The pharmaceutical industry regularly finds itself in the midst of controversy, often involving actions that seriously harm or threaten the universal human right to health. How does a sector intended to provide health care become so problematic, yet continue to operate without sufficient intervention? By concerning itself with profitability, the pharmaceutical industry is inherently contradictory to the promotion and protection of human rights.
Health as a Human Right
The right to health, a concept first internationally outlined in the World Health Organization’s 1946 constitution, is the fundamental right of every human to enjoy the highest attainable standard of physical and mental health. Health as a human right was solidified in the Universal Declaration of Human Rights in 1948, and again in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Part 2(c) of the ICESCR’s article 12 specifically notes that states are to provide “the prevention, treatment and control of epidemic, endemic… and other diseases”. Additionally, states are expected to provide conditions of assured medical service and attention in the event of sickness. Though the United States has never formally ratified the ICESCR, meaning it is not a legally binding document in the nation, this covenant remains an important standard in international human rights discourse and provides a necessary lens in examining the pharmaceutical industry.
The Global Pharmaceutical Industry
While the foundations of the pharmaceutical industry we know today can be traced back to apothecaries and pharmacies used in the middle ages, the industry really began to evolve in the 19th century. The German company Merck began manufacturing and selling alkaloids in 1827, and US based company, Pfizer began distributing painkillers and antiseptics during the American civil war. As these business ventures succeeded, other recognizable elements of the pharmaceutical industry such as drug research and development (R&D) were established. The United States’ buoyant post-World War II economy allowed the pharmaceutical industry to grow even more abundantly, especially as it received immense governmental support. Post war social healthcare systems also allowed the industry to expand, and there was a sharp increase of drug discoveries in the 20th century. This expansion was accompanied by increased patenting; a type of intellectual property that assures the exclusive legal rights of a design, manufacturing process, or invention for a set amount of time (usually around 20 years). The growing wealth of the industry led magnate George Merck to address ethical concerns, saying “we try never to forget that medicine is for the people. It is not for the profits.” The successes of the pharmaceutical industry include the creation of life-saving vaccines and other medicines that have resulted in arguably higher standards of health for select populations. However, it is this key point that only certain humans who live in wealthy countries or have the individual financial means are able to utilize the industry’s offerings that demands addressing. Pursuing profitability over equitable accessibility disallows the pharmaceutical industry from ever meeting its obligations to human rights.
Human Rights and Pharmaceutical Companies
All corporations are encouraged to follow the Guiding Principles on Business and Human Rights published by the OHCHR, which is a framework for operating ethically but is not legally binding. The principles revolve around a ‘protect, respect, and remedy’ approach. These components call on various actors, including states and company owners, to assure ethical business practices through a range of actions such as creating adequate legislation and policy to promote human rights and providing accessible remediation in the case of violation, among others. Although pharmaceutical companies should abide by the Business and Human Rights principles as enterprises, many argue that the industry should be held to even more rigorous standards due to the nature of their products. The responsibility to distribute medical treatments that directly impact quality of life is a crucial one. The industry holding this power must be regulated and held to the highest level of accountability. Acknowledging and revering the right to health is an often overlooked goal of the pharmaceutical industry when considering another declaration of the ICESCR; everyone has the right to freely pursue their own economic development. It is within these precedents that the pharmaceutical industry can operate, a grey area that permits CEO’s to chase gigantic profit margins while the development of some life-saving drugs is deemed better than none at all.
Human Rights Violations of the Pharmaceutical Industry
Inequitable Vaccine Access During the Coronavirus Pandemic
Examples of the pharmaceutical industry’s inability to uphold human rights because of their for-profit business model are abundant. Pharmaceutical companies are prolonging the COVID-19 pandemic by refusing equitable access to life-saving vaccines across the globe. There are numerous factors contributing to COVID-19’s growing list of fatalities, but the disparity of vaccine accessibility between nations can be significantly attributed to pharmaceutical companies chasing profits as opposed to practicing valuable public health measures. An important element of the pharmaceutical industry’s expansive control over health access are patents. One of the main arguments in favor of patents claim that they encourage innovation and reward creativity, and without a system to promote groundbreaking research, it would not be conducted. On the other hand, patents prevent the manufacturing or distribution of frequently life-saving medicines by anyone other than the owner. This gives the patent holder power to control the drug supply, set high prices, and reap the benefits of their monopolies for decades. Patents are at the root cause of many of the pharmaceutical industry’s most notorious unethical practices, and they are essential in understanding global vaccine distribution during the COVID-19 pandemic.
As the pandemic was spreading in 2020, scientists, manufacturers, and funders from across the globe were collaboratively working on speeding up the development of life-saving vaccines. In the US, Operation Warp Speed was officially announced by the White House in mid-May. This was a public-private partnership in which the US government helped finance pharmaceutical companies including Johnson & Johnson and Moderna to expedite R&D and other elements of the vaccine development process. By the end of 2020, both Pfizer and Moderna had Emergency Use Authorization issued by the FDA for their patented vaccines and since then millions of US Americans have been immunized against COVID-19. While the United States and other countries with similar financial resources can purchase enough doses from manufacturers to vaccinate their populations a few times over, lower-income countries remain at the mercy of pharmaceutical monopolies. The People’s Vaccine Alliance, a global group of organizations and activists campaigning for a vaccine available to everyone everywhere, found in a July 2021 analysis that Pfizer and Moderna have been charging governments up to $41 billion more than the estimated cost of production for vaccines. Additionally, these companies have sold over 90% of their vaccines to wealthy countries, despite the immense discrepancy in vaccine availability in lower-income countries. This highlights the underlying condition that pharmaceutical companies take into consideration when respecting the right to health, which is one’s financial resources. The pharmaceutical industry is comfortable leveraging their power in the global marketplace to continue ignoring human rights in favor of growing profit margins.
Monopolizing Life-Saving Medications
Another ethically questionable practice that relies on patents and is routine in the pharmaceutical industry is price gouging essential drugs. If a pharmaceutical company has a drug patented, they are able to control its supply and determine its pricing with no concern for competition. While this business model could be defended for other products, preventing access to medicine is a direct infringement on the human right to health. Inappropriate pricing of essential medicine is all too familiar to US Americans living with diabetes. Diabetics in the United States can expect to pay 10-12 times more for their insulin vials than an individual in Canada does, and approximately one quarter of US Americans living with diabetes are forced to ration their insulin due to incredibly high prices. Rationing insulin often leads to health complications and in some cases, fatality.
Cures Aren’t Profitable
Profits are typically the largest factor that pharmaceutical companies will consider when making decisions, despite being in the field of providing health care. This remains true when looking at what kind of drug development and research is encouraged. Many pharmaceutical companies will claim their large profits are necessary to invest back into R&D, but in actuality the internal budgets for this important element of the pharmaceutical process are small. Instead, companies can allocate funds to marketing drugs and raising salaries, while R&D efforts are financed by taxpayer money and conducted in public laboratories. This pattern also helps explain the prevalence of neglected diseases, a term referring to the many fatal diseases existing in the world that do not receive sufficient attention from drug manufacturers because their rate of return on investment is deemed too low. The fact that these diseases exist primarily outside the United States and other developed countries also accounts for their neglect. Rabies is an example of a neglected disease that is rare in the United States and survivable with proper treatment, yet kills thousands of individuals yearly in Asia and Africa who do not have accessible healthcare infrastructure. Many pharmaceutical companies will commit to limited funding of R&D for neglected diseases as a way to demonstrate their generosity. Despite this, the tendency to ultimately prioritize profit over eradication is central to the pharmaceutical industry’s wealth, and will surely continue if there are no external repercussions.
Most of the human rights abuses within the industry can be described as symptoms of turning healthcare into a for-profit sector. The incentive of financial profit in health related industries severely impacts the level of care available. For instance, ongoing illnesses that require constant treatment are the most profitable areas of drug production for pharmaceutical companies. Developing a cure for an illness, which would quickly curb the exponential profits obtained with short term treatments, is not the business model that pharmaceutical CEOs are trying to implement. The use of patents further solidifies the profitability mindset of the pharmaceutical industry. As human rights lawyer Anne Orford notes in a 2021 opinion piece, “The ability of a handful of powerful companies based in Europe and the US to claim property rights over innovations resulting from the collective processes of modern science, and to use those rights to control the pace of manufacture and the price of pharmaceutical products, is not an unfortunate side effect of this system but its goal.” If the for-profit pharmaceutical industry is predisposed to abuse human rights, who can remedy these violations and prevent additional harm from taking place?
State Actors and Industry Accountability
When identifying the shortcomings of the pharmaceutical industry’s obligations to human rights, many authors argue that additional oversight from state actors would help secure the balance that is currently lacking. These companies may be capable of abiding by Guiding Principles on Business and Human Rights, but the promise of massive profit margins often overrides their commitment to protecting, respecting, and remedying human rights.
As the state in which pharmaceutical companies Pfizer, Moderna, and Johnson & Johnson are headquartered, the United States has a responsibility to protect human rights that are impacted by these corporations. However, under international human rights law the US also has the state right to protect human rights of its own citizens, which allows for additional grey area that serves the pharmaceutical industry. The United States benefits from allowing domestic corporations to continue monopolizing global vaccine supplies, as it can afford to pay the high prices set by the companies for vaccine doses. Hoarding vaccines during a global pandemic is an unethical decision by the government that reflects an alternative interest in demonstrating power as opposed to making harm reducing public health choices. At the September 2021 Global COVID-19 Summit, US president Joe Biden said, “I made – and I’m keeping – the promise that America will become the arsenal of vaccines as we were the arsenal of democracy during World War II.” This attempt to solidify positioning in a global order instead of actually distributing life-saving medicine exemplifies that the United States government cannot be turned to as the pharmaceutical industry’s measure of accountability. Additionally, the Biden administration has been asked numerous times to support the Trade-Related Aspects of International Property Rights (TRIPS) waiver, which would temporarily pause patent protection over COVID-19 vaccine manufacturing information. The waiver was introduced by India and South Africa in October of 2020 and would allow for global manufacturers and distributors to safely create and share the life-saving vaccine with the international community. The TRIPS waiver is supported by more than a hundred governments and four hundred civil society groups. In response, the Biden administration continuously avoids concretely committing to the waiver. In the face of an ongoing pandemic that has already killed more than 5 million individuals, this lack of urgency is incredibly harmful.
Neutral, third party actors who can oversee pharmaceutical industry giants and their respective state actors may be a necessary alternative to the lack of solutions currently presented. It is imperative that any initiative to make these systems accountable and accessible is not reliant on voluntary participation. In a for-profit industry, pharmaceutical companies will always prioritize financial gain over moral business practices. For instance, an initiative created in an attempt to provide COVID-19 vaccines internationally is Covax, co-led by WHO, Gavi, and the Coalition for Epidemic Preparedness Innovations. Covax aims to use donations secured from wealthier countries to vaccinate up to 20% of countries priced out by the pharmaceutical companies. Without a human rights framework, this work can be celebrated as an ambitious humanitarian mission. However, when the obligations of states and pharmaceutical corporations are examined in the context of the international right to health, one can see that this initiative is bound to underperform. As of October 2021, the United States had only shipped 15% of its promised 1.1 billion donated doses, with other wealthy countries also lagging. The lack of accountability measures means that vaccine donations will roll out slowly, allowing for the continued emergence of new variants which further strain health care systems globally. States, particularly ones housing pharmaceutical companies that own COVID-19 vaccines, must enact policies to provide for expedited access. With nearly 1.5 billion vaccines per month being produced globally, Covax specifically notes that current vaccine inequity is a problem of distribution and not of supply. Following through on earlier claims of being an arsenal of vaccines would require US President Biden to stand up to Moderna, Pfizer, and Johnson & Johnson’s price inflammation, as well as organize tangible plans to get doses to the countries that need them. At the very least, if the US refuses to provide reliable direct donations, the Biden administration must sign the TRIPS waiver to allow free manufacturing of the vaccine in countries who need it. The continued lack of access to life-saving vaccines during an ongoing pandemic highlights the challenges facing opponents to the for-profit pharmaceutical industry.
As it currently operates, with profitability dictating decision making, the pharmaceutical industry is inherently incapable of promoting, protecting, or respecting human rights. What’s more, the actors who have the explicit power to address these corporation’s violations have also fallen prey to the greed associated with immense profit margins. The United States has, and has had, a unique opportunity to exemplify accountability measures in the pharmaceutical industry and promote universal recognition of the human right to health. This consistent refusal to legitimately challenge the pharmaceutical industry’s for-profit model creates ample need for alternative accountability measures. Perhaps a third party actor can step in to create unflinching human rights standards in the industry. More likely, however, is the need for a newly imagined system of providing life-saving medication to all humans, regardless of their financial status. The human right to health cannot be overshadowed by the desire for wealth.
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Eleanor Maybury is a French major and Management Minor at UNC Asheville and served on the editorial board.