intellectual property rights and set high prices, they help people access essential medicines. It is

true that pharmaceutical companies do some research on, and development of, essential medicines. They

also extend access to these medicines by selling and donating these drugs. In defending the Argument for

Obligation’s second premise, however, the next section will suggest that companies are not doing enough

in this respect to fulfill their positive obligations to help people secure these medicines. Moreover, even if

one thinks companies lack any positive obligations to help people secure essential medicines,

pharmaceutical companies are violating negative rights in seeking to extend patent protection and setting

prices that make it very difficult for poor people to access these medicines.xliv One cannot normally justify

breaking someone’s arm by doing something else that saves that (or another) person’s life if one could

just save the life. Similarly, companies cannot normally justify seeking property rights and setting prices

that make it very difficult for many poor people to access essential medicines by creating and selling such

medicines to these (or, more likely, other) people. These companies may have to sell these drugs at the

9

much more reasonable prices free markets would afford or even give them away much more frequently

than they do.

One should not assert that companies do not violate their obligations in seeking to extend

intellectual property rights and setting prices that make it very difficult for many poor people to access

essential medicines because they could not otherwise do as much to fulfill their positive rights

obligations. As we have seen, this proposition is doubtful. In any case, those who want to argue that

companies face a terrible dilemma -- between trying to extend intellectual property rights and setting

prices that make it difficult for many people to access essential medicines and failing to fulfill positive

obligations -- must substantiate this claim.

Of course, not everyone will endorse the assumption that people have a positive right to access

essential medicines, but I defend it at length elsewhere, and it is imminently plausible.xlv Essential

medicines are essential precisely because they are necessary for life and health, and people have rights to

adequate protection of their ability to live reasonably healthy lives.xlvi

III. The Second Premise of the Argument for Obligation

This sub-section defends the claim that pharmaceutical companies have not done enough to

address the access to medicines issue in light of their causal contribution to the problem, the fact that they

benefit from the access to medicines problem (and its causal determinants), their abilities, and the failure

of other potential duty bearers to do so. More precisely, the rest of this section defends the following

argument for the second premise of the Argument for Obligation:xlvii

a) If one of the main accounts of responsibility in the literature is correct, when other potential duty

bearers fail to address a problem, any agent that I. is particularly well-placed to do so, II. has

(causally) contributed to the problem, or III. has benefitted from it (or its causal determinants), is

responsible for helping to address it.xlviii

b) Other potential duty bearers have failed to address the access to essential medicines problem.

c) Pharmaceutical companies have (causally) contributed to this problem.

d) Pharmaceutical companies have benefitted from this problem (and its causal determinants).

10

e) Pharmaceutical companies are particularly well-placed to address this problem.

If one of the main accounts of responsibility in the literature is correct, it follows that pharmaceutical

companies are responsible for helping to address the access to medicines problem. The constraint that

they must merely “help” is only included to recognize the limits of possibility and other competing

obligations. It is a short step from the conclusion that pharmaceutical companies are responsible for

helping to address the access to medicines problem to the claim that pharmaceutical companies are failing

to live up to their obligations. This is quite plausible. It is not reasonable to hold that companies have

been doing all they can, or should, do -- consistent with fulfilling their (other?) moral obligations -- to

address this problem in light of its size and companies’ ability to ameliorate it.xlix

It is possible to defend the preceding argument this way. I take a) as read. l In a world where

millions die every year from lack of access to essential drugs, b) is obvious. This paper has already

defended c) in arguing that pharmaceutical companies have sought to extend intellectual property rights

that allow them to set prices for essential medicines that make it very difficult for many poor people to

access them. So it only remains to defend d) and e).

First, consider d) the claim that pharmaceutical companies have benefitted from the access to

medicines problem (and its causal determinants) li as it is relatively uncontroversial. Pharmaceutical

companies benefit from the fact that people need essential medicines; this is the market for many of their

products. Were there less demand for these products then, on standard economic models, prices would

fall. So companies would make less profit. Pharmaceutical companies also benefit from patents on

essential medicines -- one of the causal determinants of the access to medicines problem. Companies can

charge much more than the marginal cost of production for products under patent even when it is not

clear that this ameliorates the access to medicines problem. lii Even some of those most critical of patents’

benefits to companies grant that patents bring large benefits to companies in this sector. liii

Before defending e), the claim that pharmaceutical companies are particularly well-placed to

address the access to medicines problem, let me explain why I find the conception of responsibility it

embodies particularly compelling. (Though I believe each of the factors for attributing responsibility set

11

out above, plausibly, has a role to play in a just attribution of responsibility.) This paper assumes, and I

believe, that people have a human right to essential medicines. liv On the standard account of the

obligations correlative to human rights, responsibilities for fulfilling these rights fall primarily on states. lv

Other agents, e.g. companies and other states, have secondary duties to assist when states fail in these

obligations.lvi Every agent is responsible for refraining from violating human rights. lvii So, the standard

account might support the idea that, since other potential duty bearers have failed to address the access to

medicines problem, pharmaceutical companies are responsible for helping to address it. lviii They are

particularly well-placed to do so.

The standard account of the obligations correlative to human rights might be buttressed by

philosophical reflection. In principle, positive rights may be like negative rights so that the obligations

correlative to positive rights are universal in the first instance. lix That is, all agents may bear some

responsibility for fulfilling these rights. Alternately, we may have a collective obligation to fulfill positive

rights. In either case, the practical division of responsibility might, plausibly, be governed by

considerations of efficiency in the absence of (other?) pertinent moral considerations. lx That is, it may

often be reasonable to consider whether agents are well-placed to carry out the obligations correlative to

positive rights in assigning responsibility for fulfilling these obligations as long as the resulting

distribution of responsibility is not morally objectionable etc. This is particularly plausible in institutional

contexts where we are considering the distribution of fundamental rights and responsibilities. lxi This is so

even if the costs of fulfilling the obligations correlative to human rights have to be shared more broadly.

The reason why pharmaceutical companies are particularly well-placed to address the access

problem is this: They are particularly well-placed to do new research and development on essential

medicines and make them more accessible.lxii Pharmaceutical companies do most of the research and

development on new drugs and usually control access to the resulting technology. They have the research

and development infrastructure, and supply chains, in place to help people access these medicines. lxiii

Moreover, the monopoly protection their inventions receive (via patents) gives companies wide leeway to

set the terms of trade for their technologies. It is, arguably, part of their social charter that they address the

12

access to essential medicines issue partly because the property rights society grants them make them well-

placed to do so.lxiv

If the preceding arguments go through, pharmaceutical companies are responsible for helping to

address the access problem, but it is important to note several qualifications implicit in this conclusion’s

defense. First, this conclusion is conditional on one of the main accounts of responsibility in the literature

being defensible. Second, it holds only on the assumption that people have positive rights to access

essential medicines. Third, this conclusion is responsive to facts about our very non-ideal world. It might

be better if pharmaceutical companies were not so well-placed and did not contribute to, or benefit from,

the access problem. Unfortunately, our world is far from perfect. Other agents, including well-off states,

are also responsible for fulfilling positive rights on all of the above criteria, and states may bear the

primary obligation to fulfill positive rights. Nevertheless, because our world is so far from perfect,

pharmaceutical companies, at least, have back-up duties to fill the governance gap. Moreover, this is so

even if the rest of us have to compensate companies for their efforts. Keeping the preceding qualifications

in mind, it is possible to avoid some final objections to the conclusion that pharmaceutical companies are

responsible for helping to address the access to essential medicines problem.

Saying pharmaceutical companies, in particular, have to help fulfill individuals’ positive rights to

health does not amount to duty dumping.lxv Pharmaceutical companies, as opposed to other agents, are

particularly well-placed to address many global health problems. They may even be the only ones who

can reasonably be expected to address these problems.

Moreover, the fact that individual pharmaceutical companies bear slightly different degrees of

responsibility for their collective failure to do enough to address the access to medicines issue does not

undercut the conclusion that they should address the issue. It is unlikely that any but the highest ranked

companies on the Global Health Impact index are doing their fair share to address the access to medicines

problem in light of the size of the problem, the large mismatch between need and research and

development funding, and the average major pharmaceutical company’s meager contribution to

addressing the problem.lxvi At least it is clear that together they have not done enough in light of their

13

causal contribution to the problem, the fact that they benefit from the problem (and its causal

determinants), their abilities, and the failure of other potential duty bearers to fulfill these rights.

IV. The Fourth Premise of the Argument for Obligation

The fourth premise of the Argument for Obligation follows quickly from the more general idea

that people should usually consume in ways that encourage companies to stop violating -- and start living

up to -- their obligations.

It is plausible that consumption decisions that merely respect just institution’s rules would be

acceptable. According to the institutionalist thesis, individuals should generally be free to act within just

institutional rules. The idea is that good institutions should provide a framework of rules within which

people should be free to make choices about, for instance, what to consume. lxvii Individuals’ states (and

perhaps international institutions) should probably prohibit, or discourage, consumption that violates, or

makes it more difficult to fulfill, important moral requirements, but people should generally be free to

consume as they like within these constraints. The institutionalist thesis is plausible.

Still, in our non-ideal world, consumers have to show some restraint in making decisions about

what to purchase in the market. Given that many states do not prohibit morally impermissible

consumption decisions, consumers should refrain from making them. They should not discriminate by,

for instance, refusing to buy from minority ethnic or racial groups. Similarly, if states effectively

prohibited companies from violating rights and required them to fulfill their obligations, consumers might

not have to take action. In our world, people should encourage companies to stop violating -- and start

living up to -- their obligations. At least this is the case when consumers can do so at relatively low cost

and there are no competing moral considerations at stake weighty enough to over-ride this obligation.

Moreover, consumers are generally obligated to purchase goods from Global Health Impact

certified companies for this reason: By doing so, people I. compensate for their role in sustaining, and II.

avoid (further) supporting, pharmaceutical companies that violate rights and fail to live up to their

obligations (henceforth: companies that are failing morally).

14

Most developed-country consumers are supporting pharmaceutical companies that are failing

morally because they purchase things from these companies. Sometimes it is not reasonable to refrain

from doing so because people will bear morally significant costs or there are no better options.lxviii But,

even though many companies make essential medical products, these products usually have competitors.

(Even many patented products have reasonable competitors.)lxix Companies also make many inessential

products – like lip balm and food supplements. So, at least when there is a reasonable alternative, and

refraining from doing so does not require sacrificing very much, consumers should not purchase goods

from companies that are failing morally.lxx

The idea that consumers should stop supporting, and compensate for having supported,

companies that are failing morally is especially compelling given that what consumers do can make a

difference for how companies fare. Consumers' impact is not negligible. Any single individual’s

purchases have a small impact on companies, but collectively we enable companies to do what they do.

Pharmaceutical companies simply could not survive if people stopped buying their products. So one

might, plausibly, hold that consumers are collectively responsible for the negative impact of their

(collective) consumption. The collective conception of responsibility is especially compelling given this

fact: Even though individuals cannot affect change alone simply by refraining from consuming the things

pharmaceutical companies make, consumers can make a difference collectively by, for instance,

purchasing goods from Global Health Impact certified companies. Still, it is reasonable to distribute

responsibility for changing these practices to each of us individually.lxxi

One might grant that we have a prima facie collective obligation to purchase things with Global

Health Impact labels but maintain that, in the absence of the coercive mechanisms necessary to secure

compliance with these obligations, there are no corresponding individual obligations. People face a

tragedy of the commons when they consider whether or not to purchase Global Health Impact certified

goods: When people purchase these goods, their impact is negligible; whether or not they purchase things

with Global Health Impact labels will make no difference whatsoever to whether or not anyone can

access essential medicines. So individuals will do best to allow others to fulfill the obligation, even if they

15

care that prima facie collective obligations are fulfilled. Even if it is fair to assume that enough people

will purchase Global Health Impact labelled goods to make a significant difference, the objector may

claim that other individuals have no rational reason to contribute in the absence of coercive enforcement

mechanisms. The objector will conclude that people cannot be obligated to do what it is irrational for

them to do.

Although I will challenge the narrow conception of rationality at issue in the preceding argument

in a moment, note first that there is good evidence that, in actual markets, individual purchases are

registered and have an effect on firms’ behavior. Many large corporations, like Walmart, have check-out

machines that automatically send a request to their factories for a replica of every item bought

(Gallaugher, 2010). I cannot stress the importance of this observation enough. Individuals’ purchases do

make a difference.lxxii Given the cost, no pharmaceutical company is going to develop a new drug because

of even a hundred dollars-worth of incentive to do so, but firms should be responsive to the exact dollar

amount they calculate their investments, or donations, will bring in extra sales.

Although people have different degrees of responsibility for, and should generally refrain from

supporting companies that are failing morally, they are still required to compensate for doing so.

Individual consumers are implicated in supporting different companies to different degrees and, so, bear

different degrees of responsibility. Some may not be aware of what they are doing and, so, not

blameworthy for supporting these companies. Nevertheless, it is usually the case that people should

compensate for supporting companies that are failing morally when they do so. Sometimes, it may even

be impossible to refrain from supporting these companies and, yet, consumers should compensate for

doing so. In other cases, people have already wrongly supported these companies.

Even when it is not the case that individual purchases have an effect on firms’ behavior, there

may be other ways of avoiding the tragedy of the commons than via coercive enforcement of the kind

states provide. I propose that we reject the background presumption that it is irrational for individuals to

help fulfill a prima facie collective obligation (and so they are not obligated to do so) when they face a

tragedy of the commons. At least, we should endorse the presumption that contributing is morally

16

required in cases where even a small number of contributors make a difference and the number that can

free ride on others’ efforts without having an impact on the outcome is small (if it exists at all).

One reason many people maintain that states should help us discharge our collective obligations

is that this gives individuals’ freedom under just states’ rules. This is, of course, only partially true

because for states to help us discharge our collective obligations, they must require individuals to do their

part to fulfill these obligations (e.g. to abide by coercively enforced taxation and redistribution policies).

Still, if states enforce solutions to collective action problems, they plausibly leave more room for

individual freedom than many alternative ways of distributing responsibility for fulfilling collective

obligations.

Consider how the rationale presented above for endorsing coercive enforcement can support my

preferred solution to the collective action problem at issue. This rationale would only require us to

recognize that individual’s moral obligations to purchase Global Health Impact certified goods are

imperfect insofar as the imperfection is compatible with our fulfilling prima facie collective obligations

fairly. So if not everyone’s contributions are required for us together to do what we have to do to extend

access on essential medicines by purchasing goods with a Global Health Impact label, we should not all

have to contribute all of the time. However, we should all get our fair share of the relief that buys. If it

would suffice to fulfill our collective obligation if everyone purchased Global Health Impact labelled

goods 80% of the time (or whatever), everyone should do so at least 80% of the time (or whatever). It

would not be fair to let some purchase Global Health Impact labelled goods 60% of the time and require

others to do so 100% of the time. At least this is the case setting aside any morally relevant differences

between individuals – e.g. the fact that some can afford to do much more to help. In fact, distributing the

obligations this way, at least initially, may even preserve more freedom (and be fairer than) having states

decide who should bear the obligations and financing the necessary enforcement mechanisms through

most states’ highly imperfect regulatory and tax systems. At least insofar as we are not psychologically

compelled to free-ride on others’ efforts in fulfilling our prima facie collective obligations, we should not

do so.

17

It is true that there are other things consumers could do to fulfill moral obligations and avoid, or

compensate for, supporting companies that are failing morally, but there is still some reason to think they

should purchase goods from Global Health Impact certified companies. It is not enough to say, for

instance, that consumers could give to charity instead. There may be a stringent obligation to do both of

these things. One may not have to purchase goods from Global Health Impact certified companies if

doing so is incompatible with giving to charity (or whatever) and a choice must be made these things.

Still, some argument is necessary to establish that such a choice must be made or there must be another

justification for not doing both of these things. The fact that consumers could be doing something else to

fulfill moral obligations and avoid, or compensate for, supporting companies that are failing morally on

its own does not provide this justification. A priori we cannot even say that there are better things

consumers could do besides purchasing goods from Global Health Impact certified companies. New

vaccines against malaria, TB, or HIV/AIDS, or better access to existing medicines, might do as much for

the poor as building schools or digging a few more wells. Even if there are other things that would be

better, in principle, there may be room for those with different interests and talents to attempt to fulfill

their obligations in different ways.

It is unfortunate that -- by purchasing goods from Global Health Impact certified companies --

rich consumers exercise control over the fates of those in developing countries but, in our non-ideal

world, this may be permissible. No matter how rich consumers exercise their bargaining power, they will

greatly influence the lives of poor people. Still, there are better and worse ways of exercising this

power.lxxiii

Individuals need not promote deliberative/public democratic change through their

consumption.lxxiv People may be able to fulfill their obligations to promote democratic change in other

ways. They might, for instance, lobby their government, engage in political activism, and so forth.

Finally, it is not clear that, in general, private consumption decisions must be based on price alone

because only such decisions will bring Pareto optimal improvements in preference satisfaction. That is,

people need not only take price into account for perfect markets to make some better off without making

18

anyone worse off.lxxv Efficiency is not always desirable – it depends on what preferences are fulfilled.

Some may have morally abhorrent preferences. Ways of distributing resources that do not fulfill these

preferences but, e.g., help people meet their basic needs, may be justified, even if some efficiency is lost.

If there is a conflict between efficiency and promoting morally desirable ends or respecting (other?) moral

requirements, it is not clear that efficiency should always take precedence.

V. Conclusion

If the Global Health Impact proposal is implemented, people should generally purchase goods

from Global Health Impact certified companies. In this way, consumers might compensate for sustaining

pharmaceutical companies that violate rights and fail to live up to their obligations. By purchasing goods

from Global Health Impact certified companies, they can also help save millions of lives.

19

References

Marcia Angell. 2004. The Truth About the Drug Companies: How They Deceive Us and What To Do About It. New York, NY: Random House.

Amir Attaran, “How Do Patents and Economic Policies Affect Access to Essential Medicines in Developing Countries?”Health Affairs. 2004, 23 (3):155-66.

Author, with-held a

Author, with-held b

Author, with-held c

Author, with-held d

Author, with-held e

Author, with-held f

David Barnard. 2002. “In the High Court of South Africa, Case No. 4138/98: The Global Politics of Access to Low-Cost AIDS Drugs in Poor Countries.” Kennedy Institute Ethics Journal. 12(2): 159-74.

R. Beall and R. Kuhn. 2012. “Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration: A Database Analysis.” PLoS Medicine 9(1): e1001154. doi:10.1371/journal.pmed.1001154

James Bessen. 2008. Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Princeton: Princeton University Press.

Michele Boldrin and David Levine. 2008. Against Intellectual Monopoly. Cambridge: Cambridge University Press.

Center for Disease Control (CDC). 2005. World TB Day, March 24th 2005. Atlanta, GA: Division of Tuberculosis Elimination, CDC. Available at: http://www.cdc.gov/nchstp/tb/WorldTBDay/2005/resources_progress_elimination.htm [Accessed 2 May 2008].

S. Chen and M. Ravallion. 2004. “How Have the World’s Poorest Fared since the Early 1980s?’ World Bank Research Observer 19: 141-169.

Jennie Choe. 2011. “Fewer Drugs, More Superbugs: Strategies to Reverse the Problem.” The Alliance for the Prudent Use of Antibiotics 30(1).

Phillip De Wet. 2014. “Motsoaledi: Big Pharma's 'Satanic' Plot is Genocide,” Guardian & Mail. 17 Jan 2014. Available at: <http://mg.co.za/article/2014-01-16-motsoaledi-big-pharmas-satanic-plot-is-genocide>.

20

Thomas Dunfee. 2006. “Do Firms with Unique Competencies for Rescuing Victims of Human Catastrophes Have Special Obligations? Corporate Responsibility and the AIDS Catastrophe in Sub-Saharan Africa.” Business Ethics Quarterly 16(2): 185-210.

Thomas Faunce and Joel Lexchin. 2007. “’Linkage’ Pharmaceutical Evergreening in Canada and Australia.” Australia & New Zealand Health Policy 4: 8.

Sean Flynn, Aidan Hollis, and Mike Palmedo, An Economic Justification for Open Access to Essential Medicine Patents in Developing Countries,” Journal of Law, Medicine & Ethics, summer 2009: 1-25.

John Gallaugher, “Data Asset in Action: Technology and the Rise of Wal-Mart,” Information Systems: A Manager's Guide To Harnessing Technology. 2010. Available at: <http://www.flatworldknowledge.com/pub/gallaugher/41219#ftn.fwk-gallaugher-fn11_042>.

Global Health Watch (GHW). 2005. Global Health Watch 2005-2006: An Alternative World Health Report. New York: Zed Books.

Paige Goodwin. 2008. “Right Idea, Wrong Result - Canada's Access to Medicines Regime.” American Journal of Law & Medicine. 34(4): 567-584.

Abigail Gosselin. 2009. Global Poverty and Individual Responsibility. Lanham: Rowman & Littlefield.

Henry Graboswki. 2002. “Patents, Innovation and Access to New Pharmaceuticals.” Journal of International Economic Law. 5(4): 849-860.

Aidan Hollis and Thomas Pogge. 2008. Making New Medicines Accessible for All: A Report of Incentives for Global Health. The Health Impact Fund. Available at: http://machif.com/wp-content/uploads/2012/11/hif_book.pdf [Accessed 1 Feb 2011].

Waheed Hussain. 2012. "Is Ethical Consumerism an Impermissible Form of Vigilantism?" Philosophy and Public Affairs 40(2): 111-43.

Nien-he Hsieh. 2006. “Voluntary Codes of Conduct For Multinational Corporations: Coordinating Duties of Rescue and Justice.” Business Ethics Quarterly 16(2): 119-35.

International Federation of Pharmaceutical Manufacturers & Associations (IFPMA). 2013. Geneva: IFPMA. Available at: http://www.ifpma.org/about-ifpma/contact-us.html.

Malgorzata Kurjanska and Mathias Risse. 2008. “Fairness in Trade II: Export Subsidies and the Fair Trade Movement.” Philosophy, Politics, and Economics 7(24): 29-56.

Ramanan Laxminarayan, Zulfiqar Bhutta, Adrian Duse, Philip Jenkins, Thomas O'Brien, Iruka N. Okeke, Ariel Pablo-Mendez, and Keith P. Klugman. 2006. “Drug Resistance.” In Disease Control Priorities in Developing Countries, edited by Dean Jamison, Joel Breman, Anthony Measham, George Alleyne, Marian Claeson, David Evans, Prabhat Jha, Anne Mills, and Philip Musgrove, 1031-1051. Washington (DC): World Bank.

Joo-Young Lee and Paul Hunt. 2012. “Human Rights Responsibility s of Pharmaceutical Companies in Relation to Access to Medicines.” Journal of Law Medicine & Ethics 40, 2: 220-233.

21

Jim McDermott. 2006. “A Morality Tale on AIDS.” Address by Congressman Jim McDermott. Available at: www.house.gov/mcdermott/sp060619.html [Accessed 20 June 2006].

Médecins Sans Frontières (MSF). 2013. “Untangling the Web of Antiretroviral Price Reductions” 16th Edition – July 2013. MSF: Geneva. Available at: http://www.msfaccess.org/sites/default/files/AIDS_Report_UTW16_ENG_2013.pdf.

Richard Miller. 2010. Globalizing Justice: the Ethics of Poverty and Power. Oxford: Oxford University Press.

Gerald Mossinghoff. 1999. “Overview of the Hatch-Waxman Act and Its Impact on the Drug Development Process.” Food and Drug Law Journal 54(2): 187-194.

Liam Murphy. 1998. “Institutions and the Demands of Justice.” Philosophy & Public Affairs 27(4): 251-91.

National Science Board. 2010. “Research and Development: National Trends and International Linkages.” Science and Engineering Indicators 2010. Arlington, VA: National Science Foundation. Available at: www.nsf.gov/statistics/seind10/ [Accessed June 2010].

James Nickel. 2005. “Poverty and Human Rights,” The Philosophical Quarterly, 55: 358–402.

James Nickel. 2008. Making Sense of Human Rights. Second Edition. New York: Wiley.

Elinor Ostrom. 1990. Governing the Commons. Cambridge: Cambridge University Press.

Office of the United States Trade Representative. 2007. Schwab Announces Results of Chile IPR Review, Cites Deteriorating Review. Washington, DC: Office of the United States Trade Representative. Available at: http://www.ustr.gov/about-us/press-office/press-releases/archives/2007/january/schwab-announces-results-chile-ipr-review.

Onora O’Neill. 2005. “The Dark Side of Human Rights.” International Affairs 81(2): 427-439.

Bernard Pecoul, Pierre Chirac, Patrice Trouiller and Jacques Pinel. “Access to Essential Drugs in Poor Countries A Lost Bottle?” The Journal of the American Medical Association 281(4): 361-367.

Thomas Pogge. 2008. World Poverty and Human Rights. Second Edition. Cambridge: Polity Press.

Andrew Pollack. 1990. “Orphan Drug Law Spurs Debate.” The New York Times Business. [30 April 1990]. Available at: http://www.nytimes.com/1990/04/30/business/orphan-drug-law-spurs-debate.html?pagewanted=all&src=pm.

Andrew Pollack. 2000. “Biotechnology Companies Try to Ward Off Generic Drugs.” The New York Times Business. [28 Dec 2000]. Available at: http://www.nytimes.com/2000/12/28/business/biotechnology-companies-try-to-ward-off-generic-drugs.html..

Debra Satz. 2003. Why Some Things Should Not Be for Sale: The Moral Limits of Markets. New York: Oxford University Press USA.

22

Stephanie Saul. 2008. “The Generic Drug Scandal.” The New York Times Business. [18 June 2008]. Available at: http://www.nytimes.com/2008/06/18/business/worldbusiness/18iht-19drug.13813132.html?_r=3&scp=4&sq=Hatch-Waxman%20Act&st=cse&.

Wendy Schacht and John Thomas. 2002. “The ‘Hatch-Waxman’ Act: Selected Patent-Related Issues.” Congressional Research Service Report for Congress. The Library of Congress. Available at: http://congressionalresearch.com/RL31379/document.php?study=The+Hatch-Waxman+Act+Selected+Patent-Related+Issues.

David Schmidtz. 2002. “The Institution of Property,” in Environmental Ethics What Really Matters, What Really Works. David Schmidtz and Elizabeth Willott eds. Oxford University Press: New York.

Nilay Shah. 2004. “Pharmaceutical Supply Chains: Key Issues and Strategies For Optimisation.” Computers and Chemical Engineering 28: 929-941.

Aakash Kaushik Shah, Johnathan Warsh, and Aaron Kesselheim. 2013. “The Ethics of Intellectual Property Rights in an Era of Globalization.” Journal of Law, Medicine, & Ethics 41 (4):841-851.

Robert Steinbrook. 2007. “Closing the Affordability Gap for Drugs in Low-Income Countries.” New England Journal of Medicine 357(20): 1996-9.

The Global Fund to Fight Aids, Tuberculosis, and Malaria. 2013. Geneva: The Global Fund to Fight Aids. Available at: http://www.theglobalfund.org/en/.

Ellen t’Hoen. 2002. “TRIPS, Pharmaceutical Patents and Access to Essential Medicines: Seattle, Doha and Beyond.” Chicago Journal of International Law, 3(1): 27-46.

P. Trouiller, E. Torreele, P. Olliaro, N. White, S. Foster, D. Wirth, and B. Pécoul. 2001. “Drugs for Neglected Diseases: A Failure of the Market and a Public Health Failure?” Tropical Medicine and International Health, 6(11): 945-51.

UNAIDS. 2004. World AIDS Day 2004: Women, Girls, HIV and AIDS. Geneva: AIDS Epidemic Update. UNAIDS. Available at: http://www.unaids.org/wad2004/report.html [Accessed 2 May 2008].

United Nations (UN) Global Compact. 2013. “Overview of the UN Global Compact.” New York, NY: United Nations.

UN Global Compact. 2013. “The Ten Principles.” New York, NY: United Nations.

UNICEF. 2005. Millennium Development Goals: Combat AIDS/HIV, Malaria, and other Diseases. Geneva: UNICEF. Available at: http://www.unicef.org/mdg/disease.html [Accessed 2 Feb 2011].

Andrew Walton. 2013. “The Common Arguments for Fair Trade” Political Studies, 61(3): 691–706, 

Leif Wenar. 2007. “Responsibility and Severe Poverty.” In Freedom from Poverty as a Human Right, edited by Thomas Pogge, 255-74. New York: United Nations Educational, Scientific and Cultural Organization.

World Health Organization (WHO). 2006. “Access to AIDS Medicines Stumbles on Trade Rules.” Bulletin of the World Health Organization. WHO: Geneva. Available at: http://www.who.int/bulletin/volumes/84/5/news10506/en/

23

World Trade Organization (WTO). 2006. “TRIPS and Public Health.” Geneva: WTO. Available at: http://www.wto.org/english/tratop_e/trips_e/pharmpatent_e.htm. [Accessed 2006].

24

i (CDC, 2005) and (UNICEF, 2005).ii (Author, with-held a).iii (Author, with-held a; Author, with-held b; Author, with-held c).iv Ibid.v I set aside for the purposes of this paper any questions about the corporate agency of companies, but see: (Author, with-held a).vi If this is not true of every company, the argument here can be modified appropriately.vii (t’Hoen, 2002).viii (Barnard, 2002). ix (Office of the United States Trade Representative, 2007; McDermott, 2006; Global Health Watch, 2005, 106).x Ibid.xi (Angell, 2004; Faunce and Lexchin, 2007; Boldrin and Levine, 2008, 241-276; Saul, 2008; Pollack, 2000; Schacht and Thomas, 2002; Mossinghoff, 1999; Pollack, 1990).xii Ibid.xiii Ibid.xiv Ibid.xv Ibid. Not all orphan drugs are for essential medicines as this paper uses the term. Moreover, this paper uses “essential medicines” to refer to medicines for which there is great need in developing countries, not necessarily those on the WHO’s essential medicines list. xvi (Angell, 2004; Faunce and Lexchin, 2007; Boldrin and Levine, 2008, 241-276; Saul, 2008; Pollack, 2000; Schacht and Thomas, 2002; Mossinghoff, 1999; Pollack, 1990).xvii (Flynn et. al., 2009).xviii Ibid.xix Ibid.xx (Chen and Ravallion, 2004).xxi (Flynn et. al., 2009). Also see: (Perloff, 2011, 343-382; Boldrin and Levine, 2002).xxii (Global Health Watch, 2005).xxiii (Barnard, 2002; Steinbrook, 2007).xxiv (t’Hoen, 2002). xxv (World Trade Organization, 2006; Goodwin, 2008). xxvi (Beall and Kuhn, 2012).xxvii Some note that the TRIPS agreement does not greatly hinder access to essential medicines as defined by the WHO (Attaran, 2004). This paper does not use this (cost-sensitive definition) of “essential medicines” and patents do restrict access to important drugs for diseases like HIV/AIDS (WHO, 2006).xxviii This does presume that agents besides states can violate rights, but the conception of rights at issue may still be institutional. See discussion below.xxix It is more plausible that, to violate rights, patents have to make people worse off than they could otherwise be. This paper will, however, set aside the question of whether or not any “ought-implies-can” clause is appropriate for constraining human rights claims.xxx See, for instance: (Graboswki, 2002).xxxi See, for instance: Ibid.xxxii (Boldrin and Levine, 2008, 241-276; Bessen, 2008).xxxiii Ibid.xxxiv (Bessen, 2008).xxxv Even in developing countries it is not clear that stronger patent protection will spur innovation. See: (Shah, Warsh, and Kesselheim, 2013, 848).xxxvi (Pogge, 2008).xxxvii Ibid.xxxviii (Trouiller et al., 2001, 11).xxxix (Laxminarayan, et. all, 2006; Choe, 2011).

xl (Hollis and Pogge, 2012, Ch. 6).xli Ibid.xlii (MSF, 2013).xliii It is obviously impossible to fully defend this claim here. Nonetheless, I believe it is unlikely that companies could argue that their obligations to share-holders -- or other stake-holders -- outweigh, or over-ride, obligations to respect the basic human rights at issue.xliv Significant argument would be necessary to show that these apparent rights violations are spurious or justified.xlv (Author, with-held a)xlvi (Nickel, 2008). The leaves the question of what constitutes adequate protection quite open – it need only preclude protections that fail to prevent widespread deprivation.xlvii Moreover, companies may sign corporate codes of conduct and have something like a duty of fair play to extend access on essential medicines to the poor given that they are granted monopoly protection of new inventions via patents(Hsieh, 2006; Global Compact, 2013). xlviii (Hollis and Pogge, 2012, Ch. 6). xlix Perhaps some of the arguments below about the obligations of individual consumers can be extended to say much more about companies’ individual obligations. . l See: (Gosselin, 2009; Pogge, 2008; Wenar, 2007).li Further philosophical work is necessary here to state this more precisely. Perhaps saying something like “at least one of its major causal determinants” will suffice if one can explain what counts as “major.”lii (Boldrin and Levine, 2008, 241-276).liii (Bessen, 2008).liv (Nickel, 2008; Author, with-held d).lv (Nickel, 2008). The idea here is not just that capacities but social role matters and this seems to drive much of the discussion of companies responsibilities with respect to access to essential medicines, in particular: (Lee and Hunt, 2012).lvi Ibid.lvii Ibid.lviii (Lee and Hunt, 2012).lix (Author, with-held a).lx (Author, with-held e).lxi The idea that, in principle, the obligations correlative to positive rights are held universally, or collectively, helps respond to Onora O’Neil’s worry that there are no in-principle obligation bearers for positive rights. In principle, everyone bears the obligations correlative to positive rights. See: (O’Neil, 2005; Author, with-held a).lxii This line of argument is suggested by Thomas Dunfee’s nice adaptation of Peter Singer’s pond argument to the case of corporations’ duties to respond to the AIDS epidemic (Dunfee, 2006). lxiii Of course, these can always be improved: see (Shah, 2004). Public entities are also sometimes well-placed to assist private industry in helping people access essential medicines: see (The Global Fund to Fight Aids, Tuberculosis and Malaria, 2013; International Federation of Pharmaceutical Manufacturers & Associations, 2013).lxiv (Lee and Hunt, 2012).lxv Companies may just have an obligation to do their part in addressing the access issue. Individuals, and other agents, well-placed to assist etc. must also do so.lxvi The average company making a contribution is alleviating <2% of the burden of these diseases. A rough rule of thumb for assigning responsibility might be this: Other things equal, if essential medicines received their proportional share of research and development funding, what percentage of the global burden of disease would each company have to alleviate for the companies together to address the access problem? Back of the envelop calculations of contributions suggest that it is unlikely that most companies are fulfilling their obligations for the diseases in the index (Author with-held, f). lxvii (Murphy, 1998).

lxviii I set aside hard questions about merely doing vs. intending actions that do have bad consequences (or would otherwise violate rights). lxix Though patents do restrict access to some drugs, there are many different HIV/AIDS medicines under patent, for instance (WHO, 2006). lxx Moreover, many consumers vote for, and support, governments that help extend rights-violating intellectual property rights internationally and set research and development priorities that do not address global needs.lxxi The conclusion that individuals are implicated in rights violations would follow on many different accounts of responsibility. It will suffice for this paper’s purposes if the kind of responsibility at issue is some kind of moral liability.lxxii Moreover, it is plausible that we are all implicated in the causal process by which companies are able to violate rights and fail to fulfill their moral obligations – though we can describe this process many ways (Lepora & Goodin, 2013). lxxiii It is also unfortunate that it is the sickest members of developed countries that will bear the burden but, again, our world is not ideal.lxxiv (Hussain, 2013).lxxv (Hussain, 2012, 123, nt. 16).