Global Health Impact: Extending Access to Essential Medicines 9780197514993, 9780197515013, 9780197515006, 9780197515020

Table of contents :
Cover
Global Health Impact
Copyright
Dedication
Contents
Tables and Figures
Preface
Acknowledgments
Part I
1. The Human Right to Health and Access to Essential Medicines
2. The Human Right to Health and the Virtue of Creative Resolve
Part II
3. Promoting Global Health: The Case for Global Health Impact Initiatives
4. Individual Responsibility for Promoting Global Health: The Case for a New Kind of Socially Conscious Consumption
Part III
5. Consumption and Social Change: The Case of Global Health Impact Certification
6. Beyond Experimental Political Philosophy: Evaluating Global Health Impact Certification
Conclusion: Beyond Global Health Impact Labeling, Licensing, and Investment: Advancing Public Health
Appendix: The Human Right to Health’s Demands and Public Goods
Notes
References
Index

Citation preview

Global Health Impact

Global Health Impact Extending Access to Essential Medicines N IC O L E HA S S OU N

1

3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Hassoun, Nicole, author. Title: Global Health Impact : extending access to essential medicines / Hassoun, Nicole. Description: New York, NY : Oxford University Press, [2020] | Includes bibliographical references and index. Identifiers: LCCN 2020008329 (print) | LCCN 2020008330 (ebook) | ISBN 9780197514993 (hardback) | ISBN 9780197515013 (epub) | ISBN 9780197515006 (updf) | ISBN 9780197515020 (online) Subjects: LCSH: Global Health Impact (Organization : Binghamton, N.Y.) | Drug accessibility. | Medical care, Cost of. | Drugs—Marketing. | Social responsibility of business. | Consumption (Economics)—Moral and ethical aspects. | Pharmaceutical industry—Social aspects. | Right to health. | World health. Classification: LCC RA401. A1 H37 2019 (print) | LCC RA401. A1 (ebook) | DDC 362.1—dc23 LC record available at https://lccn.loc.gov/2020008329 LC ebook record available at https://lccn.loc.gov/2020008330 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America

To Sam, Isac, and Svea, with love

Contents Tables and Figures Preface Acknowledgments

ix xi xiii

PA RT  1   E X T E N D I N G AC C E S S T O E S SE N T IA L M E D IC I N E S 1. The Human Right to Health and Access to Essential Medicines

13

2. The Human Right to Health and the Virtue of Creative Resolve

36

PA RT  2   T H E G L O BA L H E A LT H I M PAC T P R OJ E C T 3. Promoting Global Health: The Case for Global Health Impact Initiatives

73

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

105

PA RT  3   E T H IC A L C O N SUM P T IO N A N D E X P E R I M E N TA L P O L I T IC A L P H I L O S O P H Y 5. Consumption and Social Change: The Case of Global Health Impact Certification

141

6. Beyond Experimental Political Philosophy: Evaluating Global Health Impact Certification

160

Conclusion: Beyond Global Health Impact Labeling, Licensing, and Investment: Advancing Public Health Appendix: The Human Right to Health’s Demands and Public Goods Notes References Index

185 193 199 247 293

Tables and Figures Figures 2.1 Healthcare Spending and Economic Growth Rise Together: OECD 2003–​2016 47  2.2 Life Expectancy and Health Spending Per Capita, 2013 (or Latest Year)

48

I2.1 Development Assistance for Health over Time

60

I2.2 Development Assistance for Health by Focus Area

60

I2.3 Development Assistance for Health by Source, 2016

61

I2.4 Development Assistance for Health by Country

62

I2.5 Total R&D Funding for Neglected Diseases (Including Malaria, TB, and HIV/​AIDS) by Sector

67

 3.1 Company Rating on the Global Health Impact Index

76

 3.2

77

Conceptual Model

 3.3 Breakdown of TB by Type and Patient Group in Model

78

 3.4

80

AIM Model

 3.5 Select Access to Medicines Index Ratings

82

 3.6 R&D in High-​Income Countries

92

 6.1 Control Condition—​Product Information Only

168

 6.2 Experimental Condition—​Label Information Only

169

 6.3

170

Experiment Results

C.1 Estimated Global Disease Burden Absent Treatment (in Disability-​Adjusted Life Years) for HIV/​AIDS

188

C.2 Estimated Global Disease Burden Averted by Treatment (in Disability-​Adjusted Life Years) for HIV/​AIDS

189

C.3 HIV/​AIDS Drug Impact Scores

189

C.4 Top 10 Highest-​Impact Countries Graph (Total Disability-​Adjusted Life Years Averted)

190

C.5 Country Impact Scores

191

Table 3.1 R&D Spending and the Global Disease Burden 2010

73

Preface As this book goes to press, millions are sheltering in place to avoid exacerbating the Coronavirus (COVID-​19) pandemic. I wrote this book before the pandemic, but I think it can help us think about how we should respond to such tragedies in two ways. First, the book argues that everyone should have a legally enforced human right to health that gives rise to a new virtue that I call creative resolve. In a slogan, creative resolve requires us to commit, imagine, and act to fulfill significant moral duties in the face of apparent tragedy. I believe the right, and this resolve, can help us transform institutional systems and promote public health. To make this case, I argue that when people have the right kind of hope, they should have creative resolve and, moreover, that the virtue embodies a particularly important kind of hope. Doing so helps explain why hope is so important for human affairs. It helps us respond effectively to threats to the very fabric of our relations with others in this rapidly changing world. Second, the book suggests a new way of using data to promote global health. By evaluating the health impacts of our efforts we can better track progress, evaluate performance, and fulfill needs. I hope this effort will, in some small way, help us address some of the most pressing threats of our time—​including the Coronavirus pandemic. All royalties from the sale of this book will benefit PATH.

Acknowledgments I would like to thank the Global Health Impact team and advisory board and all of the people and organizations that have contributed to the project. I am especially thankful for discussions about the project at the Global Fund; the World Health Organization; Princeton University; the American Philosophical Association; Cornell University; the University of Manchester; the American Philosophical Association; Concordia University; Queens University; Yale University; Binghamton University; the University of Delaware; London School of Economics; William and Lee College; the Hope and Optimism Conference, Los Angeles, California; Marist College; Global Health/​Global Justice 2015: Making New Medicines Accessible to All; International Colloquium on Justice, Democracy and Political Emotions in Transnational Perspective, Recife, Brazil; Utica College; Goethe University; The Free University of Berlin; California University; Rochester Institute of Technology; University College London; University of Pittsburgh; Duke University; Universidad De Antioquia, Medellin, Columbia; Politics and Economics Society Meeting, New Orleans, Louisiana; Santa Clara University; Harvard University; the Universidad De Antioquia; Carnegie Mellon University; University of Massachusetts Boston; Förderverein Philosophy & Economics e. V., Frankfurt, Germany; University of California, San Diego; the American Society for Bioethics and Humanities; Middlebury College; University of Colorado, Boulder; University of Connecticut; Georgetown University; Global Administrative Law Seminar, Rome, Italy; Stanford University; Dickinson College; Newcastle University; Goethe University; Philosophy of Science Association; McMaster University; International Conference on Global Human Rights; Workshop on Agency in the Mountains; Center for Empirical Research on Fairness, Inequality, and Rationality, Bergen, Norway; Ithaca College; Happiness & Wellbeing Midpoint Collaboratory at Saint Louis University; Fair Priority Setting in Global Health, Bergen, Norway; Law, Economics and Conflict:  Contemporary Challenges CRADLE Conference; Bled Philosophical Conference, Bled, Solvenia; Vanderbilt University and the Hungarian Academy of Sciences,

xiv Acknowledgments Budapest. I  would also like to thank researchers at UNAIDS, the World Health Organization, Global Fund, TB Alliance, International AIDS Vaccine Initiative, the Medicines Patent Pool, Knowledge Ecology International, New York University, PATH, and Médecins Sans Frontières for taking the time to talk with me about the project. I am very grateful for support from the Hope & Optimism Project; Academics Stand Against Poverty; Stanford University’s Center for Ethics in Society; Justitia Amplificata and the Center for Advanced Studies in Frankfurt, Germany; the Swedish–​Franco Program in Philosophy and Economics in Paris, France; the Center for Poverty Research in Salzburg, Austria; the World Institute for Development Economics Research in Helsinki, Finland; and the Berkman and Falk Foundations at Carnegie Mellon University. Binghamton University’s Poverty and Inequality and Citizenship, Rights, and Belonging Transdisciplinary Areas of Excellence, Interdisciplinary, and DeFleur grant programs provided essential support for the interdisciplinary aspects of this project, as did the Institute for Advanced Studies in the Humanities, the Institute for Justice & Wellbeing, and Harper College Dean’s Office. This work could not have been completed without the support of the Templeton Foundation’s Happiness & Wellbeing project. I deeply appreciate the comments I  received on the entire manuscript from faculty and graduate students who participated in reading groups at Binghamton and Cornell Universities and especially comments from Govind Persad, Judith Lichtenberg, Adam Etinson, Andrew Chignell, Anja Karnein, Charles Goodman, Lucia Munguia, Avi Appel, Alex Esposito, Michael Milona, Katie Stockdale, Mathias Iser, Ami Bar-​On, Lisa Tessman, Melissa Zinkin, and Anthony Preus. Daniel Hougendobler, Dale Dorsey, Anders Herlitz, Dan Haybron, Pablo Gilabert, Peter Stone, Rick Furtak, S. Matthew Liao, Udo Schuklenk, Gopal Sreenivasan, Jonathan Wolff, Dick Miller, Thomas Christiano, Aaron James, Waheed Hussain, Sarah Wright, Adina Preda, Neha Khanna, Stefan Gosepath, Kaushik Basu, James Wilson, Jim Nickel, Patti Lenard, Julian Culp, Thomas Christiano, and Erik Angner also offered extremely helpful comments on various chapters. I am particularly thankful for Tony Reeves, Gillian Brock, Darrel Moellendorf, Luc Bovens, Ralf Grahn, and Johnathan Wolff ’s willingness to read significant sections of the manuscript (sometimes several times) and for their excellent feedback.

Acknowledgments  xv Finally, I want to thank all of the students who have participated in the Global Health Impact Project for their tireless contributions—​ you are amazing! I ask for forgiveness in leaving this list vastly incomplete as there is not sufficient space to list by name all of those who have so generously contributed to the development of this project even in very, very significant ways.

PART 1

EXT E N DING AC C E S S TO E SSE N T IA L M E DICI NE S I.1.  Overview: Global Health Impact and Access to Essential Medicines Amelia coughs up blood. Most nights she wakes up sweating, and she has lost significant weight in the past few months. Amelia has active tuberculosis (TB). Although she has the good fortune to live near a health clinic, she cannot afford to see a doctor or pay for treating drug-​resistant TB.1 Many people in low-​income countries, like Amelia, cannot access the life-​ saving medicines they need (World Bank, 2013). In 2015, 400 million people lacked access to essential medicines (World Health Organization, 2015). Many people in developing countries make less than the equivalent of what about US$1,000 per year buys in the United States (World Bank, 2017). Most of these people cannot afford even relatively cheap existing drugs and technologies. Moreover, globally, scientists do little research and development (R&D) on diseases that primarily afflict the poor.2 Pharmaceutical companies focus their R&D efforts on the most lucrative products, like allergy medicines, that treat chronic conditions for affluent people. They lack sufficient incentive to produce medicines for many of the greatest global health problems that cripple, and kill, millions prematurely every year. So, doctors lack effective medicines to treat many diseases afflicting the global poor. Moreover, when existing drugs for these diseases become obsolete, due to rising resistance rates (made worse by the fact that many poor people cannot afford first-​line—​or recommended—​drugs), doctors often lack newer effective treatments. More than medicine matters. Healthcare, including medicine, accounts for, perhaps, one-​fifth of 20th-​century life expectancy gains (Daniels,

2  EXTENDING ACCESS TO ESSENTIAL MEDICINES 2008). People need health’s social determinants—​things like clean water, decent sanitation, and adequate food—​more than pills. Even inequality greatly affects people’s basic life prospects (Marmot, 2015). The conditions in which people live and their opportunities generally have greater consequences for the risks they face and their health outcomes than the medicines they can access. Still, millions will survive and flourish if they secure better access to important medicines and Global Health Impact: Extending Access to Essential Medicines focuses on the access to medicines problem, in particular. It argues that everyone should have a legal right to health that generates rights to essential medicines. Medicines are essential when people need them for even the basic minimum of health that people need to live the kind of minimally good life the book argues that the right to health should protect. (See Chapter 1, section 3, for the account of the minimally good life and its relation to the basic minimum of health that grounds the right to health and access to essential medicines.) Global Health Impact, then, provides a few new ways of helping fulfill this right. There are many reasons to improve access to essential medicines, but I embrace a human rights perspective. Some people think states, international organizations, or individuals only need to help people access these medicines to protect the public good, to assist everyone in functioning normally, or to protect equal opportunity. However, human rights discourse powerfully articulates claims to what people need to live minimally well, and I believe it is independently important to show that people should have a legal human right to health. Therefore, Global Health Impact argues that everyone should have a legal human right to health that generates a right to access essential medicines for diseases like malaria, TB, and HIV/​AIDS.3 Moreover, the book defends the legal human right to health by showing that it protects individuals’ ability to live minimally good lives, in part, because it generates a right to access these medicines. Although things are changing, historically most of the work on health and human rights focused on rights to healthcare, but the book argues that people should have human rights to a basic minimum of health (henceforth, simply, health) as opposed to just healthcare for a few reasons (Buchanan, 2014). First, healthcare is only instrumentally important (for protecting health). Moreover, people have rights to health’s social determinants—​things like clean water, adequate sanitation, and decent shelter—​as well as essential medicines and care partly because these things are important for protecting

Extending Access to Essential Medicines  3 health (Marmot and Wilkinson, 2006).4 This is so even though some things are more important to the right to health than other things. (Chapter  1 explains how international law specifies some priorities.) Finally, as new obstacles to securing health arise (such as the threat of pandemic disease), Global Health Impact suggests those responsible for protecting, respecting, and fulfilling individuals’ human rights to health should try to overcome them. I do not claim that people have a right to be healthy when they have incurable diseases. Genetic factors and behavior often limit what any agent or individual can do to protect and restore health. People do not even have a right to assistance if others have not caused, and can do nothing to prevent or help rectify, their poor health. Rather, I argue that people have a right to institutions and important goods that restore, promote, and help them maintain at least a basic minimum of health. (Chapters 1 and 2 and the Appendix discuss the right’s limits.) People must have high-​quality public health facilities and services, for instance, as well as adequate food, water, shelter, sanitation, and essential medicines (UN-​OHCHR, 1966). Moreover, everyone should refrain from undermining others’ health (Daniels, 2013). Global Health Impact does not try to determine the human right to health’s exact boundaries. It sketches an account of the minimally good life and argues that, on any reasonable way of filling in the details and on any plausible account of health, everyone should have a legal human right to health that protects their ability to live such a life. Next, it argues that the minimally good life ground for the human right to health has some advantages over the main alternatives. Finally, it considers the role the right plays in international affairs and argues that the right supports the initiatives in its second half for increasing access to essential medicines. Still, for present purposes, the right’s exact boundaries do not matter too much. On all plausible ways to fill in the human right to health’s details, it generates rights to access essential medicines for diseases like malaria, TB, and HIV/​AIDS that primarily afflict the global poor. Even some who do not think everyone has a right to health and to access essential drugs and technologies argue that pharmaceutical companies should improve poor people’s access to these things. A few suggest restructuring the incentives these companies face to encourage them to target their technologies to the poor (Flory and Kitcher, 2004). Some argue for an international agreement to fund R&D supported, for instance, by prize funds that secure open access to resulting technology (Hubbard and Love, 2004). Others advocate creating other global funds to address neglected diseases

4  EXTENDING ACCESS TO ESSENTIAL MEDICINES and antimicrobial resistance (Balasegaram et  al., 2015). Some propose a second voluntary patent system where companies that forgo traditional patents instead receive payment from a fund based on their products’ health impact (Hollis and Pogge, 2012; Hubbard and Love, 2004). There are also many existing efforts to extend access to essential medicines around the world. Organizations like the Bill & Melinda Gates Foundation (or the Gates Foundation) offer grants for work on diseases like malaria, TB, and HIV/​AIDS and give prizes for new inventions (Jarvis, 2006; Moses, 2017). Many governmental and nongovernmental organizations, like the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund), also facilitate access to essential medicines by purchasing these products and distributing them at greatly reduced prices (Global Fund, 2015a). Some public/​ private partnerships, such as the International AIDS Vaccine Initiative, promote new drug development (International AIDS Vaccine Initiative, 2017). Others, such as the World Health Organization (WHO), help people secure existing medicines (Novartis, 2014, 2017). Some companies voluntarily reduce drug prices or collaborate with countries to reduce barriers to accessing essential medicines. There are many other initiatives as well. Still, new ideas can help many people access the essential drugs and technologies they require. Partly because existing initiatives are costly and difficult to implement, they have not completely solved the access to medicines problem. Prize funds and grants require millions in investment, as do many public/​private partnerships, drug donation programs, and price reductions. It would also cost millions, if not billions, to create a Health Impact Fund (Pogge, 2007; Hollis and Pogge, 2008).5 Many existing proposals depend on developed-​country taxpayers, who may refuse to support them. So, this book presents new ideas for promoting access to essential medicines that do not have this liability. While governments have primary responsibility for securing their subjects’ human rights and ensuring that they can access essential medicines, other agents must also protect human rights in this imperfect world. Most governments lack either the resources or will to address the access problem (American Public Health Association, 2008). Furthermore, the international community has not provided the assistance such countries need to overcome it. Unless, and until, states and the international community start living up to their obligations, other agents must also help address the access problem. Global Health Impact suggests that collecting and analyzing data on global health provides new ways of improving poor peoples’ access to essential drugs

Extending Access to Essential Medicines  5 and technologies. To illustrate how data can help, it presents a new model that synthesizes and evaluates health systems data to estimate medicines’ global health consequences. It then suggests looking at medicines’ consequences, by company as well as drug, disease, and country, to create incentives for positive change. The Global Health Impact Organization that provides this model can use it (or a different one) to give the companies with the most impactful drugs, in a given year, a Global Health Impact label. It can use this label on its products—​everything from pet vitamins to mouthwash (global-​ health-​impact.org/​new). Socially responsible investment companies might consider companies’ medicines’ consequences in deciding where to invest. Insurance companies can include Global Health Impact products in their formularies. Because pharmaceutical companies rely significantly on university R&D, universities might even make it a condition of the sale of their licenses that companies agree to abide by Global Health Impact standards. And so forth. After arguing that people have a right to access essential medicines, Global Health Impact explores these initiatives, their philosophical justification, and their prospects for success. It outlines a model rating system for companies’ medicines’ effects and sets out the initiatives. It then argues that at least most developed country consumers should purchase goods from Global Health Impact–​certified companies if doing so becomes a realistic possibility. The book also reflects, more generally, on when people should support ethical consumption. Finally, it considers the empirical evidence necessary to make the case for Global Health Impact initiatives. Global Health Impact presents a few practical initiatives that merit empirical study. It provides a moral argument for supporting the initiatives (and similar ones) if further research supports them. Although the book presents some preliminary empirical evidence to support the initiatives, it mainly aims to encourage researchers to gather new data with more sophisticated experiments. Global Health Impact’s initiatives cannot eliminate the access to medicine problem, never mind all global health problems; but they provide hope. Saving even one life is a great thing. The initiatives create incentives for companies to develop new vaccines and drugs to save millions. Perhaps eventually people can solve the fundamental problems for access to essential medicines. We may need to radically reform, or come up with alternatives to, existing patent systems or even our economic or political systems more generally. Still, in the meantime, we cannot neglect the water for the sea. What

6  EXTENDING ACCESS TO ESSENTIAL MEDICINES the Global Health Impact initiatives lack in potential scope, they gain in practicality. Moreover, people can support the initiatives and endorse much more radical proposals for positive change.

I.2. Approach Traditionally, bioethicists focused on clinical ethics rather than population health issues, and the literature does not give due weight to problems afflicting the global poor. Researchers should pay much more attention to the world’s most pressing global health problems. They should help policymakers better address them. Moreover, few philosophical texts take empirical work seriously enough. Global health and justice raise some of the most pressing and important issues that confront humanity today. Any work on these subjects that ignores empirical reality fails in an important way; to come to sound conclusions about the real world, researchers must take into account agents’ capabilities and capacities and institutions’ strengths and weaknesses. Global Health Impact helps to fill these gaps. Millions suffer and die young from poverty-​related illnesses. The book provides some novel initiatives for helping address the problem. Both the questions it considers and the methodology it employs span disciplines. What policies for addressing the most pressing global health problems do moral principles support? What consequences do different policies have? How much do pharmaceutical companies’ technologies benefit the global poor? The book examines these and similar questions relying on work on human rights and global health by philosophers, lawyers, economists, political scientists, sociologists, epidemiologists, anthropologists, and others. Although the book primarily proceeds via philosophical argument, it also uses empirical data, theoretical models, and case studies to make important points. Global Health Impact tries to make philosophical debates relevant to policy and to make policy debates theoretically coherent. The book bridges the gap between pure philosophical theory and applied work on public policy—​considering new policy initiatives’ philosophical basis. I hope it can realistically address the theoretically challenging and practically important access to medicines problem. I doubt a single book can satisfy everyone, and interdisciplinary work risks satisfying no one. Some may want more technical details than the text

Extending Access to Essential Medicines  7 provides, and some may find the manuscript too technical. So, the project’s website (global-​health-​impact.org/​new) provides further details about the Global Health Impact Index, alternative specifications, and sensitivity analysis. Interested readers can find further scientific details in Hassoun (2015c, 2016c, 2016d) and Esposito and Hassoun (2017). They can find foundational philosophical work in Hassoun (2012a, 2012b, 2013b). Those primarily interested in the philosophical questions can just skim Chapters 3 and 6. Those interested primarily in the book’s science and policy side can focus on Chapters 3 and 4 and Chapter 6’s 3rd and 5th sections.

I.3. Chapter Summaries The book has three parts, and each contains two chapters. The first part makes the case for a human right to health and to access essential medicines, in particular. It defends the human right to health against recent criticism. The second part develops the Global Health Impact initiatives and makes the case for consuming things with Global Health Impact, and similar, ethical labels. The final part defends ethical consumption in general and considers the empirical evidence necessary to support such initiatives for positive change. Each section is modular: readers need not accept the arguments in preceding sections to endorse those in subsequent ones (or vice versa). The first chapter argues that everyone should have an enforceable legal human right to health that includes a right to access essential medicines to treat diseases like malaria, TB, and HIV/​AIDS. The literature suggests many different ways to ground human rights. Some start from concern for individual interests, others start from concern for autonomy, yet others focus on community (Tasioulas, 2007; Nickel, 2007; Talbot, 2010; Wong, 2001). This chapter suggests grounding the right, at least in part, in concern for individuals’ ability to live minimally good lives. The chapter does not completely account for the right’s basis; the right may also have to protect everyone’s equality and dignity, for instance. Nevertheless, it argues that everyone needs at least the basic minimum of health necessary for (and, plausibly, partly constitutive of) a minimally good life. Lacking access to essential medicines characteristically undermines individuals’ ability to secure such health and, so, to live such lives. So, people should have a legal human right to health that grounds rights to access essential medicines.

8  EXTENDING ACCESS TO ESSENTIAL MEDICINES The second chapter suggests an alternative role for the human right to health in international affairs. It argues that the legal human right to health not only generates an enforceable claim to health but also requires obligation bearers to try hard to fulfill its demands. More precisely, the human right to health may do many things; but, importantly, it fosters a new virtue I call creative resolve. This resolve embodies a fundamental commitment to finding creative ways to avoid apparently tragic dilemmas. Rather than primarily helping policymakers decide how to ration scarce resources, the human right to health gives human rights claimants, advocates, and duty bearers reason to find ways to fulfill everyone’s claims. Creative resolve gives them a response to apparent tragedy by motivating them to avoid it. Since essential medicines help protect individuals’ ability to live minimally good lives, duty bearers should at least try to fulfill individuals’ human rights to health by providing these goods. The second section takes up this call to action in outlining some new initiatives for doing so. After Chapter 2, the introduction to the Global Health Impact’s second part lays the groundwork for the Global Health Impact initiatives by discussing the post-​2015 development agenda for global health. It canvasses a few movements promoting the human right to health and advancing access to essential medicines that illustrate creative resolve. It also introduces the major players in global health and explains how they help extend access to essential medicines to the poor. It discusses international organizations like the US President’s Emergency Plan for AIDS Relief; the WHO; the Global Fund; the US Agency for International Development; Joint United Nations Programme on HIV/​AIDS; Gavi, The Vaccine Alliance; and the TB Alliance. It explains how such organizations can get involved in the Global Health Impact project. It also discusses the international community’s interest in the endeavor. The third chapter presents the Global Health Impact initiatives for addressing the access to medicines problem. Again, it suggests rating pharmaceutical companies based on how their drugs affect global health. It presents a model rating system that evaluates key drugs for the biggest global health threats—​including HIV/​AIDS, TB, malaria. This rating system focuses on health needs, drugs’ effectiveness, and treatment percentages. The model rates each company on how its drugs measure up in these three categories. It scores companies by summing up their drugs’ impacts. This opens the door to ranking companies and giving the companies with the most important drugs a Global Health Impact label to use on all their products.

Extending Access to Essential Medicines  9 Highly ranked companies have an incentive to use the label to get a larger market share. If Pfizer has a high rank, for example, it can use a Global Health Impact label on its analgesic Advil. If Global Health Impact goods capture an additional 1% of generic and consumer healthcare sales, that creates a more than US$3 billion incentive for pharmaceutical companies to become Global Health Impact–​certified (for explanation, see Chapter 3) (Visiongain, 2010). They can do so by expanding access to effective medicines the global poor need. Insurance companies (both public and private) can also include Global Health Impact drugs in their formularies. Further, socially responsible investment companies can include Global Health Impact companies in their portfolios. Finally, having a Global Health Impact certification system for pharmaceutical companies opens the door to fruitful social activism. These initiatives have some advantages over, and policymakers can combine them with, other mechanisms for expanding access to essential medicines including Aidan Hollis’ and Thomas Pogge’s Health Impact Fund (Hollis and Pogge, 2008). The Global Health Impact labeling and investment strategies the third chapter defends will not solve all global health problems. Still, they have the potential to make a significant difference in many people’s lives. The fourth chapter focuses on the moral case for supporting a Global Health Impact labeling initiative, in particular. If Global Health Impact labeling succeeds, it gives companies a reason to produce important drugs that can help millions. One might wonder, however, whether consumers should purchase goods from Global Health Impact–​ certified companies. This chapter argues that (1) pharmaceutical companies violate rights, (2) pharmaceutical companies do not do enough to address the access to medicines issue, so (3)  if the labeling initiative helps rectify these problems, people should generally purchase goods from Global Health Impact–​certified companies. Again, the third chapter defends the idea that purchasing goods from Global Health Impact–​certified companies creates incentives for companies to help people secure essential medicines at some length. Moreover, the last chapter provides some preliminary empirical evidence to support the initiative. It also explains how to gather more evidence. So, it should follow that people should generally purchase goods from Global Health Impact–​ certified companies. After Chapter  4, the introduction to the book’s last part examines objections to the idea that consumers must purchase Global Health Impact–​ labeled goods (and support ethical consumption more generally). It discusses social movements that provide models for implementing the Global Health

10  EXTENDING ACCESS TO ESSENTIAL MEDICINES Impact labeling initiative such as fair trade. In doing so, it isolates the main objections to other ethical labels and considers whether they pose problems for the Global Health Impact initiative. Some object to the conception of how consumers should think about their basic economic powers implicit in such initiatives. Others question ethical consumption initiatives’ likely consequences and sustainability. The book’s final chapters address these problems. The fifth chapter considers how consumers should think about their basic economic powers as different ways of doing so yield different accounts of ethical consumption. It defends the positive change view. On this view, people can consume what they want under just institutions (as long as they respect the institutions’ rules). Absent just institutions, people cannot just consume whatever they want. Still, they can (and, sometimes, should) pursue genuinely positive change within these constraints. Several authors argue that only democratic consumption is ethical. Some suggest, for instance, that people can only use consumption to bring about social change if they aim to bring about democratic institutional change and promote public, open-​ minded, transparent debate with many stakeholders. On these views, people can only consume goods from Global Health Impact–​certified companies to promote positive change if, in doing so, they promote democratic change. The fifth chapter argues that people can aim at democratic change but that they need not always do so. It argues that people must promote genuinely positive change. They cannot just do whatever they think will bring about such change. The chapter suggests that if democracy is too central, it can prevent truly positive change but that, at the same time, it can help bring about such change. On the positive change view, although people should promote democracy, they can also promote other positive processes and outcomes. This book’s sixth, and final, chapter argues that examining the prospects for the Global Health Impact initiatives will not only help substantiate them but expand traditional philosophical inquiry’s domain in an important way. It presents a new way of testing consumers’ willingness to make decisions based on a Global Health Impact label. It proposes putting a Global Health Impact label on a few over-​the-​counter products to collect sales data. These data can reveal changes in consumers’ willingness to purchase these products compared to otherwise similar products. This chapter also considers how researchers might examine policymakers’, socially responsible investors’, universities’, pharmacies’, and benefits managers’ perceptions of the rating system. These tests illustrate a new kind of experimental philosophy. Most

Extending Access to Essential Medicines  11 experimental philosophy uses psychological methods to examine individuals’ intuitions. But researchers should consider other useful methods too. One can imagine experimental philosophy that adopts sociological, anthropological, or other social scientific methods to answer important questions. Finally, the chapter suggests that policymakers need new experimental work on practical initiatives promoting access to medicines and social justice more generally. At least, good action-​guiding theories must comport with sound practice. So, policymakers should consider what works in practice as well as theory.

I.4. Conclusion Thinking beyond this book’s initiatives for incentivizing pharmaceutical companies to extend access to essential medicines more broadly, policymakers can use data about medicines’ global health consequences for many other reasons. They can, for instance, look at individual drug scores and consider drugs’ relative effects on the diseases in the Global Health Impact model as well as examine drug scores aggregated by company. Policymakers can also look at medicines’ consequences in each country in the world (so the model provides something like a Human Development Index for health). Researchers can use health impact data in cross-​country regressions to figure out how alleviating these diseases influences things like international development, education, or conflict. Finally, researchers can consider what contributes most to Global Health Impact (or similar models’) scores at the country level. Plausible answers include country-​level health systems, international aid, and changing disease transmission rates. Empirical research can expose what really matters. Using the data such models provide in other ways can help policymakers address some of the world’s worst health problems. No single solution to all global health problems exists, but data on health impact opens the door to improving global health everywhere.

1 The Human Right to Health and Access to Essential Medicines Hundreds of thousands . . . are still dying every year in the global South not because we do not know how to save them—​we do, and we have for well over half a century—​but because their lives are not valued. Yamin (2016, 7)

1.1. Introduction Untreated AIDS devastates.1 Patients often suffer from terrible lesions, pneumonia, nausea, emaciation, and seizures and, eventually, die. Should everyone have a legal human right to health? Should the right include a right to access essential medicines to treat diseases like AIDS? This chapter argues that everyone should have a legal human right to health—​that includes a right to access medicines essential for health—​because this right protects their ability to live minimally good lives.2 Although it is possible for people suffering from serious health problems to live minimally good lives, these problems pose significant threats to their ability to do so. The human right to health, in helping people access the health services and other things they need to prevent and treat health problems, reduces the risk these problems pose to people’s ability to live minimally good lives. Only a complete account of health and its relation to the minimally good life can delineate the right’s exact boundaries. However, this chapter suggests that, on any reasonable way to fill in the minimally good life account and think about health, people need health for, and it may even partly constitute, a minimally good life. Moreover, it argues that this account has some advantages over the narrower alternative (e.g., agency and opportunity grounds for the human right to health).3 It argues that the right requires a broad, pluralistic ground. To protect the Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

14  EXTENDING ACCESS TO ESSENTIAL MEDICINES human right to health appropriately, obligation bearers must understand why people have it. Researchers cannot create good human rights indicators or measure performance in respecting, protecting, and fulfilling the right if they do not understand what the right requires. The rest of the chapter proceeds as follows. The next section outlines the human right to health as I believe it is currently articulated in international law. My reconstruction is, in some respects, controversial. Critics will probably point out that key legal texts do not fully specify all aspects of my analysis and that, in practice, states often interpret the right to advance their interests (Neumayer, 2005; Posner, 2014). There is also a large debate about whether corporations have human rights obligations, and I simply assume that, on a justifiable interpretation of the human right to health in international law, they do (though, for some defense, see Duruigbo, 2008; Ratner, 2001).4 Moreover, I do not take the current absence of appropriate enforcement mechanisms to provide any objection to the claim that it is justifiable to enforce the obligations correlative to the human right to health (Posner, 2014; O’Neill, 2000). Still, the next section sketches the broad outline of the right as I understand it. The third section sketches an account of the minimally good life and explains how protecting individuals’ ability to live this kind of life requires protecting their ability to secure at least the basic minimum of health they need for such a life (those with little interest in the deeper philosophical details of the account can skim this section). Section 4 defends this account of the right’s basis by explaining its advantages over the main alternatives in the literature. Section 5 concludes that people should have a properly instituted and enforced legal human right to health that protects their ability to live a minimally good life.5 Those interested primarily in the policy side of the Global Health Impact proposal may read the next section and then skip the sections providing a deeper ethical foundation for the legal right or even skip directly to Chapter 3, which starts to work out how the right can guide action in international affairs.6

1.2.  The Legal Human Right to Health The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains the social and economic rights in the Universal Declaration of Human Rights’ second part (Articles 22–​27). The ICESCR’s

Human Right and Access to Essential Medicines  15 Article 12 sets out the legal human right to health. It states that everyone has a right to physical and mental health. Moreover, it specifies that this requires trying to reduce stillbirth and infant mortality rates; promoting healthy childhood development; improving environmental and industrial hygiene; preventing, treating, and controlling endemic, epidemic, occupational, and other diseases; and helping all sick people access medical services (United Nations Office of the High Commissioner for Human Rights, 1966).7 The United Nations (UN) Committee on Economic, Social, and Cultural Rights (CESCR) explicates the right further. The CESCR interprets, and monitors the fulfillment of, human rights in the ICESCR. Although it does not provide binding guidelines, its General Comment No. 14 on The Right to the Highest Attainable Standard of Health helps clarify the right’s meaning. This General Comment states “health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity,” or a minimally good life (as I will put it) (United Nations Committee on Economic, Social and Cultural Rights, 1990).8 The General Comment specifies that the right to health generates rights to many of the things people need for a basic minimum of health (henceforth, I primarily refer to this as health simpliciter, though again I take it that the kind of health at issue is just that necessary and important for living a minimally good life). Moreover, the CESCR’s General Comment No. 14 provides guidance for the rights’ obligation bearers. The comment says that the right to health includes rights to health’s social determinants (e.g., safe water, food, and a sanitary and healthy environment). Furthermore, it specifies some priorities for fulfilling the right (Marmot, 2015; Marmot and Wilkinson, 2006).9 It says that everyone needs to have accessible, acceptable, available, and sufficiently high-​quality public health facilities and services (Gostin, 2001). The General Comment also specifies that, at a minimum, people must have “(1) access to health services on a nondiscriminatory basis, especially when they belong to vulnerable or marginalized groups; (2) sufficient food that is nutritionally adequate and safe; (3) basic shelter, sanitation, and safe and potable water; and (4) essential drugs” (Gostin, 2001, 30).10 Moreover, other ICESCR articles and general comments explain obligation bearers’ human rights responsibilities further. The ICECSR’s Article 2(1) specifies that

16  EXTENDING ACCESS TO ESSENTIAL MEDICINES Each State Party to the present Covenant . . . [must undertake] . . . steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (United Nations Office of the High Commissioner for Human Rights, 1966)

While, the third general comment states The Committee notes that the phrase [in Article 2(1)] “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-​established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. (United Nations Committee on Economic, Social and Cultural Rights, 1990)11

That is, all states must do what they can to protect and fulfill their citizens’ human rights. They must also help other states that require assistance. Moreover, on the standard account of human rights responsibilities, other agents (e.g., companies and individuals) have secondary duties to assist when states do (or can) not do so. Every agent must respect and refrain from violating human rights. That is, no agent should make it difficult or impossible for people to fulfill their human rights. International law must further specify human rights standards to provide concrete guidance in many cases.12 As John Ruggie, the UN special representative to the secretary-​general on transnational corporations and human rights, puts it, “Broad aspirational language may be used to describe respect for human rights, but more detailed guidance in specific functional areas is necessary to give these commitments meaning” (Ruggie, 2008, 18). Responding to this call to action, Paul Hunt, who was at the time the UN special rapporteur on the human right to health, issued the Human

Human Right and Access to Essential Medicines  17 Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, in particular. These guidelines specify that companies should issue a human rights policy statement that recognizes this right. They explain how companies should act to respect and protect rights in everything they do from clinical trials to R&D, pricing, and marketing (Hunt, 2008a; Hunt, 2008b; Ezer and Cohen, 2013). The guidelines specify, for instance, that “companies must do all they reasonably can to ensure that medicines are available in sufficient quantities in the countries where they are needed” (Lee and Hunt, 2012, 225). They also suggest that companies must contribute to developing drugs for neglected diseases (diseases that primarily afflict the poor). Companies must make sure all patient groups—​not only rich patients or those in developed countries—​can access the drugs they produce. They should offer voluntary licenses to manufacture, import, and distribute essential medicines in all low-​and middle-​income countries and should not make it more difficult or impossible for people to access essential medicines by, for instance, lobbying to extend patent protection on “insignificant or trivial modifications of existing medicines” (Hunt, 2008a, 22).13 Other agents, including individuals, groups, and nongovernmental organizations, must respect, protect, and help fulfill human rights. As the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms puts it, “all members of the international community shall fulfill, jointly and separately, their solemn obligation to promote and encourage respect for human rights and fundamental freedoms for all” (United Nations, 1999). The declaration goes on to explain that people should not contribute by action or inaction to violating rights and that individuals and groups should respect rights and promote their fulfillment (e.g., through education). Moreover, everyone should contribute to social systems that secure rights in their nation and internationally.14 I do not take the law to specify that people have a right to health even if others can do nothing to prevent or help rectify their poor health. Rather, it says that states must, with the international community’s assistance, assure their subjects’ access to the institutions and important goods that restore, promote, and maintain their health, where possible and otherwise permissible (and refrain from interfering with subjects’ access to these things). The right focuses on “the relevant, socially-​controllable actions  .  .  . that affect population health and its distribution” (Daniels, 2013).15

18  EXTENDING ACCESS TO ESSENTIAL MEDICINES Presumably, international law talks about the right to health, as opposed to the right to healthcare, because people need more than healthcare to secure health; many other things do even more to protect health. Healthcare only accounts for, perhaps, one-​fifth of 20th-​century gains in life expectancy (Daniels, 2008). More importantly, people need health’s social determinants including things like clean water, decent food, a safe environment, and adequate sanitation (Frieden, 2010; Marmot, 2015).16 Researchers can measure progress in fulfilling the right to health by considering individuals’ health status. This is so even though, as the introduction explained, no one has a right to be healthy when they have incurable diseases, and genetic factors and behavior often limit what people can do to protect and restore health. Because it does not matter too much for the arguments that follow how international law specifies human rights responsibilities further, for now, I focus on defending the idea that everyone should have a human right to health understood in something like this way. That is, for the sake of argument, I accept this rough account of responsibilities for fulfilling individuals’ rights to health:  states have primary responsibility for ensuring that their subjects can fulfill these rights, and other states, companies, and individuals should help fulfill them when states fail to do so. Moreover, no agent should make it difficult or impossible for people to fulfill their human rights to health. I offer one argument that might support this division of responsibility in Chapter 4.17 Here, I just argue that everyone should have an international legal human right to health that provides a claim to access healthcare including essential medicines. That is, I argue that all states (not just signatories of the ICESCR) must ensure that this care is available to all people in their territories.

1.3.  Human Rights, Health, and the Minimally Good Life Although questions about proper interpretation and emphasis remain, this chapter defends the legal human right to health as sketched in Section 1.2 above.18 That is, I believe many aspects of the CESCR’s interpretation of the right are plausible, and it provides part of the best account of what people can claim under the right. The chapter argues that everyone should have this right because it protects individuals’ ability to live minimally good lives.19 I  think this is a good way to understand the CESCR’s claim that “every human being is entitled to the enjoyment of the highest attainable standard

Human Right and Access to Essential Medicines  19 of health conducive to living a life in dignity” (United Nations Committee on Economic, Social and Cultural Rights, 1990, emphasis added). That is, I think the right should help everyone get as close as possible to living a dignified, or minimally good, life.20 If the way I propose thinking about the minimally good life respects cultural and individual differences, it can help secure broad agreement on the universal right to health’s content helping to interpret the minimal standard of protection and provision the ICESCR’s Article 12 is supposed to guarantee (United Nations Office of the High Commissioner for Human Rights, 1966; United Nations Committee on Economic, Social and Cultural Rights, 1990). Perhaps other things also ground the right, but the fact that the human right to health protects individuals’ ability to live minimally good lives suffices to do so. What follows explains how I think about the minimally good life and how it can ground rights to health and to access to essential medicines, in particular.

1.3.1.  The Minimally Good Life Consider one way of thinking about what people need to live a minimally good life. On my account, to live a minimally good life, a person needs (1) an adequate range of the (2) fundamental conditions (3) necessary and/​or important for (4) securing those (5) relationships, pleasures, knowledge, appreciation, and worthwhile activities, etc. that (6) a reasonable and caring person would set as a minimal standard of justifiable aspiration.21 The relationships, pleasures, knowledge, appreciation, and worthwhile activities, etc. that a reasonable and caring person would set as a minimal standard of justifiable aspiration are the things that make lives minimally good. These things set the minimal standard to which people can justifiably aspire. Consider each part of this sketch in turn. First, what does it mean to say people only need an adequate range of the things necessary and/​or important for living minimally good lives? Consider the ends of the scale. Minimally good human lives need not be perfect, or even very good, but must contain enough value, pleasure, and significance.22 A life completely insignificant, lacking value, and filled with pain and suffering is not minimally good. On the other hand, some human lives fall below minimally good ones and yet have some significant, pleasurable, and valuable things in them. In other words, minimally good lives require more than lives just barely worth living. An adequacy threshold for securing the things

20  EXTENDING ACCESS TO ESSENTIAL MEDICINES that make a life minimally good must be set so that the life falls between one that is not worth living and one that is purely good. More precisely, a minimally good life is well worth living or a life at the lowest flourishing levels (though I do not interpret flourishing in a traditional welfarist way—​some live minimally good lives that are not good for them—​consider someone who sacrifices a lot for others).23 Second, internal and external, natural and social conditions for securing the things that make life minimally good are fundamental. People require resources, capacities, and institutional structures, among other things (Liao, 2015). Everyone needs adequate food and water, and most require some education, shelter, social and emotional goods, etc. Moreover, besides satisfying their material needs, people need basic capacities, liberty, and autonomy (Hassoun, 2009, 2012b). Everyone should at least have the ability to think and connect with others and develop important skills, among other things. People also require social and institutional structures that support their capacities’ development and allow them to secure the things that make life minimally good. They must have the opportunity to interact with others, to learn, “to evaluate and appreciate things,” and to determine their life’s direction (Liao, 2015). Third, the fundamental conditions for living a minimally good life only include those necessary and/​or important for securing the things that make one’s life minimally good. Conditions are necessary for securing the things that make one’s life minimally good when one cannot secure these things without them. Conditions are important for securing these things when they help one do so and one finds it difficult to secure the things one needs to live a minimally good life without those conditions. Since some fundamental conditions included in the adequate range only help people secure the things that make their lives minimally good, many different sets of fundamental conditions suffice for a minimally good life. Moreover, in different sets, people have different resources, capacities, opportunities, liberties, autonomy, and so forth, though everyone may need some amount of each to live a minimally good life. Fourth, one has secure access to the things that make one’s life minimally good when one, normally, can attain them without excessive difficulty and one’s risk of losing this access is minimal. One’s attaining some things necessary for living a minimally good life cannot undermine one’s ability to attain other things on the list (Wolff and de-​Shalit, 2007).

Human Right and Access to Essential Medicines  21 Fifth, many things may make a person’s life minimally good including relationships, pleasures, knowledge, appreciation, and worthwhile activities. This list is not exhaustive. People also need some recognition and respect to live minimally good lives. Severe discrimination can undermine individuals’ ability to live the minimally good lives at issue. Protecting this ability safeguards individuals’ basic moral status or dignity. Sometimes historical circumstance determines what people need to live minimally good lives. As Adam Smith (1776/​1904) pointed out, people need linen shirts to take part in public life in some societies and not others. Often, people need culturally appropriate food and other resources (Sen, 2000). Some people require particular cultural practices, ways of life, or societies to flourish. Others require opportunities or resources that they cannot secure when or where they live but that they might secure elsewhere in the near future. Still, there are facts about what people need to live minimally good lives (Fletcher, 2013). People do not always know what they need to live a minimally good life (Sen, 1983, 1987). While it matters that people can satisfy some important desires, some things can contribute to their flourishing even if they do not desire those things.24 Pure preference and true urgency differ.25 Surprising things often make people’s lives better. However, it does not matter too much for the arguments that follow whether or not one accepts each of these claim. Finally, distinguish between what people need to live the kind of minimally good lives that the human right to health should protect and the much different (and often lower) standard applicable for reasonably affirming that even some severely disadvantaged people live minimally good lives. This book focuses on what enables people to live minimally good lives in what Dan Haybron calls a “justified aspiration” sense; everyone should get as close as they can to securing this standard (2013, Ch. 8). When people does not secure this much, however, they (or their advocates) can sometimes still “reasonably affirm” that they live a minimally good life (Haybron, 2013, Ch. 8). This is the sense in which even some of those who cannot meet many of their basic needs—​are severely disabled, subject to great injustice, and so forth—​ can live minimally good lives (Kittay, 2005).26 People cannot cause such disabilities or even fail to prevent them. Still, we can “reasonably affirm” that people live minimally good lives when they have the right care. Moreover, the reasonable affirmation sense of the minimally good life can help guide efforts to evaluate support and care facilities. The justified aspiration sense of the minimally good life plays a different role: it specifies the standard that

22  EXTENDING ACCESS TO ESSENTIAL MEDICINES everyone should get as close to reaching as possible. It plausibly demands much more than what people need reasonably to affirm that someone has had a minimally good life, given the limits of possibility. Importantly, the justified aspiration standard can demand significant social and institutional change and prohibit trying to change those who are currently unable to reach its threshold for a minimally good life. Still, the “reasonable affirmation” sense of the minimally good life may be as important as the justified aspiration” sense. It just embodies a different epistemological standard that plays a different normative role.27 Often, people should care more that they can look back at their lives and reasonably affirm them than that they secure everything to which they have a justified aspiration. Still, I focus on the “justified aspiration” sense of the minimally good life here.28 To understand what makes lives minimally good in the “justified aspiration” sense—​what a reasonable and caring person would set as a minimal standard of justifiable aspiration—​consider what someone about whom one knows little—​say, a newborn infant—​needs for a life at the lowest flourishing level (Hassoun, 2013a, 2016a, 2018b). Their life’s relationships, pleasures, and worthwhile activities must sufficiently compensate for their difficulties, pains, losses, and frustrations so that reasonable, caring, and free people would not seriously doubt their ability to satisfactorily live it.29 Moreover, at any particular point in time, this must be the case for their life to reach the threshold for a minimally good one. (Though, overall, one might live a minimally good life if one just comes as close as possible to doing so and people can reasonably affirm lives that never come this close. Moreover, the right requires helping people live out their normal life expectancy at any given time minimally well.30) One should not ask whether any given individual would trade her or his current life for a minimally good one—​many fortunate individuals would not. One must just have no serious reason to doubt that that person can live life well. However, people must focus on what each individual, in all their particularity, needs in setting the standard sufficient for everyone (so that each person will have a human right to what that person needs). Everyone must fulfill basic needs and secure basic resources, have sufficient opportunities and capabilities, and avoid dignity-​undermining discrimination (among other things).31 At least, people should get as close as possible to this standard.32 My proposed account provides a minimal standard appropriate for human rights; it brackets many important disagreements about what social justice requires in providing a standard many can endorse. On the account, people

Human Right and Access to Essential Medicines  23 only need an adequate range of the things that let them live minimally good lives; they do not need everything from which they could benefit. People only require what is necessary and/​or important for living a minimally good life. Moreover, the standard to which people can justifiable aspire just leaves no serious reasons to doubt that they can live their lives well. People need not have everything that might contribute to their ability to live minimally good lives; they only need a sufficient range of the things that help them live such lives.33 Even as it stands, however, my account plausibly expands beyond some alternative ways of thinking about minimally good lives. As Rowan Cruft helpfully summarizes Matthew Liao’s view, for instance, it focuses on what “human beings qua human beings need in order to . . . pursue . . . basic activities” (Cruft, 2015, 103). These activities affect individuals’ lives as a whole (Cruft, 2015, 103). However, I  reject the idea that people can live minimally good lives because they have what would suffice for most people if they need more to pursue basic activities etc. Individuals may have idiosyncratic needs (e.g., for healthcare or social conditions) that allow them to live minimally good lives. Further, contra Liao (2016), human rights should not only protect individuals’ ability to pursue the things necessary for living minimally good lives. People should be able to secure what they need for minimally good lives insofar as possible. Moreover, normally, people must find it easy enough to do so. Furthermore, although I have not tried to list definitively the things that can contribute to a minimally good life, I have specified that people need much more than basic activities—​though Liao (2015) says that these can include passive as well as active pleasures, good relationships, and knowledge. As capability theorists point out, it matters what individuals can be as well as what they can do. Finally, some things contribute to minimally good lives that do not, on their own, impact individuals’ lives as wholes. Many small pleasures together can enhance life’s quality even if none does so alone. Again, on my view, a person needs (1) an adequate range of the (2) fundamental conditions (3) necessary and/​or important for (4) securing those (5) relationships, pleasures, knowledge, appreciation, and worthwhile activities etc. (5) a reasonable and caring person would set as a minimal standard of justifiable aspiration. Again, I believe this standard will ensure that everyone can meet their basic needs and secure adequate resources, opportunities, capabilities, and so forth. I believe that this book’s account can capture most things on the common lists of what makes lives minimally good. As Richard Kraut suggests, people often need “cognitive, affective, sensory, and social powers (no less than

24  EXTENDING ACCESS TO ESSENTIAL MEDICINES physical powers)” to live such lives (2009, 137). People also need some liberty, autonomy, capacity for action, and understanding to live minimally good lives, while accomplishment, aesthetic experience, and deep personal relationships can contribute to such lives (Griffin, 1986).34 Martha Nussbaum’s suggestion that a “fully human” life includes threshold levels of central human capabilities highlights yet other central components: life, health, bodily integrity, sensation, imagination, thought, emotions, practical reason, affiliation, connection with other species, play, and control over one’s environment (though I doubt everyone needs everything on Nussbaum’s list for a minimally good life) (Nussbaum, 2000a, 71). The next section argues that the human right to health protects individuals’ ability to live minimally good lives on the assumption that everyone must be able to meet basic needs and secure adequate resources, opportunities, capabilities, and so forth to live such lives. To accept its argument, however, one need only grant that the common lists of what makes lives minimally good contain some truth. What follows argues that, on each, the human right to health protects individuals’ ability to live minimally good lives because people at least need a basic minimum of health to live such lives. I leave further work on cashing out the fundamental conditions necessary and/​or important for individuals to live minimally good lives for another time.

1.3.2.  Health and the Minimally Good Life The human right to health protects the health people need to live minimally good lives in the justified aspiration sense (henceforth, simply, minimally good lives). People disagree about what constitutes health, and only a fully worked-​out account of the minimally good life will explain exactly what basic minimum of health people need to live such a life (Murphy, 2015).35 Still, people need some basic minimum of health to live a minimally good life on all plausible accounts of health and ways to fill in the account of the minimally good life.36 Not every health problem undermines individuals’ ability to live minimally good lives, but pain, suffering, and incapacity often do. Poor health can undermine one’s cognitive, affective, sensory, physical, and social powers; bodily integrity; sensation; imagination; liberty; autonomy; understanding; thought; emotions; practical reason; ability to connect with other species; play; control one’s environment; and accomplish anything significant. Poor health can even undermine one’s ability to act, affiliate, have

Human Right and Access to Essential Medicines  25 aesthetic experiences, love, and maintain deep personal relationships. In the worst cases, people die. Consider, for instance, how AIDS often undermines individuals’ ability to live minimally good lives on many ways of filling in the details of the account. Those diagnosed with AIDS often face severe discrimination and the threat of violence. Even today, in many countries, community members and families ostracize those who come out as HIV-​positive (Stigma Index, 2009; Koka et al., 2013). Many are also unable to secure and maintain decent employment, education, and medical care for other reasons (Feyissa et al., 2012; UNAIDS, 2017, 2015; Stigma Index, 2009; Koka et al., 2013). The condition itself causes some of these obstacles to living a minimally good life (e.g., because it results in pain, nausea, fatigue, and so forth), but others result partly from how people respond to those afflicted with AIDS. Moreover, AIDS not only undermines individuals’ ability to act, affiliate, love, and maintain deep personal relationships but devastates patients’ health and, so, their ability to live minimally good lives in other ways. As noted earlier, patients with AIDS often suffer from terrible lesions that damage their bodily integrity. Many untreated AIDS patients suffer from pneumonia, emaciation, and seizures. Some acquire other infections like TB or even cancers like Kaposi’s sarcoma. Patients with TB often have trouble breathing, have fever and chills, and cough up mucus or blood. Moreover, TB can cause problems with their kidneys, liver, heart, and bones. Sometimes TB patients get meningitis, which can cause nausea, vomiting, seizures, paralysis, and impaired mental function (McIntosh, 2017; Buse, 2017; Doctors Without Borders, 2012). Internal and external tumors from Kaposi’s sarcoma may result in bleeding and obstruction of a patient’s gastrointestinal tract or even respiratory failure if the cancer infects the lungs. Kaposi’s sarcoma can also affect other visceral organs like the spleen, liver, and heart, as well as bone and bone marrow (Krown, 2006). Many of the conditions HIV/​AIDS patients suffer lead to permanent disabilities that undermine patients’ liberty; autonomy; cognitive, affective, sensory, physical, and social powers; sensation; and imagination. Seizures can, for instance, lead to severe cognitive deficits and erode patients’ understanding, thought, emotions, practical reason, and ability to accomplish anything significant. Untreated AIDS kills almost all of its victims young (Doctors Without Borders, 2012; Kim et al., 2017). The dead are unable to do anything (even have aesthetic experiences, play, or connect with other species).

26  EXTENDING ACCESS TO ESSENTIAL MEDICINES Other diseases, like malaria, that do not carry severe social stigma can also undermine individuals’ ability to live minimally good lives.37 When the malaria parasite infects and kills red blood cells, they can stick to vessel walls, blocking blood supply to vital organs. This may cause liver damage or kidney failure. Malaria can also cause severe anemia, metabolic acidosis, and respiratory distress (World Health Organization, 2017b; Idro et al., 2010). Cerebral malaria often results in jaundice, shock, abdominal bleeding, hemoglobinuria, or cerebral thrombosis; and patients can experience seizures, coma, and brain damage. Left untreated, cerebral malaria is fatal; and even with treatment, 15–​20% of children die (most malaria victims are under age 5) (Idro et al., 2010). Obviously, these conditions often undermine individuals’ ability to think, feel, act, and otherwise secure the things on the common lists of what people need to live the kind of minimally good life that, I believe, any reasonable caring person would endorse as part of the minimum standard for justifiable aspiration. The preceding observations should suffice for this book’s purposes. There are some conditions that it is reasonable to deny fall under the right to health (either because it is not clear that they are health conditions or because avoiding them is not important for living the kind of life to which everyone can justifiably aspire). Does everyone have a right to treatment for color-​blindness or deafness? Are these even health conditions? What view one takes on this may depend on how one thinks about health and these conditions. Are health problems disabilities or pathologies that undermine normal functioning relative to a gender-​and age-​sensitive baseline in a way that interferes with reproduction or survival (Boorse, 1975)? Or is poor health more a matter of social judgment—​perhaps a judgment that the condition is likely to contribute to mental or bodily harm or interfere with success in pursuing vital goals (Harris, 2007; Murphy, 2015; Nordenfelt, 1995)? Are color-​blindness and deafness disabilities? Are they harmful? Do they interfere with success in pursuing vital goals? Even if color-​blindness and deafness are health conditions, do they threaten individuals’ ability to live the kind of minimally good lives to which they have a justifiable aspiration? The answers to these questions are controversial. Many deaf people, for instance, view deafness not as a disability but, rather, as an ability that brings with it significant benefits like membership in a community that can improve health. Fortunately, this book need not resolve these debates. It is only important for this book’s purposes that HIV/​AIDS, TB, malaria, and other neglected tropical diseases qualify as health conditions that seriously threaten individuals’

Human Right and Access to Essential Medicines  27 ability to live the kind of minimally good lives to which they have a justifiable aspiration (Dunn et al., 2015). To see how health, and access to essential medicines in particular, is important for people to live minimally good lives, consider how improving health can affect all aspects of a person’s life. Treatment for river blindness, for instance, has helped millions attend school and work and support their families (Amazigo et al., 2006; Carter Center, 2014; Coyne and Berk, 2002. Dunn et al., 2015; Hernando et al., 2016; Onchocerciasis Elimination Program for the Americas, 2020). Vector control programs have helped reclaim 25 million hectares of land, providing food for more than 18 million people (Amazigo et al., 2006; Dunn et al., 2015). Moreover, by reducing morbidity, treatment has not only helped to reduce suffering but also has helped many children stay in school and many adults continue working. Healthy people do not spend as much time seeking medical care and assistance and so can focus on other things that matter to them. And when relatives are well, people do not have to stay home from school or work to care for them (Okeibunor et al., 2011; Benton, 1998; Coyne and Berk, 2001). Moreover, improving mothers’ and children’s health has long-​term consequences for those children’s development and ability to flourish and support their own families (Benton, 1998; Dunn et al., 2015). The human right to health is important for protecting individuals’ ability to live a minimally good life, in part because it generates a right to essential medicines that protect people against diseases like malaria, TB, and HIV/​ AIDS. Recall that this book defined essential medicines as those necessary and important for even the basic minimum of health and life one needs to live a minimally good life. I take it that medicines are necessary for health when one cannot remain healthy without them. I believe doctors solely concerned about their patients’ health and ability to live a minimally good life can best decide whether a medicine is important for a given disease. Still, I  can say some things about what medicines are important even without medical expertise. It seems hard to deny, for instance, that drugs demonstrating clinical efficacy are important if no better treatment is available.38 In any case, people should at least have a right to access whatever medicines for diseases like malaria, TB, and HIV/​AIDS are essential. Human rights–​based laws and advocates have helped extend access to these medicines around the world. The Global Health Impact model suggests that drugs for malaria, TB, and HIV/​AIDS and several NTDs, together, averted the loss of about 27% of the death and disability that these diseases caused in 2015 (Global Health

28  EXTENDING ACCESS TO ESSENTIAL MEDICINES Impact, 2017). Millions survive and flourish who would otherwise suffer and die from lack of access to these medicines, and it is possible to save millions more by extending access further.39 Of course, the human right to health does a lot more for people than just protect their ability to access essential medicines (though that will suffice for this book’s purposes). Subsequent chapters defend the idea that the human right to health can, and often does, protect the health people need to live minimally good lives further. So let me just remind readers here that the right also requires helping people access adequate food, water, sanitation, shelter, and other health services (and these things obviously do a lot for people suffering from diseases like malaria, TB, and HIV/​AIDS too). Because the human right to health requires so much, it may require vast resources to fulfill.40 New technologies, prescription medicines, and doctors’ visits often cost a lot. As people age, they typically require more and more healthcare. It can cost a lot to help those with the most severe disabilities get as close as they can to the threshold for living minimally good lives, and attempting to help everyone may drain public health systems. For some conditions, human rights’ duty bearers might spend an incredible amount for small gains. Perhaps they cannot afford to ensure individuals’ ability to live minimally good lives at all ages. As Charles Fried put it, The fact is that if we were to recognize a right to the satisfaction of our most unfortunate fellow citizens’ medical needs, the drain on resources available to satisfy other kind of needs (education, defense, housing) and also to satisfy all the residual wants of healthy, secure, educated persons would be staggering. Indeed there is literally no end to the drain on resources that medicine might represent if we consider the various ways of prolonging life and restoring function which might be developed should we choose. (1978, 121–​122)

We might have to devote almost all our resources to helping sick people and fail to invest in anything else that matters. For this reason, many reject the human right to health. The human right to health should not generate impossible commitments or set excessively high standards. It should not demand so much that it undermines itself. The right’s duty bearers may do worse to pursue perfection too far. Furthermore, they should pay attention to morally relevant costs, and the probability of benefits, in deciding how to fulfill rights in practice. Duty

Human Right and Access to Essential Medicines  29 bearers must give “proper weight to all other considerations, including other moral rights and worthwhile goals.”41 At the same time, the right’s duty bearers should help people live minimally good lives whenever doing so does not require sacrificing anything as important.42 They must help people access existing medicines and do new R&D on drugs for neglected diseases to ensure that many people can live minimally good lives, for instance.43 Partly, this is because the cost of protecting health is itself a function of how social institutions work. Adequately protecting everyone’s human right to health may require changing intellectual property regimes or other institutions governing essential medicines’ R&D. At least, the human right to health generates such claims when duty bearers can fulfill them without violating other moral requirements. The Appendix considers the right’s nature, demands, and limits further. Moreover, it argues that the human right to health can ground rights to public goods (like herd immunity) against some philosophical worries (also see Tasioulas and Vayena, 2016).44

1.4.  Defending the Account: Alternative Bases for the Human Right to Health My account of the human right to health is a capability theory in an important sense, but it is compatible with many views about what people owe to others. To sidestep some debates about paternalism, I just argued that the human right protects everyone’s ability to live minimally good lives.45 Still, the right may require ensuring that people actually live such lives. I  believe, for instance, that societies should sometimes provide essential healthcare for those who can secure it themselves but who will not otherwise do so.46 I am not claiming that anyone should force people to accept medical treatments that they reject, but I believe duty bearers should sometimes help people actually secure treatments that they do not reject. That is, I  think duty bearers should sometimes encourage people to make good decisions they would not make on their own (e.g., by changing the way they present options) (Dworkin, 2017). Some people do not choose to preserve their health because they make bad choices (though they have decent options). Nevertheless, I  think this should not cause too much deprivation. Such people should still live minimally good lives (at least unless they want to live poorly or die). Capability theories reject this conclusion (Ruger, 2016). So,

30  EXTENDING ACCESS TO ESSENTIAL MEDICINES my account has an advantage over capability theories in providing a ground for the human right to health if the right should help people live minimally good lives (not just protect their ability to do so). Moreover, if fulfilling the human right to health ever requires ensuring that people live minimally good lives, my account plausibly protects much more than individuals’ basic capacities (Nussbaum, 2006; Ruger, 2016; Venkatapuram, 2011). On traditional capability theories, people can have everything that rights protect without actually having anything valuable besides potential choice (they must only be able to secure other valuable things) (Dorsey, 2012). People need much more to live a minimally good life than the basic capacities on Nussbaum’s list (though, again, I doubt everything on her list is strictly necessary to live such a life): life, health, bodily integrity, sensation, imagination, thought, emotions, practical reason, affiliation, connection with other species, play, and control over one’s environment (Nussbaum, 2000a, 2000b, 2006). People need freedom from insufferable pain, for instance, for a minimally good life in the justified aspiration sense even if they do not want freedom from such pain (Arneson, 1999).47 People cannot just be able to avoid or alleviate the pain; sometimes people need medicine to relieve pain (Cohen, 1989, 1994). Moreover, when, no matter what others do, people do not secure such relief on their own, others often have to provide it for them. Again, the claim is not that it is permissible to force people to live minimally good lives when they prefer to suffer or die. Here I am just arguing that, to live a minimally good life, people must also do some things and have resources (as well as capabilities). People need to function well and have some resources even if they choose to sacrifice the things they have and do to secure other things (e.g., if they choose to go on a prolonged hunger strike or commit suicide to bring about political change). People may reasonably affirm great sacrifice but there are serious reasons to doubt that everyone can live a minimally good life if they must sacrifice so much. More generally, the minimally good life account of the human right to health is plausibly broader than needs, welfare, autonomy, or opportunity accounts (Griffin, 2006, 2008; Talbott, 2010; Nickel, 2007; Tasioulas, 2013). The minimally good life requires protecting all these things (and these protections do not just safeguard any single one of them, e.g., people’s basic interests). Even if the human right to health has other grounds, the minimally good life does not serve only them.48 So, I reject narrower (e.g., agency, equal opportunity, and interest) accounts (Daniels, 2008; Griffin, 2006, 2008; Eberl et al., 2011; Jones, 1983; DeGrazia, 1991; Semplici, 2011).

Human Right and Access to Essential Medicines  31 Consider, for instance, the minimally good life account’s advantages over James Griffin’s normative agency account (2006, 2008). Griffin maintains that human rights protect dignity or, more precisely, normative agency. This agency requires autonomy or the ability to form a conception of the good life, liberty, or freedom from interference and constraint in pursuing this life, and some minimum provision of things like education. On Griffin’s account, human rights are universal (because they are held simply in virtue of normative agency), but they require different protection in different circumstances. I reject Griffin’s account for a few reasons. First, human rights should do much more than protect normative agency (Tasioulas, 2013). Pain that does not undermine agency can still undermine an individual’s ability to live a minimally good life, for instance; and the human right to health plausibly grounds a right to pain medicine (Liao, 2015). Moreover, all people have a human right to health even if they lack liberty and autonomy or agency. This includes infants, very young children, and the severely mentally disabled (Hassoun, 2012c, 2013a). This book’s account also has some advantages over Norman Daniels’ narrower ground for a right to health in Just Health (2008). Daniels says people have a right to health that emerges from his theory of justice, though he does not defend a universal “human” right. He ties his account “to the terms of fair cooperation that are justifiable within a society of free and equal individuals” (Daniels, 2008, 316–​317). Daniels grounds his theory of justice in John Rawls’ fair equality of opportunity principle. On this principle, everyone should have basic economic and educational opportunities. Differences in outcome should reflect differences in talent and effort (Rawls, 2001, 44). Daniels defines basic health needs as what people require for normal species functioning and fair opportunity. He says “we have an obligation to ensure fair equality of opportunity, [so] we have an obligation to promote normal functioning, and our moral right to health and healthcare is the corollary of those obligations” (Daniels, 2008, 316). Moreover, he says that what counts as individuals’ fair share of the normal opportunity range depends on the resources available in one’s society.49 Daniels says the right never requires giving priority to enhancing individuals’ basic capacities beyond normal functioning. We should reject Daniels’ account, however, because health is important and merits the protection human rights provide, for many other reasons beyond normal species functioning and equal opportunity (Daniels, 1985).50 Poor health can undermine individuals’ basic capacities, autonomy, welfare,

32  EXTENDING ACCESS TO ESSENTIAL MEDICINES and even dignity. Moreover, I believe it unconscionable to define fair shares by reference to what opportunities are generally available in individuals’ societies (Segall, 2007).51 No one should deny some treatment for devastating diseases like malaria, TB, and HIV/​AIDS even if their compatriots often suffer and die young from these diseases (and, so, they do not limit people’s opportunities more than normal). Moreover, I believe justice requires providing for the “naturally” disabled who cannot otherwise secure a greater share of opportunity when nothing more significant will be lost in doing so (for discussion of the right’s limits, see the Appendix). This is not just a matter of charity or beneficence. Finally, enhancements that help people live minimally good lives deserve priority. My account recognizes that people need technologies such as vaccines to fight infections like measles even beyond the species norm.52 At the same time, it is modest. It does not suggest people have a right to, or even that they may secure, enhancements they do not need for minimally good lives.

1.5. Conclusion This chapter defended the human right to health as articulated in international law and argued that the right generates derivative rights to essential medicines. It suggested that the right protects individuals’ ability to live minimally good lives. Everyone needs a basic minimum of health to live such lives, and grounding the human right to health in this way has some advantages over the alternatives. The right generates derivative rights to essential medicines. Rights may not demand so much that, for instance, fulfilling them requires sacrificing something more significant (again, see the Appendix where I discuss feasibility). Still, people should not have to suffer and die young because they lack access to these medicines and other health-​ supporting goods (they have rights to these things). Understanding why people have a right to health may guide efforts and shape policies to fulfill everyone’s claims. It may help to summarize the chapter’s argument explicitly as follows. It defended (a) the justified aspiration sense of what it is to have a minimally good life and argued that (b) the right to health—​that includes a right to access medicines essential for health—​is an important tool for protecting everyone’s ability to have such a life. So, (c) the human right to health that includes a right to access essential medicines is justified.53 At least this

Human Right and Access to Essential Medicines  33 account has some advantages over the main competitors. The next chapter defends the human right to health further, but it does not address all skeptics of positive rights (or even recent skeptics about the right to health—​though, for some relevant discussion, see the Appendix). The chapter argued that (a) the justified aspiration sense of what it is to have a minimally good life has some advantages over the main alternative conception of what a minimally good life requires. Recall that, on Liao’s alternative account, people should have the things “human beings qua human beings need in order to . . . pursue . . . basic activities” that affect their lives as a whole (Cruft, 2015, 103). This account cannot accommodate people’s individual (idiosyncratic) needs for healthcare or other things, that allow them to live minimally good lives. Moreover, it is not enough that the account protects individuals’ pursuit of the things necessary for living a minimally good life; normally, people should not find it too difficult to secure the things they need to do so. Finally, to live minimally good lives, people need much more than what will allow them to pursue basic activities that affect their whole lives; it matters, for instance, what individuals can be as well as what they can do. The chapter argued that (b) the right to health—​that includes a right to access medicines essential for health or life—​is an important tool for protecting persons’ ability to live minimally good lives because the right protects at least the basic minimum of the health required to live a minimally good life. The chapter made this case as follows: (1) the human right to health protects individuals’ ability to secure a basic minimum of health and (2) a basic minimum of health is a central component of, and often necessary for people to live, minimally good lives. Recall how section 2 defended (1) by suggesting that the protections the legal human right includes help specify what obligation bearers must do to protect this basic minimum. Article 12 of the ICESCR says, for instance, that the right requires trying to reduce stillbirth and infant mortality rates; promoting healthy childhood development; improving environmental and industrial hygiene; preventing, treating, and controlling endemic, epidemic, occupational, and other diseases; and helping all access medical services in times of illness (United Nations Office of the High Commissioner for Human Rights, 1966). Moreover, recall that the UN’s CESCR, charged with interpreting human rights, specifies that the right to health generates rights to the social determinants of health (e.g., safe water, food, and a sanitary and healthy environment). At a minimum, it says, states must ensure that people have equal access to health services; adequate food,

34  EXTENDING ACCESS TO ESSENTIAL MEDICINES water, shelter, and sanitation; and essential medicines. To defend (2)  the chapter, first, claimed that considering what someone about whom one knows little—​say, a newborn infant—​will need for a life at the lowest level of flourishing gives reasonable and caring people a reason to endorse many of the things on the common lists of what people need to live such lives. Second, it argued that poor health can undermine all of those things. Further work is necessary to defend the justifiable aspiration standard (e.g., defending the conception of reasonableness and caring at issue in setting the standard and specifying, more precisely, what a basic minimum of health requires to show why it is necessary and/​or important for the kind of minimally good life the human right to health protects). I discuss these issues elsewhere (Hassoun, 2018b). Nevertheless, this chapter has made significant progress in defending the right. The next chapter responds to a worry that those who justify human rights in an entirely different way might embrace (though it does not address those who are skeptical of all positive rights—​see the Appendix for some further discussion). Recently, philosophers have moved away from foundational theories (grounded, e.g., in interests or autonomy) and toward functionalist theories (Rawls, 1999; Raz, 2007; Beitz, 2011; Beitz and Goodin, 2009). These conceptions define human rights in functional terms. So, for instance, one might specify that human rights function as minimal standards that states must meet to retain sovereignty over their populations (Raz, 2007). Consider a key objection to foundational theories—​that may have helped motivate the turn toward functionalist conceptions: people can violate others’ human rights even if they can secure autonomy or fulfill their interests. Some argue that even slaves can live minimally good lives (Buchanan, 2014). This chapter’s account of the minimally good life avoids this problem. Slavery, for example, undermines individuals’ ability to live the kind of minimally good lives at issue. The right’s obligation bearers must adequately protect people against such dignity-​undermining discrimination. Moreover, the human right to health may do much more than protect individuals’ ability to live a minimally good life—​the right might have other grounds (e.g., equality) or functions. Still, to arbitrate between different accounts, the next chapter will consider the human right to health’s functions.54 It rejects the main functionalist proposal for the human right to health in the literature that may undermine arguments for the right. More precisely, the next chapter suggests the human right to health is defensible even if it does not help ration scarce resources. It

Human Right and Access to Essential Medicines  35 argues that the right plays other important roles. The chapter argues that the human right to health can foster hopes that should give rise to a virtue I call creative resolve—​a virtue that gives duty bearers reason to try hard to avoid having to ration scarce resources. This lays the groundwork for subsequent chapters’ attempt to provide a creative new proposal for helping people access essential medicines, in particular. However, the book’s pluralistic ground for the human right to health may also resolve some tension between functionalist and foundational accounts as well as between different foundational (will and interest) theories. It incorporates both a foundational and a functionalist element, and researchers do not have to arbitrate between them.

2 The Human Right to Health and the Virtue of Creative Resolve In a human rights framework, humans are “agents of change who can—​ given the opportunity—​ think, assess, evaluate, resolve, inspire, agitate, and, through these means, reshape the world.” Yamin (2016, 226, citing Sen, 2000, 7) Human rights tools and frameworks are useful insofar as they meaningfully regulate power in ways that advance human dignity and equality—​righting the egregious imbalances of economic as well as political power, whether those imbalances occur across borders or within them. Yamin (2016, 228)

2.1. Introduction Like tuberculosis (TB) and HIV/​AIDS, malaria and other neglected tropical diseases blight millions of lives every year.1 Because they have a human right to health, everyone has a right to access essential medicines for such diseases. The human right to health plays an important role in national and international affairs because it inspires human rights advocates, claimants, and duty bearers to try hard to satisfy its claims. That is, the right should, and often does, give rise to a new virtue I call creative resolve. Hope supports this resolve, which embodies a fundamental commitment to finding creative ways to overcome apparent tragic dilemmas. To have this virtue, people must try to overcome these obstacles and actually overcome them where possible and permissible. The right gives human rights advocates, duty bearers, and claimants a response to apparent tragedy in motivating them to find creative ways to fulfill everyone’s basic health needs.2

Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

The Virtue of Creative Resolve  37 I offer two arguments for the conclusion that the human right to health should give rise to creative resolve, and the second argument establishes that the right often does give rise to the virtue. First, I argue, those who are obligated to fulfill the right should have the virtue because they should fulfill the right. Second, I argue that the right should give rise to creative resolve because this resolve often helps beneficiaries, advocates, and duty bearers fulfill the right. The instrumental case for the virtue grounds it, at least in part, in the fact that it is important to protect each individual’s ability to live a minimally good life. This allows the argument to avoid virtue fetishism. Duty bearers should not only help fulfill the right to secure virtue; they must do so because that helps people live, at least minimally, good lives.3 This chapter’s account of the right’s role provides a reply to some recent challenges to the human right to health’s existence.4 Although the chapter does not address skeptics about positive rights, in general, it argues against those who reject the human right to health by taking up a recent move to consider the role rights must play in international affairs (again, the Appendix addresses some additional concerns).5 Some suggest, for instance, that there is no moral human right to health because such a right cannot help policymakers ration scarce health resources.6 These authors point out that the human right to health does not provide enough guidance for setting healthcare priorities (Daniels, 2008, Ch. 12). One might raise similar worries about the legal human right to health (henceforth, simply, the human right to health). I will explain why I do not think this objection works. I will argue that the right is useful, in part, because it encourages duty bearers to question the claim that they must ration and helps them find better ways of fulfilling everyone’s rights. I suppose throughout that rationing is a decision to limit some people’s access to the health-​related resources they need to live minimally good lives to help others. I reserve the term priority setting for rational, or efficient, resource use decisions that do not necessarily require limiting anyone’s access to the things they need to live minimally good lives.7 So, I will suggest the right is important, in part, because it gives duty bearers reason to avoid rationing (depriving some of the things they need to live minimally good lives to help others) where they can without sacrificing anything else as significant. Although I will also argue that the right can help with rationing when it is necessary, it can reduce the need to ration by helping policymakers find ways of using resources more efficiently or securing more resources. Moreover, I argue that the right can help claimants, advocates, and beneficiaries overcome apparent tragedy in other ways.

38  EXTENDING ACCESS TO ESSENTIAL MEDICINES Furthermore, in making the case that the human right to health should give rise to creative resolve, I am not defending the standard view that the human right to health is aspirational (Rumbold et  al., 2017). I  think the virtue of creative resolve often helps beneficiaries, advocates, and duty bearers go beyond just promoting core obligations, coming up with national plans of action, and progressively realizing the right. It requires them to realize the right insofar as possible and otherwise permissible—​not just make progress toward doing so (Rumbold et al., 2017; Ottersena and Norheim, 2014). As Amartya Sen suggests, “in seeing health as a human right, there is a call to action now to advance people’s health in the same way that the 18th-​century activists fought for freedom and liberty” (2008, quotation in page 2010).8 On my account, the human right to health is not aspirational; it is inspirational. Many draw on the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in arguing that the human right to health is purely aspirational (Rumbold et al., 2017; Nickel, 2007).9 Recall that Article 2(1) of the ICESCR says that states must “take steps” to “progressively” realize the right, so many suggest that the ICESCR just endorses an aspirational account of social and economic rights on which they are mere goals (United Nations Office of the High Commissioner for Human Rights, Article 2.1; Rumbold et al., 2017). Here is my alternative, inspirational, interpretation of the ICESCR’s Article 2(1) and the general comments: As Chapter 1 points out, Article 2(1) of the ICESCR pushes toward expanding care rather than constraining it. After all, the article says that states cannot just use some of their resources to promote health; they must use “the maximum” available (United Nations Office of the High Commissioner for Human Rights, 1966).10 Moreover, the general comments clarify that the phrase [in Article 2(1)] “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. (United Nations Committee on Economic, Social and Cultural Rights, 1990) (see Chapter 1 for discussion)

They also specify that the “international assistance and co-​operation” required are quite extensive (see Chapter  1 for details) (United Nations

The Virtue of Creative Resolve  39 Office of the High Commissioner for Human Rights, 1966; United Nations Committee on Economic, Social and Cultural Rights, 1990). The rest of this chapter proceeds as follows. The next section explains creative resolve and the vices that can undermine it. It clarifies the virtue’s nature and limits by discussing its relationship to hopes that support, and partly constitute, it. Section 3 argues that where the right exists, the virtue should as well; creative resolve follows from the right’s obligations. Section 4 argues that the human right to health should give rise to creative resolve because the virtue can help human rights advocates, beneficiaries, and duty bearers fulfill the right.

2.2.  The Human Right to Health and Creative Resolve In a slogan, creative resolve requires human rights advocates, beneficiaries, and duty bearers to commit, imagine, and act to fulfill significant moral duties; but before explaining the virtue and the vices that can undermine it in more detail, consider how creative resolve helped one human rights organization fight drug-​resistant TB when no one thought it possible in a reasonably cost-​effective way. Because Partners in Health (PIH) was committed to promoting everyone’s human right to health, it refused to accept the “conventional wisdom” that helping people with drug-​resistant TB was too costly (Partners in Health, 2015b). PIH then came up with creative new ways to treat people even in some very challenging circumstances and implemented projects that demonstrated that it was possible to achieve good treatment outcomes around the world (Partners in Health, 2015a, 2015b, 2017; Farmer, 2008; Nicholson et al., 2016). Funding for TB treatment increased significantly. Because it demonstrated creative resolve, PIH helped expand global access to care (Frick, 2015). But what does the virtue require exactly?

2.2.1. Creative Resolve Creative resolve strongly disposes people to think creatively about how to overcome obstacles to fulfilling significant moral requirements and to attempt to fulfill them where possible and permissible.11 More formally, to have creative resolve people must (1) question evidence that we cannot meet significant moral duties, (2) seek out creative ways to fulfill these duties, and

40  EXTENDING ACCESS TO ESSENTIAL MEDICINES (3) act to fulfill them.12 At least, to have the virtue, we should have the disposition to fulfill each condition where necessary and insofar as possible and permissible.13 To fulfill the first condition for creative resolve, people must question evidence that we cannot meet significant moral duties. We must consider its source, reliability, and purported consequences. We must recognize, and attempt to counteract, impediments to fairly evaluating the evidence—​to see and avoid standard biases in decision-​making. We must take into account the burdens of judgment that arise in addressing the justified claims that others make on us. To fulfill the second condition for the virtue, people must seek out creative ways to fulfill significant moral duties. We must consider all the options on the table and exercise moral imagination to come up with new ones. This requires resourcefulness, inspiration, innovation, and originality; our ideas cannot be trite, prosaic, uninspired, unexceptional, or uninteresting. Often, to have creative resolve, we must break free of custom and convention; we must be bold. The final condition for creative resolve requires acting to fulfill significant moral duties. We cannot just consider ways to overcome barriers to fulfilling these duties; we must actively try to overcome them. This condition gives creative resolve its distinctive moral character akin to commitment, determination, and perhaps even dedication. Creative resolve requires grit, will, and resoluteness. We must persist in trying to fulfill significant moral requirements even when facing uncertainty. We must persevere in fulfilling these requirements. Again, people must only fulfill each condition for creative resolve where necessary and insofar as (nomologically) possible and permissible. We must only question evidence that we cannot meet significant moral duties, search for ways to fulfill these duties, and try to do so when we lack sufficient evidence that we cannot do so in an acceptable way.14 Many of those who are personally (as opposed to politically) conservative lack creative resolve. As Michael Okeshott explains, conservatives “prefer the familiar to the unknown . . . the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the superabundant, the convenient to the perfect, present laughter to utopian bliss” (Oakeshott, 1962, 78). Rather than striving for the best results, in any domain, conservatives embrace the status quo. They often do this because they think existing structures and institutions have proven themselves and do not

The Virtue of Creative Resolve  41 value creative thinking or striving to make things better (Salvi et al., 2016). Still, duty bearers must try to reform these practices where necessary to fulfill significant moral claims unless they lack an acceptable way to do so. Those who have creative resolve are (personally as opposed to politically) radical realists. Consider how Johnathan Mann famously galvanized the global movement to address the HIV/​AIDS epidemic by arguing that work on human rights and public health connect, intimately. “Mann argued that AIDS was a social disease, flourishing in conditions of poverty, oppression, urban migration, gender inequality, and violence . . . [and] . . . advanced a new way of understanding AIDS and AIDS policies based on a human rights framework” (Fee and Parry, 2008). As he described those committed to promoting health and human rights, they have creative resolve: People engaged in public health, like those concerned with human rights are, by definition, uneasy, uncomfortable, dissatisfied with the state of the world. We keep identifying things we think we should change. . . . We do so by seeking to change the “givens” of personal and social life, the inherited so-​called “natural” order of things, the assumed “inevitable.” Thus we continually call the status quo into question—​and we have learned, slowly over time, that calling the larger societal status quo into question is the true task (Mann, 1997, 119).

Mann offered this description, however, in arguing that for work on human rights to promote health it needs to draw “upon a more sophisticated understanding of health, health status and health realities” (Mann, 1997, 118).15 Similarly, Alicia Yamin argues that human rights require challenging apathy and using science to question “deeply held assumptions” to transform the status quo (Yamin, 2016, 86). Still, those who have creative resolve do not radically change the status quo without paying attention to the facts on the ground and safeguarding basic rights and other things that matter. Creative resolve is not blind faith.16

2.2.2.  Hope and Creative Resolve Since people who believe change impossible, or undesirable, often lack creative resolve, the virtue often requires hope.17 Hope at least requires desiring an end one believes possible but not certain (Martin, 2013, 4; Bovens, 1999;

42  EXTENDING ACCESS TO ESSENTIAL MEDICINES Pettit, 2004).18 Many do not think people ever have to try to do things that seem impossible and endorse an epistemic version of the ought-​implies-​ can principle (Martin, 2009). Moreover, those who do not care about moral imperatives rarely try hard to fulfill them.19 Still, when people desire an end that actually provides a significant moral reason for action and can secure the end for all they know, the virtue demands they try hard to do so (McGeer, 2004, 2008; Walker, 2006, Ch. 2).20 Again, creative resolve embodies a fundamental commitment to finding creative ways to overcome apparent tragic dilemmas. Creative resolve goes beyond “imaginatively exploring what we can and cannot do in the world” to actually trying to achieve our hoped for end (McGeer, 2004, 104). Even if we lack the most mundane hopes, we must try hard to fulfill significant moral claims when necessary, possible, and otherwise permissible. In some cases, creative resolve embodies radical hope; even when people do not know how to fulfill all potentially competing moral claims, the virtue requires we try to find ways to do so (Lear, 2008). As Kant put it, It does not matter how many doubts may be raised against my hopes from history, which, if they were proved, could move me to desist from a task so apparently futile; as long as these doubts cannot be made quite certain I cannot exchange the duty for the rule of prudence not to attempt the impracticable (Kant, 1793/​1996, 309).

We may need “moral improvisation” to come up with acceptable ways to fulfill significant moral duties (Herman, 2007, Ch. 12).21

2.3.  The First Argument: The Human Right to Health’s Obligations Ground Creative Resolve Consider why the human right to health should give rise to creative resolve—​ why duty bearers should try hard to fulfill the right’s claims. If a human right to health exists, duty bearers should fulfill the claims it generates. So they should try hard to do so. Duty bearers should not fail to fulfill the right’s claims even when tragedy seems unavoidable. The imperative to try hard to fulfill the human right to health’s claims follows from a more general observation, namely that, when they lack sufficient evidence that they cannot fulfill a significant moral claim, duty bearers should resolve to exercise their

The Virtue of Creative Resolve  43 moral imagination in doing so. Even facing apparent tragedy, they should not fail to fulfill a significant moral claim on the assumption that they cannot overcome it. Here is another way to put the point:  human rights are claim rights; they consist partly in important correlative duties, duties the rights holder is entitled to claim. These high-​priority directed duties require creative resolve. That is, those who have a duty to fulfill the right have a duty to try hard to do so (where necessary and insofar as possible and permissible). If the human right to health exists, it generates genuine claims, rarely undercut or overridden. Since the human right to health’s grounds are so important, duty bearers have reason to try hard to fulfill the right.22 Duty bearers should resolve to exercise their moral imaginations in trying to fulfill rights that protect individuals’ ability to live minimally good lives when they lack sufficient evidence that they cannot, or should not, do so. Duty bearers should try hard to fulfill significant moral claims given that people often fail morally because they do not question their assumptions. Significant psychological evidence suggests that people generally fail to consider enough alternatives in making decisions (Bearden et  al., 2005). Sometimes we lack moral imagination because we view feasibility too narrowly—​assuming tight time frames and financial constraints (Brennan and Pettit, 2004). Some people are pessimistic about human nature, politics, or political philosophy (Goodin, 1995, 40). Moreover, when we imagine ourselves succeeding in tasks, the evidence suggests that we succeed more often—​perhaps because fantasies, “imaginative projections,” influence our agency (Martin, 2013, 86). Hope can energize us to set goals and act on plans to achieve them (Snyder, 1995, 2000; Braithwaite, 2004). For these reasons, duty bearers should often look for ways to overcome apparent tragic dilemmas. The human right to health might not need to give rise to the virtue in a different world where it is easy to fulfill everyone’s rights. Duty bearers might not need to cultivate a disposition to fulfill the right, though they still need to act as those with creative resolve would where necessary. Still, in this world, those responsible for protecting, respecting, and fulfilling the right should cultivate the disposition to do so.23 Given that so many people lack even basic healthcare and the absence of functioning health systems in many countries, it may be difficult to find ways to fulfill individuals’ rights to health without sacrificing something as important. If it is impossible for someone to cultivate the virtue or if doing so would have devastating consequences, I can also

44  EXTENDING ACCESS TO ESSENTIAL MEDICINES allow that that person should not do so (Conly, 2016). Still, insofar as possible and permissible, duty bearers should try to fulfill individuals’ human rights to health.24 That fulfilling other human rights (and significant duties) requires creative resolve poses no problem for the current argument; it enhances its importance.25 If duty bearers need creative resolve to fulfill these rights, that is because their grounds or (other) functions are so important that they generate binding claims; duty bearers must try hard to fulfill human rights because they are not mere goals. Other human rights may even play an important role in international affairs precisely because they should, and often do, give rise to this virtue. That said, where moral claims’ implications are indeterminate, actors’ effects remote, their actions’ significance ambiguous, and countervailing considerations prominent, the vices creative resolve counters proliferate. Creative resolve is especially important for realizing the human right to health. Some will question creative resolve’s demandingness. It sets high evidentiary standards: even facing apparent tragedy, duty bearers should not compromise unless forced to do so. Moreover, they should think creatively and try to overcome obstacles to fulfilling the right’s claims, barring sufficient evidence that they cannot do so. One might argue that this standard is unrealistic. Policymakers rarely have such certain evidence when they make healthcare policy.26 I believe creative resolve makes appropriate demands. If policymakers can secure the requisite evidence, they should normally do so. No one should make healthcare policy that results in people suffering or dying without sufficient evidence that tragedy is unavoidable. Doing so is like driving a car off a cliff rather than into oncoming traffic when an accident seems inevitable. Unless policymakers lack better options, they cannot make such policies. Recall, however, that even creative resolve has its (internal) limits: when trying to fulfill the human right to health’s claims (or actually fulfilling them) exceeds some moral cost threshold, policymakers (and other duty bearers) need not do so (Arneson, 1999). Duty bearers should stop searching for ways to fulfill these rights’ claims when the search’s moral cost outweighs the benefits. They must only fulfill the conditions for creative resolve where necessary and insofar as possible and permissible. They must fulfill the right’s demands unless something more significant is at stake. Duty bearers might, normally, determine when they need not pay the moral costs by considering competing human rights–​ based claims as

The Virtue of Creative Resolve  45 opposed to considering benefits and harms in general. By restricting their view to competing rights-​based claims, duty bearers recognize the fact that rights have a special role and status (they are “high-​priority norms”) (Nickel, 2007).27 The next section argues that deep moral, affective, and intellectual understanding of the human right to health and its moral and legal ground in the minimally good, or dignified, life may help people find ways of fulfilling the right even in the face of apparent tragedy.

2.4.  The Second Argument: The Human Right to Health in Practice What does the human right to health that fosters creative resolve do for people? This section argues that the human right to health does a lot to guide health policy precisely because it often fosters creative resolve. What follows argues, for instance, that the right provides reason to question the claim that policymakers must ration and can help human rights claimants, advocates, and duty bearers come up with, and implement, creative new ways to improve health. Those who commit to fulfilling the right often try hard to overcome barriers to doing so. Making this case supports the idea that the right should give rise to this virtue.28 Reflect on the claim that the human right to health must help allocate scarce health resources.29 Some argue that the human right to health cannot support the health systems that they think everyone needs. Such health systems—​like England’s National Health Service and Canada’s Medicare—​aim to regulate health resources’ distribution according to fair rules that take into account health technologies’ costs and benefits given the available budget for healthcare. Critics argue that the human right to health does not help policymakers decide which medical services are most effective or even tell them what health-​promoting medicines to rule out (Sreenivasan, 2012a, 248). Moreover, they argue that, since health has social determinants, policymakers need to know how to allocate resources between the health sector and other sectors. In deciding what healthcare budget to have, policymakers have to weigh and balance entitlements to different things (including health). Again, critics suggest, the human right to health does not provide the requisite guidance. Further, if poor countries require international assistance to secure adequate resources to protect health, policymakers need to know what global justice requires to allocate resources between states. A human right to health, critics

46  EXTENDING ACCESS TO ESSENTIAL MEDICINES charge, can provide no more help here than in any other allocation decision. Perhaps a human right to health would not have to help policymakers decide how to allocate scarce resources if justice did not require rationing. Policymakers might just conclude that people have rights to the most effective interventions for their conditions (Sreenivasan, 2012a, 247). However, critics believe justice requires rationing; they believe policymakers must limit individuals’ access even to what they need for health and life simply due to the costs of providing care (Sreenivasan, 2012b). Critics assume that if justice requires rationing, there is no human right to health that protects each persons’ ability to secure the health care he or she needs.30 Consider the best argument for rationing in the literature.31 There are two ways to allocate scarce resources within a country’s health system (Sreenivasan, 2012b, 145–​6):  one that presupposes willingness to ration and another that looks at what people need and spends resources to meet these needs until they run out. Some argue that resources will run out because growth in healthcare technology costs exceeds gross domestic product (GDP) growth at least in Organisation for Economic Co-​operation and Development (OECD) countries over the past few decades (Sreenivasan, 2012b). So, if policymakers employ the second approach, these critics conclude that they will leave some needs unmet and distribute healthcare in a way that does not line up with any plausible principles of justice (Sreenivasan, 2012b). Human rights advocates should question this argument for rationing and try to come up with, and implement, better ways of fulfilling everyone’s human right to health for this reason:  rationing requires limiting some people’s access to the health-​related resources they need (Hassoun, 2014c). That is, if policymakers ration, they do not just decide to use resources effectively to help people; they choose to let some people suffer and die and direct resources toward helping others. Policymakers should ration if that proves necessary but need good evidence to conclude that justice requires it (Sreenivasan, 2012a, 247).32 They need to make sure they must ration, come up with creative ways to fulfill everyone’s basic health needs, and do so where possible and permissible. Sometimes it is impossible to help everyone, but to respect basic rights and the people who have them, policymakers have to make sure they cannot overcome such a tragic choice. So how does this argument for rationing fare? The most recent data do not suggest that expenditure is rising faster than GDP in OECD countries (Figure 2.1). Moreover, the proportion of GDP that countries spend on

The Virtue of Creative Resolve  47 6%

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Figure 2.1  Healthcare Spending and Economic Growth Rise Together: OECD 2003–​2016

healthcare does not rise in strict proportion to income. Many factors influence healthcare costs—​from demographic structure to disease prevalence and health system type. As some advocates of rationing acknowledge, many developed countries spend a much smaller proportion of GDP on healthcare than the United States. Greater spending past a certain point is not clearly effective in promoting key health outcomes. Consider, for instance, life expectancy versus spending (Figure 2.2). So developing countries may prefer to take a different health system development path than the US. They may not even need to spend as much as many other high-​expenditure countries like Norway or Switzerland to secure similar health outcomes (South Korea and Greece do just as well and spend less than half as much). Many rich countries can also use resources more efficiently, and some may find ways to expand resources for healthcare significantly by changing tax, trade, or other policies. Even if rationing is ultimately necessary, the human right to health’s critics must buttress the argument for rationing significantly to make this case.33 I will not consider the evidence for (or against) rationing further here because my point is only that human rights claimants, advocates, and duty bearers cannot take the evidence that they must ration at face value.34 It may be possible for human rights claimants, advocates, or duty bearers to come

48  EXTENDING ACCESS TO ESSENTIAL MEDICINES 85

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up with, and to implement, different policies: they may, for example, (1) use resources more efficiently or (2)  expand the resources available to fulfill rights, without sacrificing something more important. Let me make each of these points in turn. Duty bearers can often reduce healthcare and technology costs, in part, by investing in preventative medicine and other social determinants of health (Marmot, 2004, 2015). They can collect and utilize health systems data to better prevent and treat health problems as they arise; help with care coordination (across different providers and kinds of services—​from mental and physical health to social services); better engage and support patients, clinicians, and caregivers; and so forth (Sundhed, 2018; Sinha et al., 2014; Bleijenberg et al., 2013; Klein et al., 2016). Many also propose reorienting pharmaceutical R&D toward more impactful innovation. It is possible to complement the current patent system with one that rewards companies for new R&D based on their investments’ global health impact, for instance. This may encourage companies to lower their prices significantly (Hollis and Pogge, 2008; Hubbard and Love, 2004). In many cases, the problem is

The Virtue of Creative Resolve  49 the lack not so much of good options but of good will, and creative ways of incentivizing positive change can help fulfill human rights. Moreover, duty bearers can often expand the budget for healthcare in morally acceptable ways (Wolff, 2012a, 2012b).35 They should not suppose that they must ration healthcare given a set budget constraint (Bekemeier et al., 2013). Doing so requires the assumption that they should optimize under that budget constraint. Perhaps duty bearers should expand the budget to meet everyone’s needs instead. The money to expand the budget has to come from somewhere. Still, duty bearers may secure the funds they need to fulfill everyone’s basic rights to health and fulfill other rights (and moral requirements).36 If duty bearers wrongly assume they have to ration healthcare (in any particular instance), they may deny care to people unnecessarily. Here is the crux of my disagreement with critics who argue that we should reject the human right to health because it cannot tell policymakers how to ration scarce health resources (on its own): I do not believe the human right to health has to play this role (though I will argue later in this chapter that it can). Rather, I think the right does something much more important for human rights claimants, advocates, and duty bearers—​it motivates them to try hard to fulfill its claims. In doing so, it gives them reason to question the assertion that policymakers need to ration scarce resources and find ways to overcome apparent tragic choices.37 I  do not believe we should reject the right. My argument is different from similar arguments in the literature (Wolff, 2012b). I  believe human rights advocates, beneficiaries, and duty bearers should question rationing in rich as well as poor countries (Hassoun, 2012a). That said, I do not reject the claim that policymakers must sometimes ration. In fact, I believe human rights advocates, beneficiaries, and duty bearers sometimes have to question the claim that rationing is impermissible (when there is a significant risk that rights will go unfulfilled if policymakers do not ration). Finally, I will argue that the right can help with rationing when it is necessary. Consider, first, how human rights advocates, beneficiaries, and duty bearers might question rationing and try to come up with, and implement, better alternatives in a rich country (just as they might in a poor one). Research suggests that screening for cervical cancer is not cost-​effective (Weinstein, 2010). Partly as a result, treatment guidelines have changed, and service coverage and screening in the United States have declined (Weinstein, 2010).38 Cervical cancer rates will likely increase (Centers for

50  EXTENDING ACCESS TO ESSENTIAL MEDICINES Disease Control and Prevention, 2012). Perhaps insurance companies should cut costs in another way, or increase premiums, to provide the requisite coverage, or policymakers should implement broader structural change within the US health system.39 Here is another example. When Hurricane Katrina hit New Orleans, Memorial Medical Center was caught in the flood. The generators stopped, and a nurse resuscitated a man in intensive care. She was pumping his oxygen bag trying to get him airlifted to a safer location. But, eventually, a doctor turned to the nurse and said “you do know that he needs oxygen . . . we don’t have any oxygen and we can’t get any and you have to let him go” (WNYC Studios, 2016). So the nurse held him in her arms while he died. There were hundreds of people in that hospital, though, many who were simply sitting in the lobby largely unoccupied. So perhaps, with creative resolve, someone could have gotten some of those people to keep pumping the oxygen bag until the helicopters came again (WNYC Studios, 2016).40 At least those with creative resolve might consider how to secure sufficient oxygen to avoid such problems in the future. I believe creative resolve can often help human rights beneficiaries, advocates, and duty bearers better fulfill rights in rich as well as poor countries. I acknowledge that policymakers may often have to ration; in fact, creative resolve gives human rights beneficiaries, advocates, and duty bearers just as much reason to question the refusal to ration when that would result in some people suffering or dying as it gives them reason to question rationing (as that requires some to go without the health-​related resources they need). Moreover, if policymakers do need to ration, the human right to health can help them. The human right to health might help in several ways. First, it can explain why policymakers need to ration—​they should do so because that will help people live minimally good lives. Second, the right can help insure that rationing is done equitably—​without “discrimination, exclusion, and power asymmetries” (Rumbold et al., 2017, 713). Often, health systems fail to provide equal (and equally accessible) care for the marginalized and oppressed. Simple utilitarian maximization of aggregate health benefits does not adequately take into account the ways in which health matters for individuals’ ability to live minimally good lives. Policymakers cannot just decide to help those in the cities rather than those who live in rural areas because doing so is most cost-​effective, for instance.41 Moreover, as Benedict Rumbold and colleagues suggest, in deciding how to allocate scarce health resources, policymakers should engage in an appropriately deliberative

The Virtue of Creative Resolve  51 processes and institutionalize mechanisms for rationing fairly (Rumbold et al., 2017). They must recognize that participation, compromise, and negotiation are important for fulfilling the human right to health fairly (Yamin, 2016). Finally, the right provides an opportunity for redress—​litigation can help ensure that health systems deliver the services the right requires them to provide. Rights holders can influence policymaking and “hold decision makers to account” (Rumbold et al., 2017, 713). This is so even though malpractice suits are rarely the best way to address lapses in care—​human rights claimants, advocates, and duty bearers need to improve health systems but also go beyond health systems to ensure equality and non-​discrimination (Yamin, 2016). The human right to health can sometimes help in rationing precisely because it gives rise to creative resolve. As some advocates of rationing suggest, when policymakers have an “acceptable interpretation of the content of the right to health . . . [they] . . . should reappraise their budgets, considering the state’s obligations under that right” (Rumbold et al., 2017, 713). Moreover, policymakers with creative resolve can consider, and try to address, the larger systemic causes of failures to respect, protect, and fulfill rights. They can design and implement new programs to ensure that people have access to the objects of their rights as well as monitor, evaluate, and remedy failures to protect the right (Yamin, 2016). Duty bearers may need to change many things besides health systems to fulfill rights (e.g., altering education, trade, and immigration policies that have significant health consequences). They may need creative resolve to reduce the need to ration and to make progress in realizing the right’s demands. Duty bearers need a full theory of justice when they face genuine tragedy but should have creative resolve even where they cannot fully surmount tragedy; it can help promote justice.42 Still, the rest of this section argues that the human right to health’s primary role is not to help ration scarce health resources; it gives rise to creative resolve. The right motivates claimants, advocates, and duty bearers to come up with creative ways to overcome obstacles to fulfilling its claims, even absent a complete theory of distributive justice. The right helps claimants, advocates, and duty bearers (1) question evidence that they cannot fulfill its dictates, (2) come up with creative ways of doing so, and (3) actually promote health. First, the human right to health helps human rights claimants, advocates, and duty bearers question evidence that they cannot fulfill its dictates. People rely on the human right to health to criticize immigration and trade policies, international aid conditionality, insufficient scientific R&D on new drugs

52  EXTENDING ACCESS TO ESSENTIAL MEDICINES for the world’s poor, the way companies conduct clinical trials, and so forth (Flory and Kitcher, 2004; Attaran, 1999; Cole, 2009; Edwards et  al., 2012; Myer, 1979; Chapman, 2009).43 Such criticism informs efforts to better protect, respect, and fulfill rights (Médecins Sans Frontières, 2011). Second, when human rights claimants, advocates, and duty bearers commit to fulfilling human rights, they often think creatively about what they need to do. Human rights claims ground proposals for positive change like the Framework Convention on Global Health, a new treaty to promote global health (Gostin et al., 2013), or this book’s Global Health Impact proposal, which is my attempt to create a new human rights indicator that, subsequent chapters will argue, can help set clearer targets, evaluate performance, and fulfill health needs. Finally, when they embrace the human right to health, human rights claimants, advocates, and duty bearers often promote health. Consider how international monitoring bodies, lawyers in national and international courts, and civil society/​political advocacy groups often rely on the right to improve health. They use human rights indicators and soft administrative law to name and shame as well as incentivize governments, international organizations, corporations, and other agents to respect, protect, and fulfill these rights. Human rights advocates also show incredible ingenuity and persistence in combating health crises. Activists empower patients, expand healthcare access via community health workers, increase the market for lower-​cost generic medicines, put new proposals for innovative R&D mechanisms on the table, and create new funding bodies like PEPFAR, the Global Fund, and UNITAID to improve care for many conditions in poor countries (Davis, 2015). Consider a concrete example of how the human right to health, by giving rise to creative resolve, has helped people address systematic political failures that deprive them of access to the healthcare and other services that they need. Alica Yamin (2016) tells the story of a poor, indigenous woman who died in childbirth in Peru because her state did not adequately protect her right to access the care she needed. Yamin refused to believe that addressing the problem was impossible. She then came up with a creative way of resolving it by training local community health advocates and linking them with national human rights institutions. The women used their rights to back their claims to adequate healthcare and services (Yamin, 2016). As states cut budgets for health and target services only needed by minorities, Yamin suggests that the same kind of social action can help people access the objects of their rights in

The Virtue of Creative Resolve  53 rich countries like the United States as well as in developing countries. People in poverty often face what seem to be tragic choices: Should I buy food or contraception? Should I take my daughter to a doctor now knowing that this may prevent me from paying my rent this month or wait and hope that she does not get sicker before I get another paycheck? The human right to health can help human rights beneficiaries, advocates, and duty bearers address the structural injustices that create these problems. People with human rights are not victims; they can make change happen (Yamin, 2015). They are not only patients; they are people who deserve the chance to exercise their agency free from such choices. They are not powerless; they can reorganize their social, economic, and political institutions to secure their rights (Yamin, 2016). Here is another example. The human right to health, in giving rise to creative resolve, has aided some in overcoming apparently impossible barriers to helping many people meet their basic health needs. Since 2000, more than 5 million people secured treatment for HIV/​AIDS in developing countries partly due to a global movement to extend access to essential medicines around the world. Human rights–​based organizations, like South Africa’s Treatment Access Campaign (TAC), protested when pharmaceutical companies resisted attempts to get them to lower prices (Heywood, 2008).44 They simply refused to accept that price reductions were impossible. TAC then came up with, and implemented, innovative programs to educate patients and linking “information about health . . . to rights, empowered marginalized people who began to assume both a public voice and a visibility” to demand access to treatment (Heywood, 2008). First-​line medicines’ cost fell from $12,000 per patient year to approximately $1000/​year (Jewell, 2016). Generic competition forced prices down further. By 2001, a generic company, CIPLA, offered first-​line antiretrovirals for less than $350/​per year (t’Hoen et al., 2011). Moreover, CIPLA’s chief executive officer lowered prices because he cared about fulfilling rights and producing drugs for the poor at reasonable cost (t’Hoen et al., 2011). As he put it, “healthcare cannot be reduced to a simple business: it is humanitarian in nature, and none should be denied access because of high prices” (Jewell, 2016). The preceding argument serves to defend the human right to health, provides some reason to question the main competing account of the human right to health’s function in the literature, and defends the chapter’s account of its function. This at least opens the door to alternative accounts of the right’s function. Moreover, given that this chapter’s proposed account of the right’s function helped make this case, we should accept it. Human rights

54  EXTENDING ACCESS TO ESSENTIAL MEDICINES claimants, advocates, and duty bearers may need a full theory of justice when they face genuine tragedy; but creative resolve can inform debates about distributive justice by helping fulfill everyone’s human right to health. Finally, consider some challenging cases for the idea that the human right to health should give rise to creative resolve. Many worry that people committed to promoting human rights undermine equitable access to care. Some worry, for instance, that human rights litigation throughout Latin America has helped some individuals secure care at significant cost to healthcare systems in many countries (Norheim and Wilson, 2014; Wang, 2015).45 When one looks into the evidence, it is clear that litigation has helped many people meet their basic health needs (Meier and Yamin, 2011; Brinks and Gauri, 2014). The evidence suggests it can sometimes help the poor generally (Meier and Yamin, 2011; Brinks and Gauri, 2014). Consider Colombia’s Constitutional Court’s response to the deluge of cases in 2008. In judgment T760, the court tried to address the long-​standing failures of the health system to protect the right by requiring the government to provide universal coverage with an updated unified benefit plan and reimbursement for private insurers for court-​ordered care outside of the mandated plan (Yamin, 2016, 123). Moreover the court called for stakeholder participation in the process of reorganization, “accountability for reasonableness,” and a culture of justification (Yamin, 2016, 124). This did not solve all of the problems with Colombia’s health system. The rich still have immensely better care than the poor. Nevertheless, under a friendly administration, the ruling helped Colombia make incremental progress toward a more just health system (Yamin, 2016, 124–​5). A more systematic study of such court rulings might find ways of ensuring similar litigation is successful in the future. Moreover, creative resolve requires considering other options for promoting human rights where litigation fails; where litigation causes problems, human rights advocates, beneficiaries, and duty bearers may help meet everyone’s needs in another way (Meier et al., 2012). In cases where litigation helps the middle class and the poor suffer, for instance, creative resolve suggests that duty bearers must try to do something else to help the poor (Norheim and Wilson, 2014; Wang, 2015). If they can do literally nothing without sacrificing anything as important, they need not do anything. However, that claim is radically implausible (Yamin and Parra-​Vera, 2010).46 To have creative resolve, one cannot assume that duty bearers can fulfill everyone’s rights without sacrificing anything else as significant. Recall that

The Virtue of Creative Resolve  55 the virtue contains some internal constraints. The virtue itself specifies that duty bearers should only persist in trying to fulfill the human right to health’s duties insofar as possible and permissible. Still, I stress the virtue’s positive—​commitment—​side here because I believe people need more commitment to fulfilling human rights:  most of those obligated to fulfill individuals’ human rights to health do not try hard enough. Millions lack access to essential medicines, for example, and few do anything to help them meet those needs. We should, like Martin Luther King (1963), “refuse to believe that the bank of justice is bankrupt.”

2.5. Conclusion This chapter defended two arguments for the conclusion that the human right to health should give rise to the virtue of creative resolve. The first argument was roughly as follows: 1) People sometimes fail to fulfill their significant duties because they lack moral imagination or an appropriate level of commitment. 2) If people sometimes fail to fulfill their significant duties because they lack moral imagination or an appropriate level of commitment, duty bearers should counteract this possible failure by trying hard to fulfill their significant duties. That is, they should exercise the virtue of creative resolve in doing so. 3) Duty bearers should try hard to fulfill all of their significant duties. That is, they should exercise the virtue of creative resolve in doing so. (From 1 and 2.) 4) The human right to health generates significant correlative duties. (From the nature of the right as seen in Chapter 1.) C) Those who bear the significant duties correlative to the human right to health should try hard to fulfill them. That is, they should exercise the virtue of creative resolve in doing so. (From 3 and 4.) I believe 2) is uncontroversial, 3) follows from 1) and 2), and 4) follows from the nature of the right as explicated in Chapter 1. So I primarily focused on defending 1). Moreover, I allowed that, in a world in which it was easy to fulfill people’s rights, duty bearers would not need creative resolve to live up to their moral obligations. Still, we can conclude that creative resolve is necessary in

56  EXTENDING ACCESS TO ESSENTIAL MEDICINES this nonideal world where duty bearers often face apparent tragedy and it seems like they cannot fulfill all of their rights-​based obligations. The second argument went roughly as follows: 1) The human right to health often helps human rights advocates, beneficiaries, and duty bearers respect, protect, and fulfill its claims precisely because it fosters creative resolve. 2) If the human right to health often helps human rights advocates, beneficiaries, and duty bearers respect, protect, and fulfill its claims precisely because it fosters creative resolve, it should play this role (it should foster creative resolve). C) The human right to health should play this role (it should foster creative resolve). I take it that 2) is defensible on most moral theories so I focused primarily on defending 1). I argued that the human right to health not only helps duty bearers reduce the need to ration and ration better but the right also advances health policy and practice because its beneficiaries, advocates, and duty bearers 1) question evidence that they cannot fulfill its dictates, 2) come up with creative ways of doing so, and 3) implement these ideas. The examples of how Peru’s community health advocates helped indigenous women secure better healthcare and how the TAC succeeded in lowering HIV/​AIDS drug prices around the world support the point. Moreover, I explained that, insofar as creative resolve succeeds in letting policymakers avoid rationing, this argument undercuts the main competitor to this chapter’s account of the rights’ role. Finally, I responded to some challenging cases for the account and explained why I stress the positive side of the virtue. Subsequent chapters illustrate how a new proposal for fulfilling the human right to health might help overcome the challenge the World Trade Organization’s Trade-​Related Intellectual Property Rights agreement poses to access to essential medicines. These chapters advocate evaluating key medicines’ global health impact to incentivize greater access. They explain how human rights indicators, like those embodied in the Global Health Impact Index, can incentivize pharmaceutical companies, and other actors, to extend access to essential medicines more broadly (Hassoun, 2012a, 2012b, 2015c, 2016c). Many ways the human right to health is, and might be, used to bring about positive change in international affairs depend on it inspiring beneficiaries

The Virtue of Creative Resolve  57 to stake their claims, advocates to rise to its defense, and duty bearers to fulfill their obligations. These claimants, advocates, and duty bearers have great hopes. They believe in seeking a brighter future in which everyone can secure at least a basic minimum of health. The human right to health inspires the resolve human rights claimants, advocates, and duty bearers need to come up with creative ways to fulfill its claims.

PART 2

T HE G LOBA L HE A LT H I M PACT PROJ E C T I.1.  The Global Health Landscape and the Need for Measurement The global health landscape changes quickly, but great needs remain. Recently, organizations like the Gates Foundation, Welcome Trust, the Clinton Health Access Initiative (2017), and Gavi (2017) increased funding for health and access to essential medicine (Institute for Health Metrics and Evaluation, 2016a, 2017) (Figure I2.1). Nevertheless, many people lack the essential drugs and technologies they need—​either because good drugs for many terrible diseases, primarily afflicting the poor, do not exist or because poor people cannot access them. Humanity makes incremental progress in fulfilling the human right to health, but policymakers need to know where they have succeeded in helping people access essential medicines to guide national and international organizations’ efforts. The Sustainable Development Goals (SDGs), which superseded the Millennium Development Goals, set the post-​2015 development agenda. The SDGs refocus efforts on universal health coverage and access to essential medicines for infectious and chronic diseases.1 Goal 3 requires ensuring healthy lives and promoting well-​being for all at all ages. Most relevantly, for this book’s purpose, it also requires ending the AIDS, malaria, tuberculosis (TB), and other neglected tropical disease epidemics by 2030 and providing “access to safe, effective, quality and affordable essential medicines and vaccines for all” (UN, 2017a). Rich countries focus much aid on addressing these needs. In 2011, Organisation for Economic Co-​operation and Development members targeted about a quarter of all official development assistance—​roughly US$31 billion—​to health (Figure I2.2).2

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Figure I2.2  Development Assistance for Health by Focus Area Graph from data of Institute for Health Metrics and Evaluation (2017).

the Global Health IMpact Project  61 In 2016, development assistance for health was approximately US$37.6 billion (Institute for Health Metrics and Evaluation, 2016a). Much of this came from governments (especially the United States), nongovernmental organizations (NGOs), and foundations (Figures I2.3 and I2.4).3 International organizations and public/​private partnerships made up the rest (the Gates Foundation provides approximately half of all foundation funding for health) (Institute for Health Metrics and Evaluation, 2016a). As in other areas, improving health outcomes requires good information. Recent development guidelines expressed, for instance, in the Paris Principles and Accra Agenda for Action, which guide the deployment of international assistance for development, emphasize achieving measurable improvements. Moreover, relatively recent, and impactful, global public/​ private partnerships, such as the Global Fund and Gavi, employ performance-​ based mechanisms for allocating assistance. They aim at measurable health improvements. These partnerships have significantly advanced the global health agenda. The Global Fund supports countries in combating malaria, TB, and HIV/​AIDS. Gavi works to increase vaccine use, strengthen countries’ capacity to deliver medicines, create predictable financing mechanism, Contribution by Channel of Assistance in 2016 World bank

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Figure I2.3  Development Assistance for Health by Source, 2016 Graph from data of Institute for Health Metrics and Evaluation (2017).

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Figure I2.4  Development Assistance for Health by Country Graph from data of Institute for Health Metrics and Evaluation (2017).

and ensure high-​quality vaccines are widely available at low prices for poor countries (Gavi, 2017). The Global Fund estimates that it helped save 22 million lives through 2016 (Global Fund, 2017). Gavi reports that, as of 2016, it helped avert 8 million future deaths by supporting the immunization of over 580 million children (Gavi, 2017). Even if these organizations have to improve their methods for calculating lives saved, one should not deny that they have a large impact (McCoy et al., 2013; Yan et al., 2015; Hassoun, 2014b). The book’s second part considers how to measure health impact and create incentives for pharmaceutical companies, and others, to better promote global health. It does not deny that governments have primary responsibility for securing their subjects’ human rights. Nor does it deny that international organizations can do a lot to ensure that people can access essential medicines. Despite these efforts, however, many people cannot access these medicines. So the book considers other ways to address the access problem and protect rights in our imperfect world. One can accept everything in the book’s second part and reject the arguments for a human right to health in its first part. One need only grant that no one should make it more difficult for people to access essential medicines and that individuals and companies (as well as states) should help

the Global Health IMpact Project  63 people access these medicines in our nonideal world. One can maintain that the least advantaged only need essential medicines to flourish or secure basic capacities (Venkatapuram, 2011; Buchanan, 2009). This book is not the first to propose a creative way to promote access to essential medicines, so this section lays the groundwork for the book’s initiatives by introducing some existing efforts to improve access. In doing so, it also introduces many major players in global health like the World Health Organization (WHO), the Joint United Nations Programme on HIV/​ AIDS (UNAIDS), the US Agency for International Development (USAID), the US President’s Emergency Plan for AIDS Relief (PEPFAR), and the Gates Foundation—​ as these organizations should support the Global Health Impact project. Finally, it discusses the international community’s interest in the project so far and explores a few ways to develop it further. The next chapter explains the Global Health Impact initiatives and defends them against some key objections. Again, readers solely interested in philosophical questions might skim this chapter. Chapter 4 makes the case for engaging in ethical consumption to support the labeling initiative, in particular.

I.2.  Creative Resolve in the AIDS Crisis and Current Efforts to Promote Global Health The AIDS crisis revolutionized how national and international organizations address many pressing global health problems. When the crisis broke out, many countries responded poorly—​failing to respect, and even violating, affected individuals’ rights to free movement and association and allowing discrimination. As a result, many people lost their jobs and homes. Today, many people still suffer from stigma and prejudice. In many countries, people risk their relationships, if not their lives, if they come out as HIV-​positive. Recall how patients and human rights activists responded to the crisis, by resolving to fight for rights in new and innovative ways. Initially activists in the United States fought for their civil rights as no good treatments existed and, as Johnathan Mann (1997) argued, civil rights were essential to addressing the HIV/​AIDS crisis. It is only when people at risk of developing the disease can come forward that public health programs can prevent its spread and help people access the support they need. Later activists fought discrimination and advocated for access to treatment by forming coalitions like South Africa’s Treatment Access Campaign (TAC) (though

64  The Global Health Impact Project the fight for civil rights is ongoing). The TAC used peer education to mobilize people living with HIV/​AIDS to demand access to essential medicines. It convinced the South African government and pharmaceutical companies to offer generic alternatives. It used legal and direct action to target companies attempting to block access in national and international courts (Treatment Access Campaign, 2020; Heywood, 2008). Given generic competition and public pressure, major pharmaceutical companies had to reduce prices for HIV/​AIDS medicines around the world. Other human rights organizations exercising creative resolve—​like Partners in Health—​provided new treatment models to demonstrate success in treating HIV/​AIDS and related coinfections in poor, conflict-​ridden areas (Partners in Health, 2017). As a result, efforts to address the HIV/​AIDS crisis expanded significantly. The WHO created the Global Program to help people access HIV/​ AIDS medicines. It predated UNAIDS and the WHO’s 2003 3×5 initiative to provide 3 million people in low-​and middle-​income countries with antiretroviral treatment by 2005. UNAIDS is charged with coordinating all HIV/​AIDS-​related activities. It aspires to help everyone access prevention, treatment, and support. UNICEF strives to protect children’s rights in part by providing healthcare. It collaborated with the United Nations Development Programme (UNDP); the United Nations Population Fund; the United Nations Educational, Scientific and Cultural Organization; the WHO, and the World Bank to create UNAIDS (Roberts, 2001; UNAIDS, 2017; United Nations Population Fund, 2020; United Nations Development Programme, 2017; United Nations Educational, Scientific and Cultural Organization, 2017; World Health Organization, 2017a; World Bank, 2017). Today, many bilateral and multilateral organizations providing aid to countries around the world include patient representatives on their boards or work closely with patient groups or civil society.4 The Global Fund and UNITAID do so by providing financing for programs to combat malaria, TB, and HIV/​AIDS (Global Fund, 2017; UNITAID, 2020). Others collaborate with NGOs like Oxfam International and Médecins Sans Frontières (MSF). Together they create clinics and hire health workers to assist in emergencies as well as provide basic health services, research, and technical support (Oxfam, 2020; Médecins Sans Frontières, 2017). Oxfam and MSF’s access campaigns have helped lower HIV/​AIDS treatment cost, for instance. Moreover, in partnership with Drugs for Neglected Diseases initiative (DNDi)—​a nonprofit R&D organization currently seeking treatments for HIV, leishmaniasis, Chagas, African trypanosomiasis, mycetoma, filarial diseases, and hepatitis

the Global Health IMpact Project  65 C—​they have helped develop new medicines for pressing global health problems (Drugs for Neglected Diseases initiative, 2017). Many local governments and NGOs—​like the Program for Appropriate Technology in Health (PATH)—​also embrace human rights and take creative approaches to improving global health and access to essential medicines. Thailand’s program to stem the tide of HIV, China’s efforts to combat TB, Nepal’s vitamin A  supplementation project, and Mexico’s program to improve child health (along with many others) help reduce the global burden of disease (Phoolcharoen, 2006; World Bank, 2010; Thapa, 2009; Villalobos, 2010; Conti and Ginja, 2016). PATH works on epidemic and emerging diseases, immunization and vaccines, health technologies, reproductive health, and child and maternal health. Besides new vaccines for diseases like malaria, meningitis, rotavirus, and Japanese encephalitis, PATH created several innovative new health technologies that help people access care around the world. One is a vaccine monitor—​a small heat-​sensitive sticker—​that helps health workers decide whether vaccines are viable. Another is the Uniject system—​a needle attached to a bubble prefilled with vaccine. Even those with little training can easily administer Uniject vaccines (Program for Appropriate Technology in Health, 2017).5 Rotary International’s Polio Global Eradication Initiative is notable for its success, to date, in eliminating the disease from all but a handful of countries (Polio Global Eradication Initiative, 2016). Yet other innovative public/​ private partnerships, like, the Medicines Patent Pool (MPP), International Partnership for Microbicides (IPM Global), TB Alliance, Medicines for Malaria Venture, International AIDS Vaccine Initiative, and STOP TB, revolutionize the global health landscape in other ways (IPM Global, 2020; Medicines for Malaria Venture, 2017; International AIDS Vaccine Initiative, 2017; Medicines Patent Pool, 2017; STOP TB, 2020). Several such international health organizations embrace the right to health and exercise creative resolve in developing new drugs and increasing access to existing medicines in novel ways (IPM Global, 2020; Medicines for Malaria Venture, 2017; Medicines Patent Pool, 2017). Consider, for instance, IPM Global, which partners with pharmaceutical and biotechnology companies, philanthropists, researchers, and civil society organizations to bring microbicides to combat HIV to market (IPM Global, 2017). It has created a new vaginal ring that has the potential to revolutionize HIV prevention. The TB Alliance, similarly, aims to bring new TB drugs to market by creating licensing agreements with pharmaceutical companies, repurposing drugs,

66  The Global Health Impact Project linking researchers’ efforts around the world, and conducting new clinical trials, among other things (TB Alliance, 2017). Founded by UNITAID, the MPP embodies a revolutionary new idea for promoting new drug development. After the Agreement on Trade-​Related Aspects of Intellectual Property Rights (TRIPS), the number of patents issued for HIV/​AIDS medicines in developing countries expanded greatly. Moreover, companies started patenting many different aspects of their products to decrease generic competition. Taking their cue from history, activists at Knowledge Ecology International and MSF suggested UNITAID create a voluntary patent pool to get companies to license their products in poor countries. (In World War I, the United States required the Wright brothers and their competitors to pool patents to help develop warplanes.) So far, UNITAID has helped many generic manufacturers secure royalty-​free licenses on HIV/​AIDS, TB, and hepatitis C medicines—​greatly improving access to drugs for these diseases. They also collaborate with UNITAID, the Clinton Health Access Initiative, and DNDi to develop pediatric HIV treatments (Medicines Patent Pool, 2017). More traditional organizations’ efforts help fulfill individuals’ rights to health as well (Figure I2.5). Many help shape health policy (International Medical Volunteers Association, 2015). The WHO directs and coordinates efforts to promote global health. It provides health information, training, and technical assistance to countries (World Health Organization, 2016b). The WHO also conducts research, analyzes data, and develops health systems for monitoring and evaluation. It helped lead the campaign to end smallpox and has more recently focused its efforts on supporting the Global Neglected Tropical Disease Control Program, among other things (World Health Organization, 2016b; Fenner et  al., 1988). UNICEF focuses on child health, water, sanitation, nutrition, and emergency relief. USAID has a wide-​ranging global health program. Moreover, it helps implement other government health programs like the PEPFAR, which provides antiretroviral treatment to about 13.3 million people (US Agency for International Development, 2018; US President’s Emergency Plan for AIDS Relief, 2017). Pharmaceutical companies’ efforts improve global health too. Pharmaceuticals have complex supply chains. Some companies focus primarily on new drug development, others on marketing, some on generic drug development, yet others on manufacturing or distributing medicines. Some companies do many things. The International Federation of Pharmaceutical Manufacturers (2020) provides a list of member companies’ partnerships

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that illustrates some of the ways they commit to promoting global health. Many things companies do improve access to essential medicines—​from collaborating with DNDi, Gavi, and the Global Fund to investing in new drug development (Drugs for Neglected Diseases initiative, 2017; Global Fund, 2017). However, the next chapter considers a few new ways to encourage companies, and other global health organizations, to do much more.

I.3.  A New Initiative for Addressing the Access Problem The next chapter discusses my attempt to create and implement a mechanism to help fulfill individuals’ rights to health by extending access to essential medicines around the world. The Global Health Impact project evaluates key

68  The Global Health Impact Project medicines’ health consequences. Doing so buttresses other initiatives that require evaluating medicines’ effects on the global disease burden. Moreover, examining medicines’ impacts helps improve global health and advance sustainable development. Comparative evaluation facilitates learning across programs and countries and induces positive change: governments do more to improve programs when they know the shortfalls and demonstrably better approaches exist (Gostin, 2014). National and international organizations need a broad, accurate picture showing success in extending access on essential medicines to guide their efforts. The Global Burden of Disease project has, since 2007, illuminated need and undeniably influenced health spending (Murray and Lopez, 2013). There exists no similarly comprehensive effort to evaluate global health interventions’ impact.6 The next chapter outlines a new way to measure key interventions’ comparative health consequences across different diseases, countries, and companies. The initiative has already had some uptake in the international community. The special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the United Nations (UN) High-​Level Panel on Access to Essential Medicines call for new mechanisms for measuring performance. In the Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, the UN special rapporteur specifies that “in the context of access to medicines, internal monitoring and accountability mechanisms have a vital role to play, but they should also be supplemented by a mechanism” independent of pharmaceutical companies (Hunt, 2008b, 18). Moreover, the rapporteur specifies that a good mechanism (a) Assesses the impact of the company’s strategies, policies, programmes, projects and activities on access to medicines, especially for disadvantaged individuals, communities and populations; (b) Monitors and holds the company to account in relation to the present Guidelines. (Hunt, 2008b, 19)

The UN High-​Level Panel cites the Global Health Impact submission approvingly in stating that, “There is wide agreement on the importance of comprehensive and accurate models and ‘metrics for evaluating performance, setting targets, guiding the distribution of scarce health resources and advancing access to affordable medicines’  ” (United Nations Secretary-​ General’s

the Global Health IMpact Project  69 High-​Level Panel, 2016, citing Hassoun, 2016d). One of the commentaries on the report also suggests that countries implement a regulatory overlay: requiring all pharmaceutical firms to achieve, within a specified timeframe, a designated score on a “social-​responsibility index.” This index would be a fraction, the numerator of which would be an objective measure of the firm’s contributions to public health (in the developing world); and the denominator of which would be a similarly objective measure of the firm’s profits. Ideas like this give important flexibility to pharmaceutical firms that embrace social welfare objectives, enhancing opportunities for realistic “win–​win” outcomes. (see Okediji’s contribution in United Nations Secretary-​General’s High-​Level Panel, 2016, 59)

The Global Health Impact Index might incorporate information on firms’ profits to provide the requisite standard (United Nations Secretary-​General’s High-​Level Panel, 2016, 59; Okediji, 2016). In 2017, the WHO convened a meeting of the UN High Commissioner on Human Rights, the World Trade Organization (WTO), the World Intellectual Property Organization, UNAIDS, the UNDP, the UN Conference on Trade and Development, and UNITAID to discuss the report; and several countries commented positively on it at the WHO executive board meeting (although some also raised concerns) (World Health Organization, 2017a; Saez, 2017). The WTO TRIPS Council, the Human Rights Council, and UNAIDS have also discussed the report (Knowledge Ecology International, 2020; Saez, 2017). Moreover, the Global Fund considered using the Global Health Impact rating system at a recent expert meeting on calculating the impact of Global Fund–​supported programs for malaria, TB, and HIV/​AIDS; and the project launched in Geneva with a WHO event (Hassoun and Hollis, 2014). Finally, the International AIDS Vaccine Initiative has expressed interest in the project, and the TB Alliance and the WHO’s TB section use the preliminary model for advocacy purposes. The United States Pharmacopeia and Johnson & Johnson have expressed interest in developing the Index further to guide their pricing and development efforts. The Global Health Impact rating system (or a similar one) opens the door to many new ways to incentivize pharmaceutical companies to improve global health too. Consider just a few possibilities that subsequent chapters discuss at greater length.7 The best companies, in terms of health impact in a given year, can receive a Global Health Impact label to put on

70  The Global Health Impact Project their products—​everything from lip balm to food supplements. Highly rated companies have an incentive to use the label if that allows them to garner a larger market share.8 If even a relatively small proportion of consumers promote global health by purchasing Global Health Impact products, they create a substantial incentive to use this label. If Global Health Impact goods capture an additional 1% of the market in consumer healthcare and generic products, that yields an almost US$3 billion incentive for pharmaceutical companies to become Global Health Impact–​certified (Johnsen, 2016; Palmer, 2015; Visiongain, 2010; Stone, 2013; Healthcare Packaging, 2012). Data on medicines’ global health impact can also support many other initiatives. The Global Health Impact Organization might implement a Global Health Impact licensing campaign, for instance. Pharmaceutical companies rely, largely, on university R&D. If universities only allow companies that agree to use Global Health Impact practices to benefit from their technology, companies have an incentive to abide by Global Health Impact standards. If 2% of universities sign on to a Global Health Impact licensing campaign, that creates a US$950 million incentive for pharmaceutical companies to become certified every year (for explanation, see Chapter  3). Developing a new drug, on a mid-​range estimate, costs about US$950 million (estimates range from US$.43 to US$2.6 billion) (Light and Warburton, 2009, 2011; Collier, 2009; DiMasi et al., 2016; Van der Gronde and Pieters, 2018; Prasad and Mailankody, 2018; DiMasi, 2018; Mestre-​Ferrandiz et al., 2012). Moreover, this much money might double the drugs for neglected diseases produced between in 1975–​1999 in a similar period (Trouiller et al., 2001). Socially responsible investment companies, and others, can also use the Index to target their investments. When the Global Health Impact Organization launched its Index, the pharmaceutical company Sanofi listed the Index on its home page to promote its social responsibility efforts, and several other companies responded positively (Sanofi US, 2015; Gorenstein, 2015; Prakas, 2015; Silverman, 2015). A Global Health Impact certification system gives companies reason to produce new medicines (like malaria or HIV vaccines) and extend access to existing medicines around the world (Hassoun, 2012a, 2012b). Subsequent chapters explain how researchers construct the Global Health Impact model underlying this initiative and make the moral case for evaluating medicines’ health impacts. Such rating systems provide useful information in an easily accessible format and may open the door to addressing key global health problems in

the Global Health IMpact Project  71 other ways. Policymakers can use them to improve access to medicines, as can researchers evaluating policies aimed at doing so. My aim in what follows is to see what genuine moral reasons companies and consumers have for supporting the Global Health Impact project. The arguments provide some prudential reasons for companies to do more to promote global health. I argue that companies can benefit financially from high Global Health Impact ratings at least insofar as their shareholders and stakeholders care that they fulfill their human rights responsibilities. However, further research is necessary to figure out how permissibly to encourage companies and consumers to do their part if they do not do so on their own. To convince companies to do more for global health, human rights advocates may have to engage with them slowly in the right sorts of ways. They may also need to educate consumers as well as create some new policies to encourage people to consume in ways that promote positive change. Creative resolve provides a method for making further progress within the limits of moral and empirical possibility. I just aim here to spur interest in figuring out how permissibly to encourage companies and consumers to do their part if they do not do so on their own by explaining why I think they should do so. So, without further ado, consider the case for the Global Health Impact project.

3 Promoting Global Health The Case for Global Health Impact Initiatives

3.1. Introduction Every year doctors diagnose 10.4  million people with tuberculosis (TB), every day more than 4,932 people get AIDS, every two minutes malaria kills a child (World Health Organization, 2017b, 2017c; UNAIDS, 2017).1 The world’s largest health problems afflict poor countries and their poorest inhabitants (World Health Organization, 2004). Although clean water and adequate shelter do much more for the global poor than pills, many people suffer and die from diseases that primarily afflict the global poor—​like malaria, TB, and HIV/​AIDS—​because they lack access to essential medicines, they need to avoid and combat serious illness (United Nations, 2017a, 2017b).2 Most people in low-​income countries cannot afford even basic medicines, like antibiotics (World Health Organization, 2011). Moreover, little R&D on new drugs and technologies focuses on the diseases that cause the most death and disability around the world. Consider R&D spending on diabetes versus malaria, TB, and HIV/​AIDS (Table 3.1). Table 3.1 measures the diseases’ health consequences in disability-​adjusted life years (DALYs). DALYS include estimates of disability alleviated as well Table 3.1  R&D Spending and the Global Disease Burden 2010 Condition

Global Burden of Disease (Million DALYs)

% of Total Global Burden of Disease

R&D Funding (US$ Millions)

R&D Funding (US$ Millions per DALY)

Diabetes HIV/​AIDS Malaria TB

49.8 88.7 69.6 50.9

2.02% 3.6% 2.82% 2.06%

376,000 10,400 2,400 1,400

7,550 117 35 28

Data from Institute for Health Metrics and Evaluation (2016a, 2016b, 2017) and Zhang et al. (2010). Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

74  The Global Health Impact Project as life lost. In constructing estimates of the DALYs lost to different diseases around the world, the Institute for Health Metrics and Evaluation’s (IHME’s) Global Burden of Disease (GBD) study assigns every year lived with a disability a fraction of the value of a year of healthy life (multiplying the number of cases by length of time lived with the disability and a disability weight arrived at via a global survey) (Murray et al., 2002). Similar disparities between R&D and need are pervasive across a wide range of diseases (Institute for Health Metrics and Evaluation, 2017).3 What follows suggests that by collecting and analyzing data on global health, people can come up with new ways to improve poor people’s access to essential drugs and technologies. To illustrate how data can help, it presents a new model that synthesizes health systems data to evaluate medicines’ global health impact—​the morbidity and mortality these products alleviate (in DALYs). It then suggests utilizing information about medicines’ consequences (organized by drug, disease, country, and company) to create incentives for positive change. This Global Health Impact Index and similar ones provide mechanisms for incentivizing pharmaceutical companies and other organizations to extend access to essential drugs and technologies around the world. The highest-​rated companies can receive a Global Health Impact label to use on their products, for example.4 If people prefer to purchase goods from, and invest in, Global Health Impact–​certified companies, companies have an incentive to use the label to garner a larger market share. Having an index evaluating pharmaceutical companies’ products also opens the door to other fruitful social activism. Socially responsible investors, insurance companies, and universities might take the ratings into account in deciding where to place their investments, what products to include in their formularies, and how to license their new drugs and technologies. Moreover, the chapter suggests, providing information in an easily accessible format helps address key global health problems in other ways. Policymakers interested in trying to improve access to medicines and researchers and regulators evaluating policies aimed at doing so can use the Global Health Impact Index alongside others to evaluate progress. Regulators can use such indices as standards against which to evaluate innovations and company efforts. Researchers can mine the data their underlying models provide to locate Global Health Impact’s most significant causes and consequences (and to answer many important questions). Good data cannot solve all global health problems. Nevertheless, data can help researchers implement new initiatives, complementing existing mechanisms,

Promoting Global Health  75 for addressing the access to medicines problem. Those primarily interested in this proposal’s philosophical implications can skim this chapter’s more technical parts.

3.2.  Creating a Good Rating System The Global Health Impact model is an objective, output-​based rating system that measures the DALYs companies’ drugs avert around the world.5 Again, DALYs include estimates of disability as well as mortality (Murray et  al., 2002; Anand and Hanson, 1997; Hausman, 2006). The Global Health Impact Organization—​a collaboration of researchers from universities and civil society organizations around the world dedicated to measuring pharmaceutical products’ global health consequences to advance access to essential medicines—​guides the model’s development (for information about the organization and its quality control mechanisms, see global-​healh-​impact.org/​ new). They estimate medicines’ effects around the world. Although the calculations can get complex, the basic idea behind the model is simple. Researchers construct it in two (rough) steps. First, they evaluate key medicines’ impacts. Second, they rate companies by aggregating their drugs’ estimated global health consequences (Figure 3.1). This provides the basis for ranking companies on their relative or absolute standing. The original Global Health Impact model estimated key medicines’ effect (in 2010) on HIV/​AIDS, TB, and (Plasmodium falciparum) malaria—​ three of the world’s worst health problems on which there exist good global data.6 The Global Health Impact Organization is now extending the model to better estimate treatment impact for additional diseases and interventions over time. The Global Health Impact model evaluates each drug’s health conse­ quences around the world using three main data types: data on the need for different essential medicines (the death and disability due to the diseases they treat), data on access to the drug (treatment percentages), and data on drug effectiveness (e.g., efficacy estimates) (Bloom, 2012).7 Readers can find the original methodology, examples calculating companies’ scores, and full data sources on the old Global Health Impact project site (global-​health-​ impact.org). Again, the model uses the IHME’s GBD DALY data and treatment percentage and efficacy information from international databases such as the WHO’s Global Health Observatory, reports, and academic literature

76  The Global Health Impact Project Patient Holders’ Total Drug Scores Sanofi Novartis Pfizer Inc. Merck F. Hoffmann-La Roche Ltd Shire Pharmaceuticals GlaxoSmithKline Gilead Sciences, Inc.

Figure 3.1  Company Rating on the Global Health Impact Index

(see, e.g., Institute for Health Metrics and Evaluation, 2013; Shah et al., 2007; Mphahlele et al., 2008; World Health Organization, 2010, 2012a, 2012b). Although the original model (at a very high level of abstraction) calculated the potential impact on disease burden simply by multiplying DALYs for a given year (2010) with data on treatment percentages and treatment efficacy, the most recent model is more complex. It estimates the drug’s impacts using a no-​treatment counterfactual, looks at treatment impact over time and across a greater number of diseases and interventions, and examines different parts of the pharmaceutical supply chain. Consider the basic approach. The model uses data on incidence, the population proportion treated effectively, and the GBD to estimate treatment impact. Supposing that the disease burden remaining results from people who either do not receive treatment or are ineffectively treated, researchers estimate the average impact of an untreated or ineffectively treated case. Next, they calculate treatment impact as the number effectively treated times such an untreated or ineffectively treated case’s average impact (Figure 3.2). More precisely, using data on incidence, the number treated, and drug efficacy, Global Health Impact researchers figure out the number who need a drug who are treated effectively (and the number either untreated or ineffectively treated). Again, the model assumes the GBD that remains after

Promoting Global Health  77 Box Represents Morbidity and Mortality in Absence of Treatment

Global Burden of Disease Remaining

No. of Infected

No. of Treated Effectiveness * No. of Treated

Impact of Treatment

Average Impact of an Untreated or Ineffectively Treated Case

Figure 3.2  Conceptual Model

treatment results from untreated and ineffectively treated cases. So, using the top box’s height and data on the GBD remaining after treatment from the IHME (the top box’s area), the model estimates the boxes’ length. Call this “an untreated or ineffectively treated case’s average impact.” Finally, the model estimates treatment impact by multiplying the number effectively treated (the bottom box’s height) by an untreated or ineffectively treated case’s average impact (its length).8 Obviously, this simplifies things significantly (but see global-​health-​impact.org for further details and Hassoun, 2016d, for a brief mathematical summary of the modeling approach). Moreover, much of the modeling effort still goes into estimating the parameters in the overall formula (see the supplementary file in Hassoun, 2015c, for some explanation/​ examples), and Global Health Impact researchers account for many complexities in implementing the general approach (Hassoun, 2015c, 2016c). Among other things, they use disease models and submodels for breaking down treatment percentages by disease state and regimen. To give you just one example, with TB, Global Health Impact researchers look at treatments for drug-​susceptible TB in HIV-​positive and -​negative patients and in multiple drug-​resistant (MDR) and extremely drug-​resistant TB separately (Figure 3.3). Researchers have to model resistance rates to various drug combinations and use data on resistance and treatment guidelines to get estimates of MDR-​TB regimen treatment percentages. Moreover, they take into account the fact that HIV/​AIDS and drug-​resistant TB regimens usually require longer treatment periods by dividing regimen scores by a measure of the length of treatment

78  The Global Health Impact Project All TB Incident Cases

Drug-Susceptible ("Normal") TB

HIV+

MDR-TB

XDR-TB

HIV-

Figure 3.3  Breakdown of TB by Type and Patient Group in Model. MDR = multiple drug-​resistant; XDR = extremely drug-​resistant.

Interested readers can see Hassoun (2015c, 2016c) and global-​health-​ impact.org for more information on the models’ results, limitations, and advantages as well as some possible refinements. Let me just note here that the model’s methodology is significantly different from that embodied in previous models. Avenir Health (previously The Futures Institute), for instance, produces several dynamic models focused primarily on HIV/​AIDS. Its AIDS Impact Model (AIM), for example, looks at “the consequences of the HIV epidemic, including the number of people living with HIV, new infections, and AIDS deaths by age and sex; as well as the new cases of tuberculosis and AIDS orphans” (Futures Group, 2015; US Agency for International Development, 2018). Its Prevention of Mother-​to-​Child Transmission model “evaluates the costs and benefits of intervention programs to reduce transmission of HIV from mother to child” including information on seven possible treatment regimens as well as other interventions (Futures Group, 2015; AVERT, 2018). Its Lives Saved Tool considers the impact of different child health interventions on child mortality. However, none of the models combine in a simple, transparent, consistent way estimates of the death and disability averted by medicines for malaria, TB and HIV/​AIDS (Kahn et al., 2017; World Health Organization, 2014; Stover and US Agency for International Development, 2009; Winfrey et al., 2011; Friberg and Walker, 2014; Avenir Health, 2018).9 Avenir Health’s models (and similar ones) also rely on different kinds of information and make different assumptions from those the Global Health Impact models utilize (Kahn et al., 2017; World Health Organization, 2014; Stover and US Agency for International Development, 2009; Avenir Health, 2018; Novartis, 2017). It is easy to see, for instance, the different kinds of

Promoting Global Health  79 information and assumptions used in the AIM in the diagram of the model’s structure (Figure 3.4). The AIM assumes information “about the past and future course of adult HIV incidence and treatment coverage” as well as “the survival period from HIV infection to AIDS death, the age and sex distribution of new infections, and the perinatal transmission rate” (Stover and US Agency for International Development, 2009, 5). Moreover, there are many additional assumptions in the demographic model upon which the AIM draws (Stover and US Agency for International Development, 2009). More generally, many traditional epidemiological models try to predict the future course of epidemics using, for example, data on demographic change, individual behavior, and transmission rates (Kahn et al., 2017). Different models have different advantages and limitations.10 The advantage of traditional epidemiological models is that they have some predictive power (and can show the likely course of epidemics and the need for treatment), but the limitation is that there is a lot more uncertainty in trying to predict the future. What the Global Health Impact Index does is use existing data on the need for drugs, their efficacy, and treatment percentages to estimate interventions’ impacts on the global burden of disease. I think knowing what the best health systems data say about treatment impact is just as important, and may be as useful, as using more specific models to predict the evolution of diseases over time even in distributing health resources. The Global Health Impact Index also provides some data (necessary for the labeling and other initiatives this book advances) that traditional models omit. Until recently, these models did not measure health impact in DALYs or look at many particular medical interventions’ consequences (Avenir Health, 2018; Kahn et al., 2017; Wilson, 2018). To date, they do not cover the number of medicines the Global Health Impact models examine nor do they compare impact on diseases in as consistent and comparable a way as the Global Health Impact Index does.11 Perhaps most significantly, the Global Health Impact models are different from traditional epidemiological models in looking at companies’ roles in pharmaceuticals’ supply chains. Once it calculates drug scores, the Global Health Impact team partners with Cornell’s Law School to collect data on the medicines’ patent holders. Using the data it collects on patent holders, the Global Health Impact Index rates originator companies based on their inventions’ aggregate impacts (in DALYs averted). Suppose one company has four drugs that save about 1 million DALYs each. Suppose a second company has two drugs that save about

Non-AIDS deaths

Age and sex distribution on infection

Adult prevalence or incidence

Asymptomatic HIV

Effect of HIV on TB

Progression from new infection to need for treatment Treatment costs/ 1st line ARV, Ol, nutrition supplements

Coverage of first line ART

In need of treatment

Non-AIDS orphans

Mortality on second line ART

Total Treatment Costs

Failure of first line ARV

Treatment costs/2nd line ARV

Coverage of second line ART

Coverage of cotrimoxazole for children

-% 15–19 women never married -% married women in monogamous unions

From Stover and US Agency for International Development (2009).

Figure 3.4  AIM Model. ART = antiretroviral therapy; ARV = antiretroviral; PCR = polymerase chain reaction; PMTCT = Prevention of Mother-​to-​Child Transmission.

Model life table

Non-AIDS life expectancy

80+

50–54

45–49

15–19

10–14

5–9

New HIV

New HIV infections

0–4

Receiving first line ART

Progression from need for treatment to AIDS death without treatment

Receiving second line ART

Births

Availability of PCR PMTCT treatment coverage PMTCT treatment efficacy Infant feeding distribution Breastfeeding transmission

AIDS Deaths

Impact of HIV on fertility Total fertility rate Age distribution of fertility

AIDS orphans

Promoting Global Health  81 .5 and 1.5 million DALYs each. The first company’s drugs have a greater impact (they save 4 million DALYs together) than the second company’s drugs (that, together, save 2  million) (Avenir Health, 2018; Centers for Disease Control and Prevention, 2012). In the future, the Global Health Impact Organization will also provide different indexes rating distributors and innovators. The pharmaceutical market is complicated. Some companies patent drugs that other companies developed. Some buy the rights to drugs others have patented or license drugs developed in the public sector. Often, companies license out their drugs’ manufacturing and distribution to other companies or enter into co-​ marketing agreements. For now, Global Health Impact focuses on companies with patents on key medications so that the Index can incentivize new drug development (Rafols et al., 2012).12 Moreover, a company that holds the patent on a drug can often affect the drug’s accessibility.13 These companies usually control licensing, co-​marketing, distribution, and manufacturing rights.14 Global Health Impact also presents a distribution index using the WHO’s Global Price Reporting Mechanism database to evaluate companies’ contributions to manufacturing/​distribution.15 If Avenir Health’s models (or similar ones) expand significantly, it may be possible to use their estimates of treatments’ consequences instead of those the Global Health impact Index provides; but because one of the Global Health Impact Index’s main objectives is to provide information on companies, I think another—​and perhaps more apt—​comparison to the Global Health Impact Index is in the Access to Medicines and other corporate social responsibility indexes. Consider the most well-​established, Gates Foundation–​funded, corporate social responsibility index. The Access to Medicine Index rates companies along several dimensions, including their R&D, patenting, pricing, and drug donation programs, but does not (yet) support a labeling campaign (Access to Medicine Foundation, 2016). It aims to improve access to medicine (Figure 3.5). Unfortunately, the Access to Medicine Index has some serious problems. Although it is improving, companies get significant credit for things like “commitments” and “transparency” that may not actually improve global health. After all, companies can have good policies but terrible outcomes. Moreover, the Access Index does not have a unified scientific basis for deciding what to measure, how to measure it, or how to combine their measures into a single index. The 2016 methodology specifies the weights on each

82  The Global Health Impact Project All criteria

Management

Public Policy

R&D

Pricing

Patients

Capability

1 GlaxoSmithKline plc

3.3

2 Novo Nordisk A/S

3.0

3 Johnson & Johnson

2.8

4 Novartis AG

2.8

5 Gilead Sciences Inc.

2.8

6 Merck KGaA

2.8

7 Merck & Co. Inc

2.6

8 Sanofi

2.6

9 AbbVie Inc.

2.6

10 Bayer AG

2.5

11 Eisai Co. Ltd.

2.5

12 Roche Holding AG

2.3

13 Bristol-Myers Squibb Co.

2.2

14 Boehringer Ingelheim GmbH

2.1

15 AstraZeneca plc

1.9

16 Pfizer Inc.

1.9

17 Eli Lilly & Co.

1.7

18 Astellas Pharma Inc.

1.6

19 Daiichi Sankyo Co. Ltd.

1.5

20 Takeda Pharmaceutical Co. Ltd.

Donations

1.5 0

1

2

3

4

5

Figure 3.5  Select Access to Medicines Index Ratings From Access to Medicine Foundation (2014).

of the Index’s parts as follows: innovation (10%), commitments (15%), transparency (25%), and performance (50%). The components (that make up each of these parts) are then weighted as well: management (10%), compliance (10%), R&D (20%), pricing (25%), patents (15%), capacity (10%), and donations (10%) (Access to Medicine Foundation, 2016, 35, 40–​50). It seems another index altogether is necessary to figure out which weightings accurately capture how much the components that the Access to Medicine Index measures contribute to improving health. Companies can lower prices, for instance, yet not improve health if the main barriers to access lie elsewhere. Finally, the Access to Medicine Index solicits input from many stakeholders (pharmaceutical companies, doctors, nongovernmental organizations, etc.) even when their interests compete with ensuring everyone access to the essential medicines they need (Access to Medicine Foundation, 2016, 2017).16 The Global Health Impact Index is a more objective and output-​focused rating system that rewards companies based on how their drugs actually

Promoting Global Health  83 affect global health, not just on the resources they put into creating, and helping people access, essential drugs and technologies.17 It does not just reward companies for their investments as that can make it seem like they invest more in helping than they do. This is a real concern given that pharmaceutical companies probably exaggerate their R&D costs (Angell, 2004; Light and Warburton, 2011). Furthermore, rewarding investments creates no incentive for efficiency and productivity. If people care that everyone can access essential drugs and technologies, I believe they should reward companies based on their drugs’ impacts. Moreover, the Global Health Impact Index has a unified rationale for measuring what it does—​it aims to incentivize companies and other organizations to save the greatest number of lives and alleviate the most disability, so it looks at how many DALYs different medicines save. Moreover, it does so using the best available data from international organizations and the academic literature. It does not rely on the information pharmaceutical companies provide directly. Consider how evaluating companies on the Global Health Impact Index gives them an incentive to do whatever helps their medicines reduce the disease burden as much as possible. To improve their Global Health Impact scores, companies can create new efficacious drugs, come up with improvements on existing drugs, or increase access to treatment. Some relatively cheap, or even free, ways to greatly improve impact scores exist. To improve their Global Health Impact scores, companies can reduce prices for medicines in developing countries or help people secure the nutrition they need for effective treatment. They can collaborate with countries or international organizations to help people secure treatment or increase new drug development. The Global Health Impact Index focuses on evaluating companies’ drugs’ global health consequences in a rigorous way and not on companies’ efforts or policies, so no one should object that the Index scores depend on many other factors besides companies’ innovations—​ including country-​ level health system performance, international aid efforts, and what other drugs already exist. To see why, consider one concrete example. Suppose a company offers a new product for a disease that requires expensive genetic testing and no programs designed to provide that testing, or no agreed upon strategy for doing so, exist. Even if the company gives the drug away, it may have a low score on the Global Health Impact Index because most countries do not have genetic testing in place to identify candidates for the medicine. It may even score lower than a second, much less generous, company scores because

84  The Global Health Impact Project it is easier to diagnose the diseases the second company’s drugs address. Nevertheless, each company gets as much credit as its drugs have impact. The first company can increase the credit it receives if it can also help people figure out if they have the disease so that more people receive treatment. It can partner with organizations that help developing countries’ health systems secure diagnostic services or come up with cheap ways to diagnose patients in the private sector (e.g., with something similar to the new home test kits for HIV/​AIDS available in the United States). Once Global Health Impact researchers rate companies, they need empirical evidence to specify exactly how to rank them. Chapter 6 presents some such evidence, but researchers need further evidence to decide how best to do so. What they should do depends on consumers’ willingness to purchase different products from Global Health Impact–​certified companies and markets for these products’ size. Researchers need to pay attention to how much companies have to do to secure (and maintain) different ratings to maximize the incentive for increasing global health impact. Using the evidence, they can determine if giving only top-​rated companies the highest ranking will maximize the incentive to increase global health impact or if they should use a continuous rating system or something with different grades.18 To see how the rating system works, suppose that the evidence supports giving just the top 10% (here the top two) companies on the Index the highest rating (as Chapter 6 discusses, empirical evidence is necessary to decide where exactly to set the bar). Novartis (alleviating 4.4% of the global burden of the diseases in our model) would barely rise above the threshold, while Pfizer (alleviating 3.3%) would fall just below it. Consumers can choose Novartis’s Excedrin over Pfizer’s Advil as well as other alternatives. However, it would not take much for Pfizer’s drugs and technologies to have a larger impact than Novartis’ drugs and technologies. Realizing this, Novartis also has a reason to extend access to its essential medicines (or to come up with new medicines for the diseases in the model) to remain certified, to improve its brand perception, and to secure greater sales. To estimate the incentive’s size, note that Pfizer’s 2016 consumer product revenue was US$52.824 billion (Pfizer, 2016). If securing a higher rank increases sales by 2% on average, this creates a US$1.05 billion incentive for Pfizer to increase its global health impact. Some companies may resist making some products more widely available if it limits their ability to profit from them. Still, many of the things people need in the developing world do not make

Promoting Global Health  85 companies much profit simply because the people who need them cannot afford to pay very much. Importantly, the Global Health Impact Organization is expanding the Index over time to encourage companies to make sustainable changes in their policies for the long term, not just pursue policies that pay off in the short term. So even if another company beats out Pfizer, Novartis, or Sanofi in the next iteration, the competition will continue. This ensures that the Index gives appropriate weight to rewarding long-​term investments that actually improve global health. There are other ways the Global Health Impact Organization might modify this rating system to increase its ability to incentivize positive change. To ensure that companies do not get too much credit for producing slight variations on standard drugs and technologies, researchers can consider how much improvement each drug offers over the next best alternative by subtracting the best old drug or technology’s expected benefit from the new drug or technology’s expected benefit (though market competition also constrains the amount of credit companies receive as new technologies continue to replace old ones).19 If researchers can also evaluate companies’ policies’ health consequences, the Global Health Impact Organization can also incentivize them to increase their impact in other ways. Researchers might evaluate companies’ charitable efforts or outreach programs, for instance. They can also adapt the Index to estimate medicines’ cost-​effectiveness.20 Even though the Global Health Impact analysis is constantly improving, the Index creates incentives to improve global health; and it is possible to use a better index if researchers develop one. Researchers just have to establish a feasible bar over which companies must pass to receive Global Health Impact certification. The rating system only has to rank companies (ordinally), to create incentives for companies to extend access to medicines around the world.21

3.3.  Global Health Impact Labeling Consider one way the Global Health Impact rating system can encourage pharmaceutical companies to extend access to essential drugs and technologies. Suppose the Global Health Impact Organization gives companies a label to use on their products. Companies have an incentive to use the Global Health Impact label to garner a larger market share. Suppose Sanofi,

86  The Global Health Impact Project for example, receives the label based on its ranking; it can use the Global Health Impact label on Bullfrog sunscreen. Sanofi then has an incentive to do so because people, in some cases, prefer to purchase Bullfrog to the alternative brands.22 Similarly, suppose Novartis receives the label and uses it on Excedrin. If even relatively few consumers prefer Global Health Impact products, that creates a significant incentive to use the label, for some estimate that the market for analgesics alone will reach US$26.4 billion per year by 2022 (Allied Market Research, 2016). Companies can use the label wherever they market their products. The label will give companies an incentive to do things that save more lives and alleviate more disability. It gives Sanofi and Novartis reason to continue to partner with the Medicines for Malaria Venture to develop new medicines for this devastating disease and to make their medicines more widely available (Hassoun, 2012a; Novartis, 2016). After all, other companies can compete to secure a higher Global Health Impact ranking and secure the label—​beating out Sanofi and Novartis—​by saving an even greater number of lives and alleviating more disability. Again, suppose researchers set the bar so that only the top 10% of companies could secure the label on the original index. Then, Pfizer would only have to do a bit more with its TB medicines (or develop something new for malaria, neglected tropical diseases, or HIV/​ AIDS) to secure the label instead of Novartis when the Global Health Impact organization releases its next iteration of the rating system. We should explore the Global Health Impact labelling proposal, given other labeling campaigns’ success. There is good experimental, and quasi-​ experimental, evidence that consumers buy many products with “ethical” labels (Hiscox and Smyth, 2011; Hainmueller et al., 2015; Hiscox et al., 2011). Moreover, when they do so, that helps people around the world (Raynolds, 2002; Calo and Wise, 2005; Milford, 2004; Ronchi, 2002; Bacon, 2005; Taylor, 2002; Imhof and Lee, 2007). Similar labeling initiatives—​including (RED), fair trade, and Organic labels—​have a large impact (Fairtrade Labelling Organizations International, 2018). Big fair trade markets exist in Europe and the United States. By 2002, about 50,000 retail outlets (97% of roasters) including Starbucks, Peet’s, and Green Mountain sold fair trade–​certified coffee (Raynolds, 2002). By 2011, retailers sold 98,000 tons of fair trade coffee around the world in the United Kingdom alone (Fairtrade International, 2012). By 2015, more than 800,000 small coffee farmers belonged to fair trade cooperatives or associations. And it is not just coffee (Fair Trade Labelling Organization International, 2018). By

Promoting Global Health  87 2011, people spent approximately €500 billion on fair trade–​certified goods (Fairtrade Labelling Organizations International, 2012). By 2015, producers made about €138 million (Fairtrade Labelling Organizations International, 2016). (RED) and Buy Pink—​for companies willing to donate some profit from selling a product to AIDS and breast cancer research, respectively—​ are also successful. (RED) allows companies to make a single product red in exchange for a contribution to the Global Fund.23 By 2010, it provided US$150 million to the Global Fund and was one of its largest contributors (Global Fund, 2010). The US Department of Agriculture (USDA) organic label, Leadership in Energy and Environmental Design certification for green buildings, and Forest Stewardship Council and Smart Wood Certified Forestry sustainable forestry labeling are likewise growing (US Department of Agriculture, 2015; Hansen and Bratkovich, 1980; Fernholz et  al., 2010; Leadership in Energy and Environmental Design, 2015). Ethical consumption is generally rising. In the United Kingdom, for instance, expenditure on ethical goods and services in energy, housing, household items, transportation, personal items, and subscriptions almost doubled between 2002 and 2007 (Co-​Operative Bank, 2007). By 2015, the average UK consumer spent approximately €580 on ethical goods and services per year (UK Population, 2016; Rodionova, 2015). This compares favorably with per capita spending on foreign aid (€256/​year) (Exchange Rates, 2020; Morris, 2017). In some ways, Global Health Impact certification differs from other ethical consumption campaigns; but here, and in subsequent chapters, I argue that these differences support the prospects for a Global Health Impact label. Global Health Impact certification differs from fair trade, in part, because it ranks firms rather than products. It also focuses on helping poor people access medicines to improve their livelihood rather than on improving their livelihoods directly or stopping exploitation. However, some other important ethical consumption initiatives encourage consumers to discriminate between products made by highly ranked firms and others and focus on helping people access essential medicines. ISO 14000 certification—​which evaluates companies’ and other organizations’ environmental management efforts—​ provides one example (International Organization for Standardization, 2009, 2015). The Pink label rewards firms that are contributing to breast cancer research (Carter, 2015; Breast Cancer Research Foundation, 2017b). Global Health Impact certification probably most closely resembles the (RED) campaign where firms that invest in global health can use the (RED) package on one product. Again, (RED) is one of the largest contributors to

88  The Global Health Impact Project the Global Fund, and in 2005 the Global Fund provided about 20% of the international funding for HIV/​AIDS programs and about 65% of the funding for TB and malaria programs (Komatsu et al., 2010; Henry J. Kaiser Family Foundation, 2006). By November 2017, (RED) contributed over US$500 million to support Global Fund HIV/​AIDS programs in Africa and impacted more than 90 million lives (RED, 2017; Global Fund, 2017). Global Health Impact certification differs from (RED) in that it rewards companies for their drugs’ actual impact (not their investments), and the Global Health Impact Organization gives companies a label to use on everything they make. However, these differences suggest it can have an even greater effect. Consider how a Global Health Impact label can create large incentives for positive change and why companies will try to increase their health impact to secure the label.24 One percent of the market in analgesics alone is worth over US$346 million (Global Industry Analytics, Inc., 2010). Larger markets for other pharmaceutical products exist. Some state that consumer healthcare sales were US$217 billion in 2016 (Johnsen, 2016). Top products include cough, cold, and heartburn medicines; laxatives; oral antiseptics; antidiarrheal medicine; eye care products; acne remedies; anti-​itch medications; anti-​smoking products; first aid care; and sunscreens (Stone, 2013). If companies can secure 1% more consumer sales in a US$217 billion market, that is more than US$2 billion worth of incentive for them to do so. Plus companies can benefit in other ways from improving their brand perception (e.g., employee recruitment and retention, socially responsible investment). Developing a new drug per year probably does not cost US$2 billion, and companies can extend access to many existing drugs to millions of people for much less than this (see Chapter 4 for discussion of Merck’s drug donation program to get a sense for the scale of what companies might do for much less than this).25 Patients, doctors, and insurance companies may not always prefer Global Health Impact drugs and technologies. Sometimes people need one particular medicine to treat their condition, in which case its Global Health Impact status does not matter much. Many drugs have equally good competitors, however. In 2017, almost 80% of US prescriptions were for generic drugs (Business Wire, 2017). When an equally good competitor for a patented drug exists, patients, doctors, and insurance companies can take the ratings into account. More importantly, many over-​the-​counter medications have equally good competitors, and there are many other consumer healthcare products too. Again, some

Promoting Global Health  89 suggest the sales of consumer healthcare products were US$217 billion in 2016 (Feldman, 2016; Johnsen, 2016). This market includes many drugs made by major pharmaceutical companies including Nicorette, Monistat, and Claritin that have reasonable competitors. Since researchers rank companies that produce generic drugs, Global Health Impact labeling will create large incentives for some companies to increase their health impact. Some suggest the global generic drug market exceeded US$74 billion in 2014, and consumers are often willing to buy generic (Palmer, 2015).26 So the fact that pharmacies usually do not carry more than one generic of the same molecule should provide no objection to this ranking (people might prefer a Global Health Impact–​labeled generic medication to its patented competitors). If Global Health Impact sales amount to an additional 1% of consumer healthcare product and generic medicine sales, that yields an almost US$3 billion incentive for pharmaceutical companies to become Global Health Impact–​certified (Palmer, 2015; Johnsen, 2016; Healthcare Packaging, 2012). This number looks big enough to incentivize even Pfizer to do some good. Many big companies have over-​ the-​counter divisions. Despite a big slump in consumer sales in 2012, for instance, about a third of Novartis’ income came from its over-​the-​counter medicines (Bennett, 2012). Furthermore, pharmaceutical companies make many things besides drugs—​from diet drinks to lotion, pet vitamins, and mouthwash. Pfizer, for instance, makes parasiticides, anti-​infectives, biologicals, allergy, cancer, pain, metabolic disease, production, nutritional, and food safety products for animals. Besides pain management, dietary supplements, respiratory, topical, and gastrointestinal medicines for people, it has “a full line of infant formulas, follow-​on formulas, growing-​up milks and prenatal and adult supplements” (Pfizer, 2010). So, it could use the Global Health Impact label on these products too. Finally, governments, insurance companies, and pharmacy benefit managers (PBMs), who administer prescription drug programs for private insurers and healthcare plans, can create additional incentives for companies to extend access to essential drugs and technologies using the Index and/​or label. Both public and private insurance companies and PBMs can create incentives for positive change by giving (some) preference to (medically equivalent) Global Health Impact drugs on their formularies. Highly ranked companies can lobby insurance organizations to encourage them to do so. Alternately, researchers can create a similar rating system measuring

90  The Global Health Impact Project insurance companies’ and PBMs’ impact to motivate them to consider companies’ Global Health Impact scores. Although some companies may try to undercut the Global Health Impact label, or game the system, by lobbying for higher ratings or creating counterfeit labels, highly ranked companies should support it. If researchers keep the rating standards transparent and simple and educate consumers and healthcare professionals about the Global Health Impact label, consumers may trust it and view alternatives with suspicion. This is the case with fair trade labels, for instance. Governments can even regulate the label as the United States did, however imperfectly, with “organic” labels.27 Ultimately, whether Global Health Impact initiatives work depends on how people respond. For the label to work, for instance, consumers must support it. The last chapter provides some empirical evidence that they will and explains how to secure further evidence. The book primarily aims, however, to make the case for further inquiry.

3.4.  Global Health Impact Licensing Having a Global Health Impact certification system for pharmaceutical companies also opens the door to many other ways to incentivize companies to extend access to essential drugs and technologies. Global Health Impact certification can form the basis for corporate social responsibility initiatives, for instance (International Institute for Sustainable Development, 2020). Socially responsible investment companies can include Global Health Impact companies in their portfolios.28 Corporate social responsibility initiatives have a large impact on firm performance, and shareholders likely invest more in socially responsible companies (Erhemjamts et  al., 2013; Flammer, 2015). Alternately, the Global Health Impact Organization can link high scores on the Index to other company benefits, for example, priority review for important medications (Towse et al., 2011). If only companies with high ratings can secure the vouchers, that likely decreases their market value but increases the incentive for companies to get high scores by extending access to essential medicines more broadly. Such policies might positively affect global health (again, researchers need empirical analysis to see). The Global Health Impact Index might even encourage new kinds of social activism. An organization like Universities Allied for Essential Medicine (UAEM) might, for instance, implement a Global Health Impact licensing

Promoting Global Health  91 campaign by convincing universities to give licenses only to highly rated companies (or at least to give preference to such companies). Alternately, the American Medical Student’s Association, which uses metrics to put pressure on pharmaceutical companies and universities to improve policies, might launch such a campaign. Universities have embraced other licensing proposals. UAEM has, for instance, gotten some universities to accept their Equitable Access License (i.e., open-​access license) (Universities Allied for Essential Medicine, 2009). UAEM even got the University of California Technology Transfer Advisory Committee to issue the following guideline to technology licensing offices on all campuses:  “life-​saving UC medical research should be licensed to drug companies in ways that make the resulting products affordable to low-​ income patients in developing countries” (Collinsworth, 2010). UAEM has also convinced many other universities to implement open access licensing policies for developing countries.29 Although universities compete intensely for research money and are increasingly governed as corporations, professors and students can often hold them to account. UAEM has developed a university score card that evaluates their efforts to promote global health to encourage them to improve their practices. They can expand this score card to look at whether or not universities adopt the proposed criteria for licensing on the basis of the Global Health Impact Index (Universities Allied for Essential Medicines, 2013; Stephan, 2012). Pharmaceutical companies rely, to a large extent, on university R&D. Universities have developed many drugs and technologies including vaccines, tests for osteoporosis and breast cancer, and the “gene splicing technology that initiated the biotechnology industry” (Association of American Universities, 1998). Many big pharmaceutical companies license in, or acquire, a large percentage of their drugs (by, for instance, purchasing small biotech companies) from universities (Angell, 2004). In 2000, a US Senate report found that federal funding supported the development of 15 of the 21 most important drugs.30 In 2002, “Pfizer licensed in 30% of its drugs, and Merck 35%” (Angell, 2004, 71). Bristol-​Myers Squibbs licensed all of its bestselling drugs in 2003.31 And, by 2013, more than 50% of companies’ R&D pipeline was coming from external sources (Schuhmacher et al., 2016; Levy, 2013). Pharmaceutical companies probably acquire even more of their most innovative drugs from universities.32 “Nearly all HIV/​AIDS and cancer

92  The Global Health Impact Project drugs are based on outside research—​most of which is university research sponsored by the National Institutes of Health” (Angell, 2004). On a conservative estimate, universities in high-​income countries do about a third of all R&D (Figure 3.6). The percentage is likely even greater as companies have a large incentive to over report R&D and include marketing costs as R&D.33 Companies did not benefit much from university technology until recently. In 1980, the US congress passed the Bayh-​Dole Act, which allowed universities to patent their research and to license it to third parties (Consumer Project on Technology, 2005). Before the act passed, universities received fewer than 250 patents per year. In 1996, universities received over 2,000 patents, “executed nearly 2,200 licensing agreements and received royalty income from licensing of US$242 million” (Universities Allied for Essential Medicine, 2007). Between 1980 and 2007, academic research resulted in over 1,500 start-​up companies (de Francisco and Matlin, 2006, 41).34 In 2014, universities held at least 42,015 active licenses (Association of University Technology Managers, 2014).35 Many other countries have implemented similar legislation in recent years (Graff, 2007). It is not obvious, however, that the laws have resulted in more innovation (Giuri et al., 2013). Though the assistance universities’ technology transfer offices provide may help with licensing, these property rights may reduce the number Private Not-for-profit 9%

Higher Education 28%

Private For-profit 51%

Government 12%

Figure 3.6  R&D in High-​Income Countries Modified from de Francisco and Matlin (2006, 41).

Promoting Global Health  93 of spin-​off companies created—​previously patents were retained by individuals, not their employers. Furthermore, pharmaceutical companies rely more and more on universities for medical research. Recently, in-​house pharmaceutical research has lagged (National Institute for Health Care Management Foundation, 2002; Paul et al., 2010; Schuhmacher et al., 2016). In light of its dry pipeline, the pharmaceutical industry is “searching ever more desperately for drugs to license from small biotechnology companies and universities” (Angell, 2004). Because pharmaceutical companies depend on university licenses, universities could, conceivably, influence these companies’ policies.36 If, for instance, universities’ licensing agreements require sales of their technology go to highly rated companies, companies have a large incentive to meet Global Health Impact standards. Of course, universities often create new start-​up companies or license start-​up companies that cannot themselves receive Global Health Impact certification. These companies test and develop products using university technology. Eventually, however, their owners sell these companies, or their technology, to larger companies that could receive Global Health Impact certification. So, contracts need downstream licensing clauses. Universities might adopt a Global Health Impact licensing policy voluntarily. Their technology transfer offices could agree to implement Global Health Impact licensing practices. At the University of Pittsburgh, for instance, the head of the Office of Technology Management has this decision-​making capability. The policy would probably also need the chancellor’s support if it negatively impacted the university’s ability to sell licenses (interview of Dr.  Maria Vanegas, conducted by author, 2007; see Wang, 2012).37 Northwestern University made US$1.36 billion from a single drug in 2011 (Kotecki, 2016). Depending on how researchers set Global Health Impact standards, the policy might not negatively impact the sale of university licenses. At least, researchers should carry out the requisite econometric analysis to determine the likely impact on all of the relevant stakeholders (including universities and the poor). Technology transfer offices already use some non-​financial criteria when deciding to whom to license their products. The Bayh-​Dole Act encourages universities to license to small US companies, and universities acquiesce without complaint.38 If the technology transfer offices at some universities refuse to sign on to voluntary programs, however, professors and researchers might have an impact because they sign agreements to allow universities to license patents

94  The Global Health Impact Project resulting from research they create. Although some researchers at major universities receive industry funding, industry funds only 7% of university research (Association of University Technology Managers, 2007). Obviously, this funding does not all come from the pharmaceutical industry.39 Universities may consider the Global Health Impact Index in deciding which companies to partner with since universities hold an avowed commitment to creating and disseminating knowledge for the public good, and they have pledged to see the technologies they develop deployed to benefit the world. Campus decision makers are insulated from lobbies that may dominate political arenas; they are expected to be responsive to students and faculty; and they operate in an environment where reasoned debate, not power, is expected to be the currency. (Universities Allied for Essential Medicine, 2007)

As the Association of University Technology Managers put it, universities do not only care about monetary benefits but want the new drugs and technologies they develop to “be used to further the public good” (2007, 35). Students could also encourage professors and universities to engage in Global Health Impact licensing. They might follow United Students Against Sweatshops’ (USAS’) example. USAS has helped convince campuses to buy “sweat-​free” clothing made at factories approved by the Worker Rights Consortium.40 If a Global Health Impact licensing campaign only succeeded as well as USAS’s campaign did by 2012, this proposal could create more than US$840 million worth of incentive for pharmaceutical companies to become certified every year.41 That exceeds the cost of developing a new drug on many estimates (Millman, 2014). This incentive might suffice to double the number of drugs produced for neglected diseases between 1975 and 1999 in a similar time frame (Trouiller et al., 2001).

3.5.  The Global Health Impact Initiatives’ Advantages Using global health impact information (perhaps with associated campaigns) has some advantages over, and avoids some problems with, the main alternatives for increasing access to essential medicines around the world. The Global Health Impact Index creates incentives to both help people access

Promoting Global Health  95 existing drugs and technologies and do new R&D for the world’s worst health problems. Most alternatives address only one issue.42 Consider a few alternatives to help people access existing drugs and technologies (Hoffman, 2014; Berdud et al., 2016).43 Pharmaceutical companies can price drugs differentially, offering them at different prices for different markets (Flynn et al., 2009; Danzon and Towse, 2003; Danzon et al., 2013; Williams et  al., 2015). Alternately, countries can reduce medicines’ costs via compulsory licensing (World Trade Organization, 2001, 2006, 2017). Countries can issue licenses to produce and/​or import these products without approval by the company holding the patent. Or activists can try to repeal the World Trade Organization’s (WTO’s) Agreement on Trade-​Related Aspects of Intellectual Property Rights (TRIPS) or, barring that, modify it to allow poor people to secure essential medicines at or below marginal production costs (Lanjouw and Jack, 2004).44 Many governmental and nongovernmental organizations can also do much more to extend access to essential medicines to people who need them. Although companies do some differential pricing, they have also resisted differential pricing (Kanavos et  al., 2004). In some cases, companies may suffer financially if they lower their prices. It may be difficult to prevent people from reimporting cheaper drugs across borders, even with different packaging (Elek et al., 2016). Moreover, companies may have trouble selling expensive drugs to the richest people in poor countries (Flynn et al., 2009). Reference-​based pricing (where countries consider the prices offered in other countries in deciding what they are willing to pay for pharmaceutical products) may also limit companies’ ability to price differentially. (Though the net effect of both reference-​based and differential pricing is not clear, as pharmaceutical pricing is not transparent,45 there is some evidence that prices are higher in poorer countries [Morgan et al., 2017; Danzon et al., 2013; Elek et al., 2016; Vandoros and Kanavos, 2014].) Moreover, the consequences of differential pricing—​like reference-​based pricing—​probably depend on how decision-​makers implement the policies. In any case, companies do not pursue differential pricing to the extent required to adequately protect global health (Williams et al., 2015). Similarly, while compulsory licenses decrease medicine prices in many countries, companies often resist compulsory licensing (Hassoun, 2015c; Lee and Son, 2017; Beall et al., 2015; Beall and Kuhn, 2012; Correa, 2018). When South Africa passed its Medicines Act, many big pharmaceutical companies sued because the act encouraged generic competition for AIDS

96  The Global Health Impact Project medicines (Barnard, 2002; Outterson, 2006).46 It was only after protracted negotiation, and negative media attention, that pharmaceutical companies withdrew their lawsuit. Still, South Africa did not go on to import generic medicines (Barnard, 2002; Outterson, 2006; Global Health Watch, 2005). At companies’ behest, the US trade representative singles out other countries in its 301 Reports for not enforcing foreign intellectual property rights. So, they may face trade sanctions (Office of the United States Trade Representative, 2017).47 The United States also uses bilateral trade agreements and “diplomatic and political pressure to undermine countries that produce generic medicines and/​or consider importing them” (Global Health Watch, 2005, 106).48 Worse, countries without their own manufacturing capacity often cannot secure the drugs they need even if they do issue compulsory licenses (Barnard, 2002; Outterson, 2006; Global Health Watch, 2005; Hassoun, 2015c; Lee and Son, 2017; Friedman et al., 2003; Beall et al., 2015). TRIPS requires countries like India, Brazil, and Thailand that export essential drugs and technologies to issue compulsory licenses to do so (Barnard, 2002; Steinbrook, 2007; World Trade Organization, 2017). Few countries have agreed to export drugs under a compulsory license (World Trade Organization, 2006). The first was Canada, which issued a compulsory license to export TRIPVAR, an AIDS medication, to Rwanda (Goodwin, 2008). However, given international and Canadian laws’ complexity, Canada was yet to export a single pill three years after issuing the license (Goodwin, 2008). Moreover, even countries implement compulsory licenses, the costs of medicines may still be substantially higher than medicines provided through international procurement efforts (which may attract multinational generics manufacturers, increase competition, and alleviate concerns about medicine quality) (Danzon et al., 2013). Together these facts may explain why few low-​income countries utilize compulsory licenses (Beall and Kuhn, 2012; Correa, 2018; Lee and Son, 2017; Beall et al., 2015). To make compulsory licensing more effective, countries should consider adopting clear patent guidelines and procedures for granting the licenses. They should also better train judges and patent examiners (Correa, 2018). Moreover, there was a large social movement, backed even by the (then) pope, to prevent the TRIPS agreement (Martin, 2002). Ultimately, it failed (World Trade Organization, 2006). Pharmaceutical companies want control over the drugs they develop in every market. So countries cannot realistically return to the pre-​TRIPS situation. Health advocates find it difficult to modify

Promoting Global Health  97 the agreement at all to allow greater access to essential medicines in poor countries (Drahos and Mayne, 2002; Asrar and Quigley, 2016). Finally, there are many barriers to other ways governmental and nongovernmental organizations try to extend access to existing medicines. Countries can not only negotiate with companies for lower drug prices and formulary placement, use reference-​based pricing, and support parallel importation and compulsory licensing, but they can limit patent terms (e.g., by facilitating market entry for generic and biosimilar medications) and utilize international resources (e.g., patent pools and drug procurement and distribution). Some other promising reforms include reducing patient copays, implementing policies to improve prescribing practices and results, and paying for medicines based on their performance (Maniadakis et al., 2017; Boehm et al., 2013; Prasad et al., 2017; Glasgow, 2001). Nongovernmental and international organizations can support country efforts to extend access on existing medicines, for example, by funding efforts to do so, advocating for legal change, and so forth. Still, effective options are often limited. Countries not only face international pressure, and lack resources, they have to overcome problematic laws and practices. In the United States, for instance, it is illegal for Medicaid part D to negotiate for lower prices or rebates, and the Food and Drug Administration (FDA) has blocked parallel importing, citing safety concerns (Prasad et al., 2017). Many pharmaceutical companies also attempt to reduce competition from firms offering generic and biosimilar medicines by, for example, initiating lawsuits and paying competitors to withhold entry. Moreover, there is significant resistance to other proposed reforms (from reducing copays, to giving prescribers feedback on patient outcomes and value-​and reference-​based pricing) (Prasad et al., 2017). As President Trump put it, when he reneged on campaign promises to require pharmaceutical companies to disclose prices and allow Medicare to negotiate directly with companies, a “tangled web of special interests” oppose lowering high drug prices (Pear, 2018). In short, the requisite changes may be difficult, though there is significant room for improvement. Alternatives to Global Health Impact campaigns that encourage R&D on essential drugs and medications for neglected diseases include prize funds and grants (Kremer and Glennerster, 2004; Outterson, 2006).49 Global health organizations and foundations often offer prizes or agree to buy medicine from any company that develops a new drug or technology (e.g., for malaria) at a set price. They often give grants for research on neglected diseases.50 The

98  The Global Health Impact Project Gates Foundation recently collaborated with Novartis to test new antibiotics for TB, for instance (Jarvis, 2006). Neither alternative captures the free market’s efficiency. The agencies offering prize funds or grants have to decide what neglected diseases, or other problems, they want to address. They might help people more effectively in other ways. They also have to decide how much to pay for a given invention. “These decisions are likely to be associated with substantial inefficiencies due to incompetence, corruption, lobbying by companies and patient groups and gaming” (Pogge, 2008, 243).51 Aidan Hollis and Thomas Pogge suggest creating a second (voluntary) reward system for new R&D (2008).52 Under this system, pharmaceutical companies will not receive a limited monopoly for their inventions. Rather, they propose rewarding inventors based on how much their inventions contribute to ameliorating the GBD. Inventors would have an incentive to invest in whatever R&D, infrastructure improvements, pricing systems, or donation programs most ameliorate the GBD. They can even price their drugs below marginal production cost to capture a greater reward from a global fund. The fund would give inventors an incentive to collaborate with, rather than protest against, generic companies, country governments, and nongovernmental organizations trying to alleviate the GBD. If they work out the design details properly, Hollis and Pogge’s proposal will not create an incentive for companies to prefer drugs that treat affluent patients’ chronic diseases or disorders. Rather, it will give companies an incentive to invest in those drugs that prevent the most death and alleviate the most suffering. In earlier work, Pogge said that the “cost of the plan might peak at around US$45–​90 billion. With all the world’s countries participating, US$45 billion amounts to 0.1% and US$90 billion to 0.2% of the global product” (Pogge, 2007, 18). In the proposal developed with Hollis, they revise this estimate to US$6 billion (Hollis and Pogge, 2008). Unfortunately, Hollis and Pogge’s proposal also has a few problems.53 First, their proposal relies on collecting new, difficult to secure, data from clinical trials (Selgelid, 2008).54 Partly for this reason, their proposal is expensive and depends on developed-​country taxpayers or donors, who have historically done little to help the global poor.55 Unless countries fund it well, it cannot generate a large enough incentive for companies to risk investing in new drugs and technologies. Tim Hubbard and Jamie Love offer a slightly different proposal to increase access to essential medicines. They suggest a global treaty to finance R&D

Promoting Global Health  99 where, for instance, countries can use prize funds to fulfill their obligations (Hubbard and Love, 2004). They support mandatory contribution and open access to resulting technology. The contribution system might function like a competitive pension plan where employers or individuals direct their investments toward those R&D firms they believe most effective (Hubbard and Love, 2004). Prize funds require less bureaucracy than centralized R&D organizations. They are also more efficient. Unfortunately, advocates may also find it difficult to implement Hubbard and Love’s proposal. The pharmaceutical industry may resist a mandatory R&D prize fund that requires open access to resulting technology. Moreover, like Hollis and Pogge’s proposal, it relies on developed countries signing an international treaty to support R&D. Even if they agreed, countries might not follow through and actually require people to invest in R&D. Again, developed countries rarely fulfill their duties under international law to aid the global poor. There are other ways countries, international institutions, and nongovernmental organizations can try to increase R&D on essential medicines, though doing so is difficult. They can try, for instance, to cultivate public/​ private partnerships like the TB Alliance or International Partnership for Microbicides that create new technologies to address major global health problems. Alternately, they can expand other push or pull mechanisms for incentivizing new innovation and greater access (Danzon and Towse, 2003; Stevens and Huys, 2017; World Intellectual Property Organization, 2017; Plotkin, 2008; Attaran, 2004). Many of the most promising proposals will cost a lot to implement and sustain. Many address only part of the access problem. The Global Health Impact project avoids some of these problems and does not compete with other mechanisms for incentivizing access. First, many pharmaceutical companies have an incentive to support Global Health Impact campaigns, while most (if not all) companies lack the incentive to do enough differential pricing, and almost all have an incentive to resist compulsory licensing and a return to the pre-​TRIPS situation. Second, Global Health Impact certification does not undermine the free market’s efficiency. The Global Health Impact Organization does not decide what diseases or problems companies should address, nor does it need to determine how much to pay for inventions before they exist. Researchers evaluate companies’ products based on how much they actually help people (though researchers need to expand the Index to every disease to create incentives to

100  The Global Health Impact Project address them all and beyond medicines to create incentives to address health problems in ways that do not involve them at all).56 Third, the Global Health Impact Index focuses on companies’ output and can incentivize them to do new R&D on neglected diseases as well as extend access to existing drugs and technologies.57 Fourth, researchers need not collect expensive data to create the Global Health Impact Index, though it benefits from, and incentivizes, improvements in existing diseases surveillance systems.58 Fifth, although the Global Health Impact project is not as ambitious as Hollis and Pogge’s proposal, it is practical and relatively low-​cost. Although it costs something to administer a trademark like Global Health Impact, it costs nowhere near the US$45–​90 billion (or even US$6 billion) price tag for the Health Impact Fund (Hollis and Pogge, 2008). The total revenue and support for Fair Trade USA (formerly Transfair USA), the primary fair trade labeling organization in the United States, was US$20,271,633 in 2016 (Fair Trade USA and Good World Solutions, 2017).59 So, unlike Hollis and Pogge’s proposal, Global Health Impact certification does not require taxpayer support. It may also be easier to implement and less costly than many other governmental and nongovernmental initiatives. Finally, the Global Health Impact Index does not compete with other mechanisms for incentivizing access. Rather, people can use it along with all of the other methods canvassed here to bring even greater global health benefits.

3.6.  Objections Taking a broad enough view of what promotes public health, there is little reason to worry that pharmaceutical companies, researchers, or consumers can better direct their efforts elsewhere (Marmot and Wilkinson, 2006; Brock, 2014). Better access to existing drugs and technologies or more R&D on diseases affecting the poor cannot solve poor people’s greatest health problems on their own. War, natural disasters, polluted water, and inadequate food present some of the biggest obstacles to health in developing countries. Prevention and poverty alleviation are also incredibly important. Some antiretrovirals, for instance, do little for the poor when they lack adequate nutrition. Still, medicines help keep people alive and well enough to avoid disasters and access the clean water and nutrition that they need (just as clean water and adequate nutrition help people access medicines and ensure that they are effective). People should promote health in many other

Promoting Global Health  101 ways and support Global Health Impact initiatives. Global Health Impact campaigns can lead companies to come up with new drugs or treatment regimens that work well in the poorest places and improve access to clean water etc. to increase their drugs’ impacts. Whether or not new vaccines against HIV/​AIDS, malaria or TB, or better access to existing medicines, can do as much for people as vitamin A supplements or building a few more wells, people do not (and should not!) have to choose between them. If the people who need them can access effective medicines, that might even free up resources for other attempts to improve public health. In any case, people should support Global Health Impact campaigns and provide food, vitamin supplements, and wells.60 Having different certification levels can help ensure that the Global Health Impact rating system does not make it appear that pharmaceutical companies are doing better than they are (as the next chapter argues that most companies do not do enough to extend access on essential medicines to the global poor, and many companies also violate rights). Researchers can give only the best companies a “gold star” label and give others “silver” or “bronze” labels. To secure regulatory approval, however, it is essential that consumers cannot misinterpret the label as suggesting that particular products are good for their health. The FDA explicitly specifies that product labels cannot mislead consumers by suggesting that purchasing labeled products will improve their health. For this reason, perhaps researchers need a label design that omits the word health and that emphasizes the fact that the initiative will help the poor. Perhaps rather than “Global Health Impact–​Certified,” a label could read “Global Access Company” or “Equitable Access Company.” (Moreover, to prevent blowback, the Global Health Impact Organization should prohibit companies from using the label on products that may harm health.) A different worry is that companies can benefit from the Global Health Impact label even if they are not overall good corporate citizens. Some companies may benefit just because they are large or have large consumer product lines with successful products. Others manufacturing and distributing impactful drugs may lobby for patent protections and set high prices. Companies may also try to improve their rating on the Index by reducing investments into drugs for other pressing global health problems. Unless Global Health Impact certification considers companies’ behavior, it cannot stop them from acting unethically. Looking at companies’ drugs’ global health impact does not condone bad behavior. The Global Health Impact rating system aims to create the largest

102  The Global Health Impact Project possible incentive for extending access to essential medicines and fulfilling individuals’ rights to health. In doing so, it does not preclude competition from smaller companies, those without commercially successful products, or those without large consumer portfolios. In fact, some such companies do relatively well on the Index, and it at least improves their reputation (Hassoun, 2015c). The rating system does not incorporate everything, but (other things equal) companies’ scores fall if their lobbying and pricing policies constrain access or if they focus on less pressing health needs. Furthermore, researchers are expanding the Index to incorporate other major global health threats and evaluate different parts of the pharmaceutical supply chain.61 Still, it is important that everyone utilizing the Global Health Impact Index understands exactly what it does and does not mean—​it is not a general stamp of approval for good behavior. Other rating systems—​like the Access to Medicines Index—​focus on companies’ policies and commitments. The Global Health Impact Index focuses on outcomes to encourage companies to combat disability and save more lives.62 More pressingly, highly ranked companies may try to distract the public from their generally poor behavior in other arenas. Suppose, for instance, that another organization launched a campaign to get companies to stop fighting compulsory licensing in developing countries by lobbying US trade representatives. Companies might respond by holding a media event to promote their Global Health Impact status and undermine the campaign. Since companies control many resources, they would probably win a battle in the press. Companies hardly need a label, however, to hold a public relations event and undermine campaigns to get them to improve their practices. Companies can promote their charitable programs or even start new programs to get good publicity. Those involved in the attempt to get pharmaceutical companies to improve their practices should not blame each other if companies abuse their efforts. Rather, they should stand together. Eventually, an appropriately impartial and transparent non-​governmental group, like Oxfam International or Médecins Sans Frontières, may oversee the Global Health Impact label and help counter any industry pressure. Alternately, governments or an international organization, like the WHO, can provide the requisite oversight (as the US government does with the USDA organic label and the International Organization for Standardization does with the ISO 14000 environmental management standards, which help firms monitor their environment impact). I  suspect, however, that

Promoting Global Health  103 researchers should keep the Global Health Impact Organization firmly situated within academia for as long as possible because every organization has different priorities. Discussions with health policy makers suggest, for instance, that international organizations often manipulate data at different points during their funding cycles alternately to show need and impact (Hassoun, 2014b). The Global Health Impact Organization’s current home in the Institute for Justice and Wellbeing insulates it from political pressures and allows members of academia to work together with civil society to promote positive change. If other problems arise, the Global Health Impact Organization has institutionalized mechanisms and procedures for addressing them.63 Researchers from universities and civil society organizations from around the world, dedicated to measuring pharmaceutical products’ impact on global health to advance access to affordable medicines, develop and oversee the rating system. All the organization’s members administering the rating system accept a conflict of interest policy and agree to abide by its code of ethics. The organization has an advisory board to address unforeseen problems as they arise. It has also held several workshops to solicit feedback on the model from academia, civil society, and the pharmaceutical industry after launching it at the WHO in 2015. No rating system is perfect, but there is reason to believe this one can help promote health and human rights.

3.7. Conclusion This chapter suggested that collecting and analyzing global health data can help improve poor people’s access to essential drugs and technologies. To illustrate how data can help, it presented a new model synthesizing health systems data to evaluate medicines’ global health impact. It then suggested using this information to create incentives for positive change. It considered, for instance, an initiative to create a Global Health Impact label. Other ethical labels have a large impact, and given the large market in pharmaceutical technology, the prospects for a Global Health Impact label are good. Global Health Impact certification has advantages over, and complements, alternative mechanisms for addressing the access to essential medicines problem. The final chapter explains how to gather data on Global Health Impact initiatives and presents some preliminary evidence to support the labeling initiative, in particular. However, information on medicines’ global health

104  The Global Health Impact Project consequences is useful for many other reasons too. It can support policy and research as well as social activism. Policymakers can use the data to evaluate innovations and company efforts. Researchers can mine the data to locate global health impact’s most significant causes and consequences. This can help policymakers create, evaluate, and improve policies. Although data cannot solve all the world’s health problems, good data can make a significant difference in many people’s lives.

4 Individual Responsibility for Promoting Global Health 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 and Levine (2008, 16)

4.1. Introduction What can consumers do to improve global health?1 The last chapter suggested rating pharmaceutical companies based on their products’ global health impact (Hassoun, 2014a). The best companies, every year, might receive a license to use a Global Health Impact label on everything they make—​from lip balm to food supplements (global-​health-​impact.org/​new). Since Sanofi, for example, is highly rated, it might use a Global Health Impact label on Advil. If even a small percentage of consumers promote global health by buying Global Health Impact products, companies have substantial incentive to use this label (Hassoun, 2012a, 2012b, 2015c, 2016c). If Global Health Impact–​ labeled goods capture an additional 1% of the market in generic and consumer healthcare products, that creates an almost US$3 billion incentive for pharmaceutical companies to become Global Health Impact–​certified (Jaap, 2015; Visiongain, 2010; Hassoun, 2012a, 2012b, 2012c, 2015c, 2016c). If

Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

106  The Global Health Impact Project Global Health Impact labeling succeeds, it gives companies a reason to produce drugs that save millions of lives. If highly rated companies use a Global Health Impact label on their products, should consumers purchase goods from Global Health Impact–​ certified companies? Consider a straightforward argument from beneficence for buying goods from Global Health Impact–​certified companies. If the rating system is accurate and people purchase these goods, they help fulfill individuals’ rights to health. Consumers should promote positive change and help fulfill individuals’ rights to health. Thus, they should purchase goods from Global Health Impact–​certified companies. Some, however, may remain unconvinced. Hence, this chapter provides a new rights-​based argument for buying goods from Global Health Impact–​certified companies. We can reasonably expect only consumers with disposable income (the relatively wealthy in poor countries as well as those who are not extremely poor in rich countries) to support this initiative. So, this chapter focuses only on these consumers. It leaves this qualification largely implicit. There was a large public outcry when Martin Skreli’s company Turing Pharmaceuticals decided to purchase, and then dramatically increase the price of, pyrimethamine—​a drug that treats toxoplasmosis and provides a key component of one of the world’s most important anti-​malaria medicines. This was not an isolated incident. Recently, several companies have purchased older (sometimes generic) drugs solely to raise prices and increase profits. Is it acceptable for them to do so?2 If pharmaceutical companies are violating rights to access essential medicines, what does this mean for the rest of us? This chapter defends the Argument for Obligation: (1) pharmaceutical companies violate rights and (2) do not do enough to address the access to medicines issue, so (3) if the Global Health Impact initiative helps rectify these problems, people should generally purchase goods from certified companies. Although the Argument appears straightforward, I believe its details prove interesting. Again, the third chapter argued that if people buy goods from Global Health Impact–​certified companies, that will encourage companies to increase access to essential medicines at some length. Therefore, if this chapter’s Argument goes through, consumers should purchase goods from Global Health Impact–​certified companies if doing so becomes a realistic possibility. Moreover, Chapter 6 provides some preliminary empirical evidence to support this conclusion. Although one need not accept the Argument for Obligation to conclude that consumers should

Individual Responsibility  107 purchase Global Health Impact–​labeled goods, subsequent sections defend each premise in turn. The Argument for Obligation responds to facts about this nonideal actual world—​most importantly, the fact that others (e.g., states) have not fulfilled individuals’ rights to access essential medicines. Recall that states’ legal and political systems should secure their subjects’ human rights to health. They should invest in essential medicines’ R&D, subsidize providing these medicines, and so forth. Moreover, states and international organizations should refrain from creating agreements or laws that threaten access to essential medicines. Moreover, they should prohibit actions that interfere with access.3 People might not have to purchase things with Global Health Impact labels if states were doing what they should. However, states have failed to ensure that everyone can access essential medicines (and sometimes threaten access). So, other agents, including pharmaceutical companies and individuals, have secondary duties to assist in fulfilling rights. Moreover, no agent should make it difficult, or impossible, for people to fulfill their human right to health.4 Although this last claim may initially seem uncontroversial, the chapter suggests that it has significant consequences. In doing so, it illustrates how the human right to health has important implications for the moral status of everyday market transactions (though I will not attempt to explore all of these implications here).5 Finally, the Argument for Obligation should interest those broadly concerned about ethical consumption as well as human rights. Advocates can extend it to support other ethical consumption initiatives. Similar arguments might support boycotts, fair trade, sustainable forestry, and sweatshop-​free labeling initiatives, among other things.

4.2.  The Argument for Obligation’s First Premise This section defends the Argument for Obligation ’s first premise—​that pharmaceutical companies violate rights—​roughly, as follows. Pharmaceutical companies extend intellectual property rights to essential medicines around the world. Intellectual property rights to essential medicines allow companies to set prices for these medicines that make it difficult for many poor people to access them. They also prevent people from accessing these drugs in alternative ways (e.g., by reverse engineering and producing medicines under patent). When companies extend intellectual property rights to

108  The Global Health Impact Project essential medicines around the world and make it difficult for many poor people to access them, they violate rights. Consider each claim in turn. Pharmaceutical companies extend intellectual property rights to essential medicines around the world (that is, they increase the temporal and spatial scope of patent coverage in a variety of ways).6 They do this, in part, through international trade agreements.7 The World Trade Organization’s (WTO’s) Agreement on Trade-​ Related Aspects of Intellectual Property Rights (TRIPS) sets minimum standards for patent protection that, in many cases, constrain access to essential medicines (World Trade Organization, 2017). Many more recent trade agreements contain “TRIPS Plus” provisions that constrain access to essential medicines further (Médecins Sans Frontières, 2011).8 Moreover, pharmaceutical companies lobby developed-​ country governments to interpret these agreements restrictively and use political pressure to protect patents overseas (t’Hoen, 2002). Recall, for instance, what happened when South Africa passed its Medicines Act to encourage generic competition for AIDS medicine: many big pharmaceutical companies sued. Only after extensive negative media attention and extended negotiation did these companies withdraw their lawsuit, but South Africa did not go on to import generic medicines (Barnard, 2002; Steinbrook, 2007; World Trade Organization, 2017). More recently, South Africa came under attack for attempting to reform patent laws to allow generic competition to extend access to life-​saving drugs more broadly. Several pharmaceutical companies threatened to campaign against the reform even though it accords with TRIPS and other international agreements (De Wet, 2014). The companies suggested that the reform undermines South Africa’s ability to compete for international investment. South Africa’s health minister responded by saying “I am not using strong words, I am using appropriate words: this is genocide.”9 If the campaign delays the new law, millions may die young. At some pharmaceutical companies’ behest, the United States also uses political and diplomatic pressure and bilateral trade agreements “to undermine countries that produce generic medicines and/​or consider importing them” (Global Health Watch, 2005, 106).10 Recall, for instance, how pharmaceutical companies lobby the US trade representative to single out countries in its 301 Reports as not aggressive enough in enforcing foreign intellectual property rights (Office of the United States Trade Representative, 2017). When they do so, these countries potentially face trade sanctions. Moreover, pharmaceutical companies seek to extend their intellectual property rights on essential medicines within national borders. They patent as

Individual Responsibility  109 many aspects of their inventions as they can and secure multiple patents on the same aspects.11 They come up with slightly different drug formulations that allow them to “evergreen” their patents indefinitely.12 They develop and patent “me-​too” drugs that do not have major therapeutic advantages over existing drugs.13 They lobby regulatory authorities to extend their patents and make generics competitors pay to retest drugs to secure licenses on chemically identical generic medicines.14 They litigate extensively over expiring patents and seek special expedited-​approval, “priority review,” and patent extensions for essential medicines under the Orphan Drug Act and similar provisions (Center for Drug Evaluation and Research, 2019). The Orphan Drug Act gives companies a variety of benefits for developing drugs for rare conditions in the United States that may present large health problems elsewhere or only affect a few patients globally.15 Besides tax credits and other benefits, they get transferable rights to expedited review on a drug of choice (which may or may not be an essential medicine). In all these ways, companies extend their patents on essential medicines significantly.16 Intellectual property rights on essential medicines make it difficult for many poor people to access them. Theoretically, in a perfectly competitive market, companies only charge the marginal production cost for their products (Flynn et  al., 2009). Even in imperfectly competitive markets, competition drives down the prices companies secure (Flynn et  al., 2009). However, patents allow firms to secure monopoly rents. The profit-​ maximizing price in a monopoly setting exceeds the marginal production cost (Flynn et  al., 2009). In many poor countries, there is significant inequality. There is also a great deal of international inequality.17 So, economic theory predicts that companies will set prices that limit access both within and across nations (Chen and Ravallion, 2004; Flynn et al., 2009; Boldrin and Levine, 2008). That is, because there is a lot of inequality, companies often do best to set very high prices that only the affluent can afford. They do better to sell fewer doses at a very high price than to sell many doses at a very low price. At least without universal health coverage, many poor people in developing countries cannot access the medicines they need. And even when poor countries provide universal health coverage, medicines are often too expensive for their health systems to provide. Intellectual property rights also prevent generic competition. To see how this works in practice, consider how extending patent protection on essential medicines through the TRIPS agreement reduces generic competition around the world. Before TRIPS, generics companies in developing

110  The Global Health Impact Project countries could create and sell cheaper versions of many essential medicines, but the agreement restricts their ability to do so. TRIPS requires all countries to create minimum patent terms of 20 years, though the least-​developed countries do not have to fully implement the agreement until 2033 (World Trade Organization, 2017; Global Health Watch, 2005). Although the TRIPS agreement contains provisions allowing access to essential medicines, they do not suffice to overcome the barriers to access it imposes. 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, these countries have limited access to essential generic drugs (Barnard, 2002; Steinbrook, 2007; Joseph, 2001). 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 (World Trade Organization, 2012). Countries often find it hard to issue such licenses. Again, companies often lobby the United States to put pressure on other countries considering issuing compulsory licenses (t’Hoen, 2002; Bhuyan, 2018). Perhaps for these reasons, compulsory licensing a few years after the Doha Declaration declined significantly, and evidence of its efficacy is mixed (Beall and Kuhn, 2012; Beall et al., 2015; Lee and Son, 2017). TRIPS-​supported patent protection makes many essential medicines prohibitively expensive.18 Finally, when companies extend intellectual property rights around the world that make it difficult for many poor people to access essential medicines, they violate rights.19 Again, states plausibly bear primary responsibility for protecting and fulfilling human rights, but no agent should violate them.20 That is, no one should make it difficult, or impossible, for people to fulfill their human rights in the actual world.21 When companies lobby to extend patents and set high prices, they make it difficult, if not impossible, for people to access essential medicines that they have a right to access. So pharmaceutical companies violate rights. To put this another way, when companies create barriers for people trying to access the objects of their rights, they do not just fail to help these people; they actively interfere with their ability to secure the things to which they have rights. Against the background of other institutions’ failures to respect, protect, and fulfill individuals’ human rights to health, companies’ actions make it difficult, if not impossible, for many poor people to access essential medicines. This is a human rights violation

Individual Responsibility  111 and not just a failure to fulfill rights. The claim is not that companies fail to fulfill human rights’ obligations but that, insofar as companies’ actions pose a barrier for people accessing the objects of their rights, they violate rights. Still, consider a few objections to the claim that, in so acting, companies violate rights. First, note that violating rights need not harm. To violate rights, an agent need not make people, in any respect, worse off. Consider that someone who beats another person violates the person’s rights, even if someone else would have beaten that 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 them from accessing essential medicines. Companies need only extend intellectual property rights to essential medicines and set prices that make it difficult for many poor people to access these medicines. Still, consider the claim that companies do not make people worse off than they would otherwise be, for some insist that companies do not violate rights for this reason. Some argue that companies help people access essential medicines who could not otherwise do so because they do R&D on drugs addressing many pressing global health problems. Others point out that patents spur R&D that eventually (when prices fall) enable even the poorest to access essential medicines. Yet others maintain that removing patents decreases the incentive for companies to develop these medicines and, thus, harms those in future generations. Moreover, some argue that companies could not make as many drugs with less extensive intellectual property rights (Grabowski et al., 2002; Chaudhury et al., 2006; Moser, 2013). What follows challenges each claim in turn. First, note that patents on essential medicines may not make poor people better off than they would otherwise be. Patents stimulate R&D on medicines that make some people better off. Nevertheless, historical evidence suggests that patents are not particularly good at stimulating the R&D necessary to address many pressing global health problems. Few European countries had product patents until relatively recently (Boldrin and Levine, 2008, 241–​76; Bessen and Meurer, 2008). Several key innovator countries had relatively weak patent protection (Boldrin and Levine, 2008, 241–​76; Bessen and Meurer, 2008). Moreover, litigation results in dead-​weight loss (the resources spent litigating could be more productively invested in new drug development) (Bessen and Meurer 2008).

112  The Global Health Impact Project Patents, in general, do not spur the R&D needed to address many pressing global health problems.22 Traditional patents give pharmaceutical companies an incentive to create products that treat, but do not cure, rich patients’ chronic diseases. They can continue to sell such products to rich patients indefinitely. Companies have little incentive to address diseases that mainly affect the global poor. Poor people cannot pay much for essential medicines (Pogge, 2008). Even with patents, companies aiming to capitalize on the incentive the patents create develop few medicines targeting diseases that primarily afflict poor people. Of the 1,393 medicines developed between 1975 and 1999, only 13 targeted tropical diseases and, of these, two came from military research and five from veterinary research (Trouiller et  al., 2001, 946). From 2000 to 2011, of 850 new medicines registered, 37 were for neglected disease but only four were new chemical entries that secured worldwide marketing approval (Pedrique et al., 2013).23 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 medicines for some infectious diseases make them obsolete before prices fall enough to make them accessible (Laxminarayan et al., 2006; Choe, 2011). Without such extensive patents, companies have less incentive to develop essential medicines, but this might not undermine access to essential medicines in present or future generations. Companies do make some money from selling essential medicines. If there are no better ways to incentivize innovation, states should not eliminate patents. Still, there may be better ways to stimulate R&D. Recall, for instance, Hollis and Pogge’s proposal for creating a Health Impact Fund. Again, they suggest offering a second voluntary system where companies forgoing traditional patents can instead receive payment from the fund based on their products’ health impact (Hollis and Pogge, 2008). Others suggest an international agreement to fund R&D supported by, for example, prize funds that secure open access to resulting technology (Hubbard and Love, 2004; Love, 2011). Alternately, one can imagine state-​funded pharmaceutical R&D.24 Even if companies cannot make so many drugs with less extensive intellectual property rights, poor people who need essential medicines might fare better. Companies might not have the capacity to do the R&D they need to create as many medicines or sustain current production levels (given labor costs) if they did not secure such property or charge such high prices. However, this might not negatively affect

Individual Responsibility  113 their ability to provide essential medicines. Even if it does, other companies could create generic medicines more easily. Even though pharmaceutical companies lack responsibility for severe poverty’s existence and persistence, companies bear some responsibility for the fact that so many lack access to essential medicines. They try to extend intellectual property rights around the world and set prices that make it difficult for many people to access them.25 I do not think that anyone should alter the patent system significantly unless they can establish other good ways of incentivizing new innovation.26 Still, this system does not justify companies in extending patent protections further when the patents prevent some from accessing essential medicines. At least, they should not do so without providing these medicines in other ways. Granted, extending patents would not violate rights if states implemented different incentives for developing essential medicines or if poverty did not exist. But companies must consider their actions’ actual (foreseeable) consequences in the real world, not in some counterfactual or possible world. As long as companies do not have to seek intellectual property rights and set high prices, to fulfill other competing obligations, they should not do so. This is so even though they do not bear responsibility for every condition that leads to this rights violation. Companies do not have to prevent access to essential medicines (e.g., by setting high prices or imposing additional patent barriers) to help people access essential medicines. As the last chapter explained, companies can often lower prices for their medicines for the poor without sacrificing much. Companies might, for example, employ differential pricing. They have well-​ established ways of preventing lower-​priced medicines from making it back into developed-​country markets by parallel importation (Merck, 2018; Baer, 2001). And even though these are not perfectly effective, it strains credulity to maintain that companies cannot do much more to extend access in this (and other!) ways. Many essential medicines are for diseases prevalent only in developing countries. Even for diseases like HIV/​AIDS that exist in both developed and developing countries, the drugs used in developing countries are often lower quality than those used in richer countries (so the risk of widespread parallel importation is low). To combat parallel importation, companies can also provide different formulations in different packaging to make reimportation harder.27 Moreover, companies can extend access to essential medicines in many other ways (Kyle, 2010). Among other strategies, companies can collaborate with international procurement agencies to make drugs available at low prices in developing countries, participate in patent

114  The Global Health Impact Project pools, do more R&D on essential medicines, support efforts to create value-​ based reimbursement mechanisms that reward companies’ for their drugs’ impacts on global health rather than on the basis of consumers’ willingness to pay, and so forth (Zioannides-​Demos et al., 2002). To accept the preceding Argument, one only needs to agree that companies’ actions violate rights because they (foreseeably) make it difficult for many poor people to access essential medicines, and they do not need to do so to fulfill other obligations.28 Recall that, on the standard view of human rights obligations sketched in the first chapter, no agent should make it difficult, or impossible, for people to access their rights’ objects.29 Accepting this claim does not entail that people have a human right to maximal health, nor does it mean that companies must maximize the number who can access essential medicines.30 Companies violate rights even though they do R&D on essential medicines and extend access to them (e.g., through drug donation programs). The next section suggests that companies do not do enough to help people secure these medicines. But, even if I am wrong about this, they violate rights.31 Consider an analogy: One can justify breaking someone’s arm if that is necessary to save the person’s life. However, one cannot, normally, justify breaking someone’s arm if one could save that person’s life without breaking it. Similarly, companies cannot normally justify seeking property rights and setting prices that make it difficult for many poor people to access essential medicines by pointing out that they create and sell such medicines to these (or, more likely, other) people. They could sell these drugs at the much more reasonable prices free markets afford or do other things to help people secure access to them. The idea that pharmaceutical companies have to extend patent protection and set high prices on medicines for the poor to best promote global health is even less plausible than the argument that Tesla is justified in maintaining poor labor standards because it is reducing greenhouse gas emissions and, so, climate change (Hiltzik, 2018; Wong, 2017; Reuters, 2017).32 Finally, companies are violating the right to health even though they are only secondary duty bearers. States should ensure that everyone can access essential medicines at reasonable prices by creating good mechanisms for incentivizing new innovation and enforcing laws that ensure this access. Whether or not this requires modifying existing patent systems will depend on the costs and benefits of different regulatory regimes (Wilson, 2009, 2012, 2013).33 But whatever regime is optimal, states should not allow companies to erect barriers or set prices that pose significant threats to access. At least,

Individual Responsibility  115 states should not do so without helping people access the essential medicines they need in some other way. Unfortunately, states have failed to implement adequate compensatory mechanisms. So, companies cannot justifiably extend patents on essential medicines or set high prices that prevent access even if they are not violating their state’s intellectual property or pricing laws. Doing so violates rights because it makes it difficult or impossible for people to secure access to essential medicines when states fail to live up to their obligations. Moreover, even libertarians, who reject rights to access essential medicine, should agree that those extending intellectual property rights around the world violate rights. I have two reasons for believing libertarians should endorse this conclusion. First, consider an external reason that most libertarians probably reject but that I think follows from any plausible libertarian view. I believe we cannot justify patents on essential medicines if we accept the Lockean (libertarian) proviso. According to this proviso, no one can claim property rights in something without leaving enough and as good for others. People do not have “enough” when they die from easily preventable poverty-​related illnesses, though they could buy medicines if they had the money to do so.34 As noted, better ways to fund R&D on pressing global health problems exist. We might provide public funding for new drug development or implement a free market in pharmaceutical products (Hollis and Pogge, 2008, Ch. 6). Although the former may better promote access, libertarians may prefer the latter.35 Second, I believe that, according to libertarian doctrine, no one can justifiably constrain others’ ability to reinvent drugs or use drugs they have reinvented (Hollis and Pogge, 2008, Ch. 6). From a libertarian perspective, intellectual property rights unjustifiably prohibit others from reinventing, and then using, essential medicines under patent (Hollis and Pogge, 2008, Ch. 6). That is, they violate individuals’ basic libertarian rights.

4.3.  The Argument for Obligation’s Second Premise This section defends the Argument for Obligation’s second premise. It claims that pharmaceutical companies do not do enough to address the access to medicines issue since they causally contribute to the problem, benefit from it (and its causal determinants), are well-​placed to address it, and other potential duty bearers have not done enough to ameliorate it.

116  The Global Health Impact Project More precisely, this section defends the following argument:36 a) On the main accounts of responsibility in the literature, when other potential duty bearers fail to address a problem, any agent that (1) has (causally) contributed to the problem, (2) has benefited from it (or its causal determinants), or (3) is particularly well placed to address the problem should help do so (Hollis and Pogge, 2008, Ch. 6). 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 benefited from this problem (and its causal determinants). e) Pharmaceutical companies are particularly well placed to address this problem. On the main accounts of responsibility in the literature, it follows that pharmaceutical companies should help address the access to medicines problem (Wenar, 2007; Miller, 2006; Gosselin, 2009). I  include the constraint that they must merely “help” to recognize possibility’s limits and competing obligations. Still, 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 given its size and their ability to ameliorate it.37 So, they should do more to help people access these medicines. Before considering the preceding argument’s premises at some length, consider the claim that companies are not doing all they can, or should, do to address the access problem. To see this, consider what is perhaps the best-​ known pharmaceutical company philanthropic effort—​Merck’s Ivermectin donation program to combat river blindness, a neglected tropical disease that afflicts many in developing countries.38 Treatment prevents blindness and skin problems in infected individuals and stops the transmission of disease at the community level. Merck helps 250 million people per year access treatment (Merck, 2017). Communities benefit from preserving their members’ productivity. Merck created a separate corporate entity to build partnerships with country ministries of health and nongovernmental organizations (NGOs) and ensure that the distribution systems are in place to provide mass treatment at the community level.39 Moreover, the program has been ongoing since 1987. The company promised to provide the drug as long as required to eliminate the disease despite financial and reputational risks

Individual Responsibility  117 (e.g., when the firm discovered the drug had adverse effects when administered to patients coinfected with Loa loa).40 The partnerships Merck created help build poor countries’ health systems from the ground up—​training tens of thousands of community health workers and providing fellowships and jobs for high-​level staff. These health workers provide other benefits to people in their communities like vitamin A supplementation and treatment for coinfections. Today millions benefit from treatment, and Merck may even help eliminate river blindness eventually (Coyne and Berk, 2001). Despite the program’s great success, some critics worry that the company overstates its contribution, does not do enough R&D to address other pressing health problems, and uses resources from existing health systems without contributing enough to sustain their efforts into the future. Merck has benefited from this effort—​improving its corporate reputation, raising employee satisfaction, and securing tax incentives. Many other organizations have also invested significantly in the program’s success, for example, NGOs and the WHO through its onchocerciasis control and elimination programs. Without ongoing support, many countries’ health systems could not sustain the program, and they may likewise be unable to sustain other benefits they provide when it ends (Coyne and Berk, 2001; Hernando et al., 2016). Even setting such criticism aside, I believe Merck can do much more.41 Some researchers estimate that Merck’s donation program contributed $600  million worth of pills (the company claims it donated $3.8 billion) (Hernando et al., 2016). But Merck also paid a $950 million fine for illegally promoting Viagra, and simply by refraining from violating the law, it may have been able to increase its contribution significantly (Anderson, 2014). Moreover, Merck is ninth out of 16 companies in terms of the total Global Health Impact of its medicines for malaria, tuberculosis (TB), and HIV/​AIDs (and third for NTDs). It has one of the best HIV/​AIDS medicines, efavirenz; but, drugs for HIV/​AIDS must be used for a long time and there are many other effective medicines as well. By reducing the cost of efavirenz in developing countries and coming up with good malaria and TB medicines, Merck could do much more for global health. It is hard to believe that, as a company with more than 50 prescription medicines making about $40 billion in revenue (the fifth highest revenue pharmaceutical company), it could do not do so if it wanted (Statista, 2018a, 2018b). At least Merck could do more to make its drugs for neglected tropical diseases more widely available when doing so does not undermine its markets in developed countries. Merck might expand its donation program for praziquantel for schistosomiasis, for instance

118  The Global Health Impact Project (as Merck’s contribution here is limited—​unlike for its ivermectin donation program). Similar points apply to other companies, many of which invest significantly less in R&D than Merck; pharmaceutical companies, in general, rank the highest in terms of revenue of all Fortune 500 companies with average profit margins approaching 20% (Merck, 2018; US Government Accountability Office, 2017). Although the industry asserts that these profits are necessary to support R&D, companies spend a great deal on marketing (never mind on protecting patents). Moreover, much of their R&D efforts go not toward the world’s largest global health problems but toward the most profitable. Merck focuses most of its energy on cancer research, for instance. Its most recent blockbuster is an immunotherapy for cancer (though it also has some HIV/​ AIDs medicines and an Ebola vaccine under development) (Merck, 2015).42 So, it seems that pharmaceutical companies are not doing everything they can to address the access problem, but how can we make the case that they should help address this problem? Again, I argue as follows: a) On the main accounts of responsibility in the literature, when other potential duty bearers fail to address a problem, any agent that (1) has (causally) contributed to the problem, (2) has benefitted from it (or its causal determinants), or (3) is particularly well placed to address the problem should help do so (Hollis and Pogge, 2008, Ch. 6). 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 benefited from this problem (and its causal determinants). e) Pharmaceutical companies are particularly well placed to address this problem. I defend this argument this way. I take a) as read (Gosselin, 2009; Pogge, 2008; Wenar, 2007). In a world where millions suffer and die young every year because they cannot access essential drugs, b) is obvious. This chapter already defended c). It argued that pharmaceutical companies seek to extend intellectual property rights that allow them to set prices for essential medicines that make it difficult for many poor people to access them.43 It only remains to defend d) and e). I do not think companies must fulfill each condition to bear some responsibility. Still, I believe each plays a role in justly

Individual Responsibility  119 attributing responsibility. I will discuss the condition I find most compelling in the current context next (also see Brinks and Gauri, 2014).44 First, consider d).45 Pharmaceutical companies benefit from the fact that people need essential medicines; this is these products’ market. With less demand for these products then, on standard economic models, prices will fall. Companies will make less profit. Pharmaceutical companies also benefit from patents on essential medicines—​one of the access to medicines problem’s causal determinants.46 Companies can charge much more than production’s marginal cost for products under patent even when doing so does not ameliorate the access to medicines problem (Boldrin and Levine, 2008, 241–​76). Even those who doubt patents’ benefits to companies in general grant that patents bring large benefits to companies in this sector (Bessen and Meurer, 2008). Before defending e), consider the conception of responsibility for fulfilling human rights it embodies. Recall from the first chapter that, on the standard account of human rights obligations, responsibilities for fulfilling these rights fall primarily on individuals’ states (Nickel, 2007). Other agents (e.g., companies and other states) have secondary duties to assist when states fail in these obligations. Every agent should refrain from violating human rights (Nickel, 2007). The account of responsibility e) embodies supports the standard account: when states cannot, or do not, fulfill their obligations, others well placed to assist must do so (Wenar, 2007).47 Philosophical reflection supports this account. Even if, unlike negative rights, positive rights do not generate universal obligations, people may have a collective obligation to fulfill positive rights (contra O’Neill, 2005).48 In either case, efficiency considerations plausibly govern responsibility’s practical division absent other pertinent moral considerations.49 That is, it matters whether agents are well placed to carry out the obligations correlative to positive rights in assigning responsibility for fulfilling these obligations. This is particularly plausible in institutional contexts when considering how to divide fundamental (non-​remedial) rights and responsibilities.50 Plausibly, those who are well placed should help fulfill rights even if others must compensate them for their efforts. At least, they should help fulfill rights when doing so does not require violating other moral requirements (though perhaps states should reimburse companies for their efforts using money states collect through fair taxation).51 The agreement embodied in international human rights law strikes me as one efficient, and reasonably fair, way

120  The Global Health Impact Project to assign responsibility for fulfilling the human right to health in practice (Wolff, 2012b).52 On the standard account, since other potential duty bearers have failed to address the access to medicines problem, pharmaceutical companies should help address it (Lee and Hunt, 2012). They are particularly well placed to do so.53 Pharmaceutical companies do R&D on new drugs and usually control access to the resulting technology (Hassoun, 2012b). They have the R&D infrastructure and supply chains in place to help people access these medicines.54 Moreover, the monopoly protection their inventions receive (via patents) gives these companies wide leeway to set trade terms for their technologies.55 If the preceding arguments go through, pharmaceutical companies should help address the access problem, but consider several qualifications implicit in this conclusion’s defense. First, this conclusion follows only if one of the main accounts of responsibility in the literature is correct (though I gave some reason to endorse the third account suggested earlier, on which agents well placed to fulfill human rights have some responsibility for doing so). Second, pharmaceutical companies need only help address the access problem in light of facts about this nonideal world. It might be better if pharmaceutical companies were not so aptly placed and did not contribute to, or benefit from, the access problem. Unfortunately, this world is far from perfect. Other agents, including well-​off states, should also help fulfill rights on all the main accounts of responsibility, and states bear the primary obligation to fulfill rights. Nevertheless, pharmaceutical companies, at least, have backup duties to fill the governance gap even if states must compensate companies for their efforts. Saying these companies have to help fulfill individuals’ rights to health does not amount to dumping the duty to fulfill rights on (i.e., I am not unjustifiably ascribing responsibility to) pharmaceutical companies, in particular (Voigt, 2015; Buchanan, 2009, 221). Pharmaceutical companies, as opposed to other agents, are often particularly well suited to address pressing global health problems. In fact, few other agents can address these problems in the short term.56 But other agents who are well placed to do so also have a role to play in fulfilling rights. Organizations like the Global Fund and Gates Foundation, for instance, also have great capacities and experience in extending access to essential medicines around the world (Global Fund, 2015a; International Federation of Pharmaceutical Manufacturers & Associations, 2013a, 2013b). Whether an agent is well placed to fulfill rights

Individual Responsibility  121 does not just depend on its having the resources with which to purchase and distribute medicines. Arguably, supply chains and experience in the industry matter even more. Still, those with the resources to do so may have to subsidize companies’, and other organizations’, efforts.57

4.4.  The Argument for Obligation’s Third Premise The last two sections defended the Argument for Obligation’s first two premises, and this section defends its third, namely that people should generally purchase goods from Global Health Impact–​certified companies if, by doing so, they encourage pharmaceutical companies (to stop violating rights and help people access essential medicines). Previous chapters argued that buying goods from Global Health Impact–​certified companies encourages them to stop violating rights and help people access essential medicines. Moreover, the last chapter considers how to gather empirical evidence to buttress this conclusion. Insofar as companies stop violating rights by preventing access to essential medicines or contribute to alleviating the access problem, their scores on the Global Health Impact Index increase. If even a small proportion of consumers purchase Global Health Impact goods, that creates a large incentive for companies to improve their scores on the Index. It should follow that people must generally purchase goods from Global Health Impact–​ certified companies. The more general claim that people should usually consume in ways that encourage companies to stop violating rights and start living up to their moral obligations entails the Argument for Obligation’s third premise. People should consume in these ways not only to promote positive change but also to refrain from supporting companies that are failing morally and compensate for doing so. Let me explain. Plausibly, people can consume in ways that merely respect just institutions’ rules. According to the institutionalist thesis, people can generally do what they want within just rules. Good institutions should provide rules within which people can make choices about, for instance, what to consume (Murphy, 1998). Individual states (and perhaps international institutions) should prohibit, or discourage, consumption that violates, or makes it difficult to fulfill, important moral requirements. Still, people can generally consume whatever they want within these constraints.58

122  The Global Health Impact Project In this nonideal world, however, consumers are not free to purchase whatever they want. Many states do not prohibit morally impermissible consumption. So, consumers should refrain from engaging in it. They should not discriminate by, for instance, refusing to buy from minority ethnic or racial groups (Hussain, 2012). Similarly, suppose states effectively prohibited companies from violating rights and required them to help people access essential medicines. Then, consumers might not have to encourage companies to stop violating rights and start living up to their obligations. In this world, people should at least do so when it does not cost too much and they lack sufficiently weighty competing moral obligations.59 Consider why people should encourage companies to stop violating and live up to their human rights obligations by buying goods from Global Health Impact–​certified companies, in particular. Consumers have played a role in sustaining pharmaceutical companies that violate rights and do not do enough to help people access essential medicines (henceforth companies that fail morally) by buying their products. In some cases, people cannot refrain from doing so because they bear such significant (moral) costs or lack better options.60 People should not normally purchase less effective drugs for serious problems just because they have a Global Health Impact label. However, even many essential medical products, including those under patent, have reasonable competitors.61 Companies also make many inessential products—​like lip balm and food supplements. So, at least when a reasonable alternative exists, and refraining from doing so does not require sacrificing much, consumers bear some responsibility for supporting companies that are failing morally.62 Although people have different degrees of responsibility for, and should generally refrain from, supporting companies that are failing morally, they must still compensate for doing so.63 How much consumers will have to do likely depends on the degree to which they support these companies, what good options for encouraging companies to stop violating rights and start living up to their obligations exist, what else consumers are doing, and so forth. When people wrongly support these companies, they just have an additional reason to compensate them for doing so.64 Partly because consumption can make a difference to how companies fare, people should encourage companies to stop violating rights and help people access essential medicines. They can do so by buying goods from Global Health Impact–​certified companies. Consumers have a large impact. No single individual’s purchases affect companies much, but collectively

Individual Responsibility  123 consumers enable them to do what they do. Consumers are, plausibly, collectively responsible for their (collective) consumption’s negative impact. Consumers have collective responsibility for this reason: individuals cannot affect significant change alone simply by refraining from consuming the things pharmaceutical companies make. But consumers can make a difference collectively. They can, for instance, buy goods from Global Health Impact–​certified companies. Still, responsibility for changing these practices eventually comes down (distributively) to individuals.65 One might grant that people have prima facie collective obligations to purchase things with Global Health Impact labels but maintain that if states do not force them to comply with these obligations, individuals need not do so. One might suggest that people face a multiperson prisoner’s dilemma, or tragedy of the commons, when they consider whether to purchase Global Health Impact–​certified goods. When individuals purchase these goods, they have negligible impact; whether or not they purchase things with Global Health Impact labels makes no difference whatsoever to whether or not anyone can access essential medicines. So individuals do best to allow others to fulfill the obligation. This is so even if they care that, together, they fulfill their prima facie collective obligation. After all, there is usually a premium associated with purchasing labeled goods. Companies raise prices in response to greater demand. Moreover, consumers might slightly prefer to purchase other goods if it were not for the label. Even if individuals should assume that enough people will purchase Global Health Impact–​labeled goods to make a significant difference, perhaps they have no reason to contribute without coercively enforced laws requiring that they do so. Although I will challenge the narrow way of thinking about what individuals have reason to do in the preceding Argument in a moment, note first that there exists good evidence that firms, in actual markets, register and respond to individual purchases. Many large corporations, like Walmart, have checkout machines that automatically send a request to their factories to replace every item bought (Gallaugher, 2010). I cannot stress this observation’s importance enough.66 Individuals’ purchases do make a difference.67 Given the cost, pharmaceutical companies need a large incentive to develop new drugs, but firms should respond to the exact dollar amount they calculate that their investments, or policies, bring in extra sales. Even when individual purchases do not affect firms’ behavior, people have other ways to avoid the tragedy of the commons than via coercive laws. There are no laws that force people to discharge their prima facie collective

124  The Global Health Impact Project obligations in the face of such tragedies. Everyone can avoid tragedy, however, if individuals exercise their moral imaginations. Individuals need only reject the background presumption that they need not help fulfill a prima facie collective obligation when they face a tragedy of the commons (Ostrom, 1990). At least, individuals should endorse the presumption that they should contribute in cases where even a small number make a difference and few, if any, can free-​ride on others’ efforts without affecting the outcome. Together people may change moral norms and create a social movement to better fulfill individuals’ rights to health. Many people maintain that states should help everyone discharge their collective obligations because coercive enforcement gives individuals’ freedom under just states’ rules. This is, however, only partially true. For states to help people discharge their collective obligations, they must require individuals to do their part to fulfill them (e.g., to abide by coercively enforced taxation and redistribution policies). Still, suppose states enforce solutions to collective action problems. They plausibly leave more room for individual freedom than many alternative ways to divide responsibility for fulfilling collective obligations. Consider how this rationale for endorsing coercive enforcement can support my preferred solution to the collective action problem at issue.68 This rationale suggests that individuals’ moral obligations to purchase Global Health Impact–​certified goods are imperfect. Individuals should receive their fair share of the leeway. So suppose not everyone needs to contribute to, together, do what they have to do to extend access to essential medicines by buying goods with Global Health Impact labels. Then, individuals should not all have to contribute all the time. However, each person should get his or her fair share of relief. Suppose it would suffice if everyone purchased Global Health Impact–​labeled goods 80% of the time (or whatever). Then everyone should do so at least 80% of the time (or whatever). It would not be fair for some to have to purchase Global Health Impact–​ labeled goods 60% of the time, while others have to do so 100% of the time. At least, it would be unfair setting aside any morally relevant differences between individuals (e.g., the fact that some can afford to do much more to help). Dividing responsibility this way plausibly preserves more freedom, more fairly, than having states decide who should help. Financing enforcement through states’ highly imperfect regulatory and tax systems is expensive and inequitable. At least, as long as someone’s psychology does not

Individual Responsibility  125 compel that person to free-​ride on others’ efforts in fulfilling prima facie collective obligations, they should not do so.69 Consumers may have to do other things to fulfill their moral obligations and avoid, or compensate for, supporting companies that fail morally along with purchasing goods from Global Health Impact–​certified companies.70 People may have to both purchase things with Global Health Impact labels and do other things (like give to charity).71 One may not have to purchase goods from Global Health Impact–​certified companies if one cannot do so and give to charity (or whatever) and must make a choice between these things. Still, some argument is necessary to establish that one must make such a choice. Alternatively, one must provide another justification for not doing both things. The fact that one could do something else does not provide this justification on its own. Even if one can do something better, one should support Global Health Impact initiatives if one does not do better and has not otherwise done enough. Consider an analogy. Suppose you come across a baby stuck on a lifeboat all alone in a shallow pond. You should rescue the baby even if you can do something else equally urgent and effective to help the baby—​like give it medicine to treat a serious heart problem. Pointing out that you can do something else to fulfill the baby’s right to health only establishes that you should do that too (rescue the baby then administer the medicine or vice versa),72 unless, of course, there is a reason why you cannot, or do not have to, do both things. You might argue, for instance, that you have already done your part in fulfilling the collective obligation to the baby. If consumers give companies an incentive to create new vaccines against malaria, TB, or HIV/​AIDS or to extend access to existing medicines by purchasing Global Health Impact–​labeled goods, that might do as much for the poor as building schools or digging a few more wells. A Global Health Impact certification and labeling initiative might lead companies to come up with new treatment regimens that work in the poorest places or even to improve access to clean water to increase their medicines’ effectiveness. Buying things with Global Health Impact labels is plausibly particularly effective in getting companies to help people access essential medicines. The Global Health Impact Index measures the extent to which companies extend access. Moreover, the Index also creates incentives for companies to stop violating rights. It penalizes them for any bad behavior that negatively impacts access to essential medicines.73 People can also support many other good causes and ethical consumption initiatives.

126  The Global Health Impact Project

4.5. Conclusion This chapter argued that (1) pharmaceutical companies violate rights and (2) do not do enough to address the access to medicines issue, so (3) if the Global Health Impact initiative helps rectify these problems, people should generally purchase goods from Global Health Impact–​certified companies. Given how this chapter defended the Argument for Obligation’s first premise, even libertarians should endorse this conclusion. This Argument responds to facts about this nonideal world. Its conclusion holds, for example, only insofar as states do not effectively fulfill everyone’s right to access essential medicine and there no other conflicting rights or obligations at issue. The third chapter argued that a Global Health Impact label will encourage companies to improve access to essential medicines, and they can also benefit from the label if they refrain from violating rights. Moreover, Chapter 6 provides some preliminary evidence to support the labeling initiative and explains how to gather more evidence. If these Arguments succeed, 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 do not do enough to help people access essential medicines. By buying goods from Global Health Impact–​certified companies, they may also help millions avoid premature death and disability.

PART 3

ET HIC A L C ON SUM P T ION A ND EXPE R IME N TA L P OLI T ICA L PHILO SOPH Y Efforts to promote ethical consumption are under fire—​critics argue that consumers do not need to purchase products with ethical labels because ethical consumption is ineffective, unsustainable, and even counterproductive (Hussain, 2012; Kurjanska and Risse, 2008; Sweeney and Killoran-​McKibbin, 2016; Mitchell, 2016; Okma et al., 2015; Ponte and Richey, 2014; Pinto, 2017; Dadush, 2010; Kenworthy, 2014).1 The last section presented several ways to enhance global health by evaluating pharmaceutical products’ impact on the global disease burden. Among other things, it defended a new Global Health Impact labeling initiative and argued that consumers should support it if it encourages companies to respect rights and start living up to their obligations. The book’s final section considers, what I believe are, the most pressing objections to this conclusion and explains how to gather more evidence to support the labeling initiative. Here, I lay the groundwork by considering some major challenges to ethical consumption efforts that might provide models for a Global Health Impact campaign. I consider two broad classes of concern. First, some worry that those who support ethical consumption do not pursue the correct goals in the right ways (Hussain, 2012). The most interesting objections focus on the limits of consumption for bringing about structural change via appropriately democratic processes (Dadush, 2010; Stole, 2008). Second, some worry about ethical consumption campaigns’ effectiveness and sustainability (Kurjanska and Risse, 2008; Valkila et al., 2010). Although critics object to most kinds of ethical consumption in each of these ways, in each section, I focus on the most serious worries about each campaign. I then consider whether the worries apply to the Global Health Impact campaign. I explain how the preceding chapters’ arguments avoid some concerns. Subsequent chapters address the remaining

128  Ethical Consumption and Political Philosophy worries. Although they focus primarily on the case for purchasing products from Global Health Impact–​certified companies, the arguments bear much more broadly on debates about ethical consumption (Hassoun, 2015b; Hussain, 2012; Christiano, 2016a).

I.1.  Are the Standards Ethical Consumption Campaigns Set Acceptable? There are many direct-​to-​consumer ethical labeling efforts—​and, in almost every case, someone questions their aims or procedures. Some labels certify goods as sweatshop-​and child labor–​free, energy-​efficient, sustainable forestry, conflict-​free, not tested on animals, and so forth (Fairtrade Labelling Organizations International, 2018; EnergyStar, 2017; GoodWeave International, 2015). Others promote companies or outcomes as opposed to products or processes. (RED) and Pink labels, for instance, promote research into diseases like malaria, tuberculosis, HIV/​AIDS, and breast cancer (Global Fund, 2017; Breast Cancer Research Foundation, 2017a). Many other ethical consumption initiatives exist as well, but, almost invariably, some critics worry about whether they achieve their ends in the right ways (Ehrenreich, 2001; Think Before You Pink, 2002b; Jagger, 2017; Westervelt, 2011; Wald, 2009; Shogren, 2009; McMahon, 2001; Stevenson, 1994; Entine, 1995). Consider recent criticism of (RED) as it most closely resembles the Global Health Impact proposal—​again, (RED) is a corporate philanthropy system in which companies agree to make one product red and donate some profits to the Global Fund (Sweeney and Killoran-​McKibbin, 2016; Sheehan and Berg, 2015; King and Busa, 2017; Dadush, 2010). According to their website, when people buy (RED) products, up to 50% of the purchase price goes to the Global Fund. By 2016, (RED) had contributed US$500 million to support the Global Fund (Global Fund, 2017). The money is used to finance HIV/​ AIDS grants in Ghana, South Africa, Kenya, Swaziland, Lesotho, Tanzania, Rwanda, and Zambia, impacting more than 90 million people’s lives (Global Fund, 2017). These funds support prevention efforts; help people secure HIV testing, counseling, and treatment; and provide care for children orphaned by AIDS (Global Fund, 2015b). Critics charge that (RED) cloaks corporate greed in philanthropy and prevents people from focusing on structural injustice (Frazier, 2007; Rosenman, 2007; O’Manique and Labonte, 2008). Some worry that (RED)

Ethical Consumption and Political Philosophy  129 lacks transparency and a clear connection between the products carrying the (RED) label and HIV/​AIDS (Dadush, 2010). Others object that some companies get a better deal than others and that (RED) does not prevent the Global Fund from shifting funds to other priorities or require that it target countries suffering the most from the AIDS epidemic (Nixon, 2008). Moreover, critics point out that many of those who produce (RED) products suffer from the very conditions the campaign is supposed to address. Some worry that the current model pays pharma companies that do not reduce prices a lot for their medicines (Dadush, 2010; Kenworthy, 2014; Perrone, 2006). By “relying on glamour-​infused compassionate consumption to alleviate suffering, [critics charge] Red in fact obscures (and enables) the very inequality and injustice-​generating forces that produce suffering” (Dadush, 2010, 1302; see also Richey and Ponte, 2006). “Businesses may leverage the existence of dire social problems to improve their public images and profits while distracting attention from their connections . . . to . . . these social problems” (Stole, 2008, 21). Many think that there is something perverse about trying to improve global health by supporting companies and letting them profit from poverty (Stole, 2008). Perhaps the most pressing worry is that (RED) cannot bring about the right structural changes through fair democratic processes (Kenworthy, 2014; Richey and Ponte 2008). Those concerned about structural change often argue that people should not vote with their dollars but should engage in alternative forms of advocacy and activism. Some believe people should give their money to charity or engage in political action instead of engaging in “ethical” consumption. And, although I know of no one who has provided empirical evidence to support the worry, critics suggest that those contributing to efforts like (RED) may be less likely to do these things because, for example, they think they have already done their part (Dadush, 2010; Eikenberry, 2009). Alternately, some argue, people may do less because “philanthropy becomes depoliticized, stripped of its critical, social change potential . . . consumption philanthropy stabilizes, more than changes, the system (the market) that some . . . argue [cause] . . . the poverty, disease, and environmental destruction philanthropists hope to eradicate” (Eikenberry, 2009). These critics suggest refocusing efforts on bringing about change through democratic processes. They argue that (RED) is “selling and legitimizing the privatization and commercialization of social service work, the work that in liberal democratic theory was at the heart of modern governance” (Stole, 2008, 23). So ethical consumption may shift responsibility away from

130  Ethical Consumption and Political Philosophy the state and toward the private sector (O’Manique and Labonte, 2008; Kim, 2006; Dadush, 2010). Moreover, critics hypothesize that people demand less from governments when they support positive change through ethical consumption. “Politicians (in the name of consumers) may . . . cut aid budgets to finance yet more tax breaks for the rich, since Product RED takes care of aid. Thus, indirectly, Product RED may be used to de-​legitimize taxation and redistribution through the public purse” (Richey and Ponte, 2006, 22). Many object to the Buy Pink campaign (to get companies to donate to breast cancer research, awareness, and support programs) for similar reasons—​they do not believe the campaign employs good processes to achieve worthwhile ends. Critics argue that the Susan G. Komen Foundation should put much more emphasis on prevention and accessible treatment than on getting women to get mammograms and paying for new pharmaceutical R&D (Begley and Roberts, 2012; Eikenberry, 2009). Some believe the foundation should pay for cancer treatment instead (Think Before You Pink, 2002a; Begley and Roberts, 2012; Horne, 2013). The Think Before You Pink campaign “calls for more transparency and accountability by companies that take part in breast cancer fundraising, and encourages consumers to ask critical questions about pink ribbon promotions” (Think Before You Pink, 2002a). Critics argue that individual contributions do not make a difference as people do not know who gets the money or what it does. They believe the label is “pinkwashing” companies (Ehrenreich, 2001; Think Before You Pink, 2002b; Westervelt, 2011; Carter, 2015).2 Moreover, critics worry that Pink products contain parabens, recombinant bovine growth hormone, phthalates, polycyclic aromatic hydrocarbons, and other chemicals that cause cancer or other social and environmental problems (Think Before You Pink, 2002a, 2002b; Pinto, 2017; Orenstein, 2013; Horne, 2013). Some believe that some contentious Pink policies are political (Swissler, 2002).3 They do not like the fact that the Pink campaign lobbies lawmakers (Alexander, 2008). Others worry that board members have undisclosed conflicts of interest. Finally, some argue that “the emphasis on consuming as a way of raising money—​shopping for the cure—​trades on the most conventional expectations of women rather than on their capacity for social action” (Leopold, 2001). These people think buying Pink is a distraction. Such ethical consumption campaigns may “numb consumers . . . resulting in cause-​fatigue” (Dadush, 2010).4 This critique lies behind the claim that women should not support “a culture of pink kitsch” (Ehrenreich, 2001). Critics suggest alternative ways to achieve the same objectives (e.g., giving to charity or supporting

Ethical Consumption and Political Philosophy  131 research efforts directly). Some believe government regulation is necessary to ensure charities and companies with ethical consumption campaigns disclose the “terms of existing co-​venture arrangements” (Horne, 2013, 249). Moreover, other efforts to promote ethical consumption—​ from 50 Cent’s SK drink that donates to the World Food Program to fair trade and GoodWeave International—​face similar criticism (Sylla, 2014; Fairtrade Labelling Organizations International, 2017; GoodWeave International, 2015). Many worry about corporatizing consumption, and some suggest that ethical labels undermine efforts to combat “corporate exploitation of human suffering” (Daley, 2013, 379; Horne, 2013, 232). They believe ethical consumption campaigns embody problematic “ideas about the proper role of state and non-​state actors” making promoting global health and “development appear simplified, manageable and marketable” (Okma et  al., 2015; Ponte and Richey, 2014). Critics worry that such initiatives allow corporations with “their self-​interested incentives, to wield considerable influence in the pursuit of a particular cause” (Horne, 2013, 230). They charge that attempts to promote ethical consumption amount to “post-​political governance” where “cooperation with business displaces regulation of business by government” (Foster, 2014, 246; Garsten and Jacobsson, 2011, 430; Wirgau et al., 2010; Horne, 2013). Some critics even accuse ethical consumption efforts of “humanitarian fetishism,” suggesting that they do not equitably address the root causes of the problems people face and, instead, amount to little more than neocolonialism (Kenworthy, 2014, 473; O’Manique and Labonte, 2008). They charge that “subjects are subtly directed away from state-​based responses to problems of poverty and ill health, and towards more individualized, enterprising, and market-​mediated forms of social aid” (Mitchell, 2016, 288). Underlying many of these worries is a more general worry about charitable efforts to promote positive change (not only through consumption but in other ways as well). Many view charity efforts as moving matters better suited for public deliberation into the private, market domain (Foster, 2014; Kenworthy, 2014). As Kim (2006) put it: “In this [corporate consumerism] universe, there are no states, no rights to health care. . . . In the place of anything resembling citizenship we have consumer choices, ‘innovation’ and, above all, brand marketing.” Critics ask, “Is consumption an exciting new form of citizenship? Or is it a sign of how corroded citizenship has become that shopping is the closest many of us are willing to come to worrying about labor laws, trade agreements, agricultural policy—​about good oldfashioned

132  Ethical Consumption and Political Philosophy politics?”—​implying that it is the latter and that people need to put responsibility back on their states (Giridharadas, 2009). Insofar as charitable efforts put promoting global health and development in the private domain, critics argue, they give some too much say about matters of common concern (Reich, 2011). These initiatives divide “those who believe in the unique power of the private sector, the market, and the individual to provide innovate solutions for advancing public welfare, and those who feel that this duty belongs to and is best carried out by the state” (Dadush, 2010, 1312). Because consumption, in particular, relies on the use of market power, those who have more money have more influence. In light of such worries, Thomas Christiano, Waheed Hussain, and others have recently offered sustained philosophical arguments that ethical consumption must be appropriately democratic (Hussain, 2012; Christiano, 2016a, 2016b; Sweeney and Killoran-​McKibbin, 2016). Hussain believes that people should try to resolve disagreement about the common good in democratic fora. Moreover, both Hussain and Christiano maintain that people should always consume democratically (though they have different ways of understanding exactly what this requires) (Hussain, 2012; Christiano, 2016a, 2016b).5 Concern about particular ethical consumption campaigns may reflect underlying disagreements about how consumers should use their basic market power within, and beyond, liberal democratic societies. Pointing to existing states’ failures to address the problems such campaigns seek to ameliorate may do little to alleviate this concern.

I.2.  Are Ethical Consumption Campaigns Effective and Sustainable? Other criticism of ethical labeling efforts focus on their effectiveness and sustainability (Ehrenreich, 2001; Think Before You Pink, 2002b; Wald, 2009; Shogren, 2009; McMahon, 2001; Stevenson, 1994; Entine, 1995). People worry that many kinds of ethical consumption—​from fair trade and organic to cruelty-​free—​are either ineffective or unsustainable (Sylla, 2014).6 Consider, first, the best-​known effort to promote ethical consumption—​ fair trade—​because researchers have collected significant data about the campaign’s effectiveness (Barham et  al., 2011). As the World Fair Trade Organization and several other fair trade networks define it:

Ethical Consumption and Political Philosophy  133 Fair Trade is a trading partnership, based on dialogue, transparency and respect, that seeks greater equity in international trade. It contributes to sustainable development by offering better trading conditions to, and securing the rights of, marginalized producers and workers—​especially in the South. (World Fair Trade Organization, 2015)

Strong evidence suggests that fair trade programs benefit the poor (Raynolds, 2002; Bacon, 2005; Weber, 2011; Elder et al., 2012; Ruben and Fort, 2012; Wilson, 2010; Bassett, 2010; Chiputwa et al., 2015). Fair trade farmers benefit from better access to training, credit, and support programs (Murray et al., 2003; Bacon, 2005). Participating in fair trade cooperatives can help farmers develop their organizational capacities to create better markets for their goods (Raynolds, 2002; Calo and Wise, 2005; Milford, 2004, 76; Ronchi, 2002; Bacon, 2005; Taylor, 2002; Imhof and Lee, 2007). Such cooperatives give farmers essential information and bargaining power and improve welfare by providing education and credit (Milford, 2004). Fair trade farmers are also less vulnerable to shocks, and participating in fair trade networks can improve gender equality (Bassett, 2010; Wilson, 2010). Many researchers find that the poor benefit from higher prices for fair trade goods (McMahon, 2001; Chiputwa et al., 2015). Fair trade coffee producers often make more than their competitors (Imhof and Lee, 2007). Some evidence even suggests that fair trade farmers can do better than those who try to secure organic or other sustainability labels (Calo and Wise, 2005; Milford, 2004; Ronchi, 2002; Bacon, 2005; Taylor, 2002; Imhof and Lee, 2007; Chiputwa et al., 2015). The higher prices fair trade provides often help poor people reduce their vulnerability to market crises and retain their lands (Bacon, 2005; Wilson, 2010). Some researchers find that fair trade farmers can better educate their children and that fair trade can help them meet their basic needs for things like adequate water, food, and housing (Murray et al., 2003; Bacon, 2005). Fair trade can help farmers secure better job prospects, increase their social capital, acquire valuable land, and secure larger animal stocks as well as other agricultural inputs (Bacon, 2005; Elder et al., 2012; Ruben and Fort, 2012). For a nice review of the evidence regarding fair trade’s effects, see Dragusanu et al. (2014). Still, many criticize fair trade impact evaluations. Some criticize survey evidence; others worry that even the more rigorous evaluations do not explain fair trade farmers’ success (White and Bamberger, 2008). Many studies

134  Ethical Consumption and Political Philosophy fail to control for factors that could explain their results. In any case, the impact evaluations certainly vary in breadth and quality (Cramer et al., 2014). However, researchers conduct increasingly sophisticated studies. Some even provide quasi-​ experimental evaluations. Consider a study commissioned by the Center for International Development Issues in the Netherlands (Ruben, 2008). Researchers comprehensively evaluated eight fair trade programs looking at fair trade’s consequences in different locations. They tried to establish causation with propensity score matching. The researchers found that most programs increased participants’ access to food and credit. Many fair trade farmers also invest more in housing, land, and education than otherwise equivalent farmers not engaged in fair trade investment. A few studies found that fair trade increased market prices and wages in a larger region once fair trade products captured a large market segment (Claar and Haight, 2015; Sylla, 2014).7 Even when people are convinced that ethical consumption campaigns are acceptable and effective, some worry about their sustainability (Valkila et al., 2010; Beuchelt and Zeller, 2011; Minten et al., 2015). Some campaigns have difficulty monitoring compliance with their standards or do not try hard enough to do so. The Kimberley Process certifies diamonds as conflict-​free. Countries agree to trade only with members implementing and enforcing a system to eliminate conflict diamonds from their markets (Kimberley Process, 2017). Exports and imports must have tamper-​resistant containers, and members must collect data on their production and trade in rough diamonds. They must also issue certificates for diamonds meeting the conditions set out in the agreement. However, critics worry about weak monitoring and controls and the fact that the diamond industry self-​ regulates. Moreover, some worry that smugglers bring diamonds with the labels in from war-​torn countries as the monitoring systems lack security (Global Witness, 2005).8 More recently, others have promised standards that are more stringent, for example, Brilliant Earth certifies diamonds as “Beyond Conflict-​Free” (Brilliant Earth, 2016). However, insufficient evidence exists to determine exactly how it enforces or verifies its standards, and I believe it amounts to little more than an advertising campaign to improve DeBeers’ image.9 Similar points apply to other systems for certifying minerals as conflict free. Relatedly, some worry that ethical consumption campaigns are unsustainable because competing labels proliferate. Large industries (e.g., commercial coffee production) could potentially benefit from knockoff labels.

Ethical Consumption and Political Philosophy  135 Fortunately, fair trade organizations have not had to devote great resources to protecting their label’s integrity (Sinclair, 2009). However, some other labels have not fared so well. When people introduced the first organic label, for instance, labels began to proliferate in the United States. Regulation may help insure sustainability. When consumers started to worry about organic labels’ integrity, the government stepped in to set standards for a US Department of Agriculture (USDA) organic label (Ko, 2017). According to the FAO/​WHO Codex Alimentarius Commission, Organic agriculture is a holistic production management system which promotes and enhances agro-​ecosystem health, including biodiversity, biological cycles, and soil biological activity. It emphasizes the use of management practices in preference to the use of off-​farm inputs, taking into account that regional conditions require locally adapted systems. This is accomplished by using, where possible, agronomic, biological, and mechanical methods, as opposed to using synthetic materials, to fulfil any specific function within the system. (Cited in Food and Agriculture Organization of the United Nations, 2015)

The US Food and Drug Administration label tries to insure organic products meet these standards by regulating the use of “organic” labels (FAO/​WHO Codex Alimentarius Commission, 2015. Some worry that regulation amounted to industry capture and want higher standards (Strom, 2012) but, to receive the label, farmers must: • Preserve natural resources and biodiversity • Support animal health and welfare • Provide access to the outdoors so that animals can exercise their natural behaviors • Only use approved materials • Do not use genetically modified ingredients • Receive annual onsite inspections • Separate organic food from non-​ organic food (US Department of Agriculture, 2015)

Moreover, the label’s requirements are listed on the USDA website, and it does prohibit using many harmful chemicals (US Department of Agriculture, 2015).

136  Ethical Consumption and Political Philosophy Still, without adequate regulation, people often question ethical labels’ integrity, and some worry that they do not make any difference. Consider cage-​free and free-​range labels on egg containers. The Humane Society states, for instance, “the truth is that the majority of egg labels have little relevance to animal welfare or, if they do, they have no official standards or any mechanism to enforce them” (Humane Society of the United States, 2015). To secure free-​range and roaming labels, the USDA only requires that hens have access to the outside, and cage-​free hens only need to “freely roam a building, room, or enclosed area with unlimited access to food and fresh water during their production cycle” (US Department of Agriculture, 2015). These labels do not guarantee that hens have frequent access to the outdoors, vegetation, or sufficient space. Nor do they prevent farmers from starving hens to induce molting. Pasture-​raised meat need only come from animals which have “continuous, free access to the out-​of-​doors” most of the time, but, again, this does not preclude many cruel practices (US Department of Agriculture, 2011). Third-​party certification provides some additional guarantees; but many certification systems also allow forced molting and beak cutting, and some do not even guarantee that chickens have enough space in their cages (Humane Society of the United States, 2015). Similar worries apply to the other labels on agricultural products (e.g., “natural” and “grass-​ fed” beef). Different labels use different criteria but, often, guarantee little (US Department of Agriculture, 2015). Consumers have to pay attention to the particular labeling organization’s standards and trust their oversight. Some worry that when large companies promote ethical consumption efforts, they tend to water down or ignore existing standards (Entine, 1995; Hickman, 2008). Critics argue, for instance, that the Body Shop does not really make sure their products have not been tested on animals, are sustainable, or are fair trade. Moreover, it gives relatively little to charity, despite claims to the contrary (Entine, 1995; Booth, 2006). (However, in 2004–​2005 it gave away 3.6% of its pretax profits to charity, while most Fortune 500 companies give approximately 1% [Body Shop, 2015; Preston, 2016].) Part of the problem may be that the Body Shop relies on ethical labels to which critics object. Critics worry that even most “cruelty-​free” labels, for instance, contain chemicals tested on animals at one point (Stevenson, 1994). However, it appears that some “cruelty-​free” labels provide good guarantees against recent testing (Food and Drug Administration, 2017). Alternatively, consider Energy Star and Leadership in Energy and Environmental Design (LEED) certification (Energy Star, 2012; Leadership

Ethical Consumption and Political Philosophy  137 in Energy and Environmental Design, 2015). The US Environmental Protection Agency certifies products, homes, commercial buildings, and industrial plants as energy-​efficient and gives them an Energy Star label. It subjects all products to third-​party testing and verification. Moreover, although it does not make all of its standards easily available to consumers, it says new homes are at least “15% more efficient than those built to the 2009 International Energy Conservation Code and include additional energy–​ saving features to deliver a performance advantage of up to 30% compared to typical new homes” (Energy Star, 2012). The US Green Building Council’s LEED program “provides independent verification of a building or neighborhood’s green features, allowing for the design, construction, operations and maintenance of resource-​efficient, high-​performing, healthy, cost-​effective buildings” (Leadership in Energy and Environmental Design, 2015). To receive certification, commercial buildings must, for instance,

• • • • • • •

Comply with environmental laws Be a complete, permanent building Use a reasonable site boundary Comply with minimum floor area requirements Comply with minimum occupancy requirements Commit to sharing whole-​building energy and water usage data Comply with a minimum building area to site area ratio

Building projects pursuing LEED v4 certification must • Be in a permanent location on existing land • Use reasonable LEED boundaries • Comply with project size requirements (Leadership in Energy and Environmental Design, 2016)

Many worry that producers can manipulate products to meet Energy Star and LEED standards so that they become ineffective. LEED rates some products and homes that use significant energy highly and others that use very little energy poorly. “Originally the [Energy Star] program aimed to recognize the top 25% in energy efficiency, but Consumer Reports in 2010 said roughly three-​quarters of TVs, dishwashers and humidifiers qualified for Energy Star designation in 2009” (Knight, 2011). Energy Star rates products within classes, so energy-​sucking French door refrigerators can

138  Ethical Consumption and Political Philosophy have top ratings (Shogren, 2009). Similarly, some luxury mansions located in the middle of deserts get LEED-​certified. People can game both systems (Wald, 2009). Energy Star sometimes rates products highly because they include energy-​saving settings consumers do not use because the product does not work well at those settings. In early tests, for example, manufacturers just turned off icemakers on refrigerators—​though consumers likely just turned them back on (Shogren, 2009). Similarly, builders have turned off drinking fountains to reduce water usage, limiting access to safe, bottle-​free, water to receive LEED certification. Moreover, implementing new campaigns can generate unintended bad consequences. Consider what happened with GoodWeave, an organization that certifies rugs as child labor–​free (Swearingen, 2014). When GoodWeave forced factories employing children to close, some worried that that had unintended bad consequences for children. Lacking employment, critics suggested, many children would go hungry or have to engage in other, worse, labor—​like prostitution (Panagariya, 1996). However, many campaigns evolve to deal with problems—​ more or less effectively—​as they arise. Fair trade, organic, LEED, and Energy Star standards constantly evolve; and GoodWeave takes positive steps to combat child poverty by reuniting the children they liberate with their families (Consumer Reports, 2015; Farrell, 2017). It also offers them the opportunity to attend school—​opening rehabilitation centers for freed children and supporting their education either at home or at a boarding school. Finally, GoodWeave tries to prevent child labor by operating day-​care and educational programs, offering scholarships, and providing health clinics (GoodWeave International, 2015).

I.3. Do These Worries Apply to the Global Health Impact Campaign? We can draw some general lessons from quickly surveying the major criticisms launched against some key ethical consumption efforts. Ethical consumption campaigns probably have some negative consequences even when they succeed. They should monitor, and create mechanisms for ensuring, compliance with good standards. Often, campaigns benefit from government or industry engagement and oversight, but such engagement and oversight can also undermine good campaigns. Good campaigns need

Ethical Consumption and Political Philosophy  139 mechanisms to deal with unintended bad consequences. Sometimes good outcomes come into tension with good processes, and even what counts as a good outcome can come up for some debate. Sometimes there exist better ways to achieve ethical consumption campaigns’ objectives. To avoid problems with labeling campaigns, labeling organizations should measure what matters consistently, comprehensively, and transparently. Fortunately, key differences between the campaigns described and the Global Health Impact campaign allow it to avoid some similar worries. The Global Health Impact labeling initiative probably does not need government oversight. Pharmaceutical companies with the drugs having the most impact have an incentive to prevent knockoff labels. Unlike with the (RED) and Buy Pink campaigns, firms do not contribute money or receive the label based on secret, negotiated agreements. The Global Health Impact rating system is transparent. Moreover, on the Global Health Impact Index, firms receive credit for their investments’ scientifically measured results, not for the investments themselves (global-​health-​impact.org/​new). So no one needs to monitor compliance with standards as the Global Health Impact Organization completes the scientific evaluation before companies ever receive a label (unlike with the Kimberly Process [2017]). Moreover, companies cannot manipulate Global Health Impact standards (as with Energy Star and LEED). The organization uses well-​established data sources to evaluate products’ performance. So, although the Index requires significant data, researchers do not have to get data directly from companies (which might make monitoring performance even more difficult). The Index also creates incentives to improve disease surveillance systems as companies can get more credit insofar as these systems capture their drugs’ impact. The Global Health Impact Organization has objective standards for measurement, and companies cannot easily game the system. Companies’ scores improve if, and only if, their medicines alleviate more death and disability. Though one might want a more comprehensive index that can help improve policy, the Global Health Impact team is working to make its Index more comprehensive without loosening standards or making them vaguer. The Global Health Impact Index measures something objectively important—​even though other things also matter. Some might object to giving companies credit for their drugs’ health consequences. That is, they may object to the campaign’s aims. However, this book defends them at length. Finally, companies cannot easily abuse the Global Health Impact label. Large firms with highly rated

140  Ethical Consumption and Political Philosophy products have an incentive to prevent other companies or organizations from abusing the label. The Global Health Impact Organization can avoid some worries about corporatizing ethical consumption as it scales up its efforts as long as it maintains its status as an independent rating entity. More specifically, some ways to commercialize undermine the campaign’s point and amount to selling out, while others do not. Perhaps the organization can sell data to researchers (though, so far, it has made its data publicly available as selling them might limit scientific progress). More generally, avoiding industry capture requires good organizational design. The Global Health Impact Organization has a conflict of interest statement. It does not give pharmaceutical companies, or their lobbying agencies, any influence over the its aims or processes. Although it cannot guard against all unintended bad consequences, the organization’s advisory board has mechanisms to review and modify the Global Health Impact Organization itself. Still, some challenges remain. Perhaps people should promote positive change in a different, more democratic, way. Perhaps, the Global Health Impact campaign will be ineffective or unsustainable. What follows considers these worries in turn: (1) the process of promoting ethical consumption from Global Health Impact–​certified companies is unacceptable because it is not appropriately democratic and (2) the Global Health Impact campaign will be ineffective or unsustainable. Chapter  5 argues that consumption that promotes positive change is generally permissible even if it is not democratic. Showing that even undemocratic ethical consumption is permissible suffices to undermine the more radical view, namely that even democratic ethical consumption is impermissible because people must promote positive change through states. They can only give directly to charity. Chapter 6 provides some empirical evidence that the Global Health Impact label can incentivize companies to do more for global health. Furthermore, it explains how to gather definitive evidence about other Global Health Impact initiatives’ likely consequences.

5 Consumption and Social Change The Case of Global Health Impact Certification

5.1. Introduction Would people have to purchase Global Health Impact or other goods with ethical labels in an ideal, or fully just, world where everyone’s human rights are secure?1 This chapter argues that people may generally consume what they want as long as they respect just institutions’ rules but that, absent just institutions, significant moral constraints on consumption exist. That is, when rules are unjust, people cannot just follow them (and even the best states have many unjust rules). Still, in this world, purchasing things with Global Health Impact and similar labels is permissible; and, as the previous chapter argued, it may even be obligatory for people to pursue genuinely positive change through ethical consumption. Let us call this account of the moral foundations of consumer behavior positive change consumption. Allowing positive change consumption is necessary to respect individual freedom and protect important processes and outcomes (e.g., fair employment processes, environmental preservation, poverty reduction, and so forth). On the positive change account, what people are morally required to do depends on whether their institutions are just. The positive change account requires rejecting some ways of thinking about how consumers should exercise their basic economic powers. Most prominently, democratic accounts suggest that, to be ethical, consumption must promote positive change democratically (Hussain, 2012; Christiano, 2016a, 2016b).2 So, people cannot just consume goods from Global Health Impact–​certified companies as they like. Some democratic theorists believe that ethical consumption must equalize bargaining power between those who purchase and supply goods (Christiano, 2016b). Others maintain that for ethical consumption to bring about positive social change, it must promote democratic decision-​making about matters that concern the public and democratic governance generally (Hussain, 2012). Some democratic Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

142  Ethical Consumption and Political Philosophy theorists say it is permissible to engage in ethical consumption for other reasons (e.g., to avoid and compensate for complicity in violating rights).3 For this reason, and because the book considers how Global Health Impact certification might help bring about positive change (as well as let people compensate for, and avoid complicity in supporting companies failing morally), I focus primarily on consumption intended to promote positive change in what follows. I leave this qualification largely implicit where its importance is minor.4 In defending its new positive change account, this chapter rejects the democratic alternatives. It argues that if ethical consumption must be democratic, that can prevent truly positive change; but, at the same time, people must recognize democratic processes’ importance.5 Although promoting democracy has value, people may also promote other positive processes and outcomes. To see what is at stake, consider the Forest Stewardship Council (FSC) sustainable forestry label. The FSC includes representatives of environmental and forestry groups on its board of directors and in its general assembly. The general assembly also includes representatives concerned with environmental and social issues and votes on policies using a broadly democratic process. Some democratic theorists praise the FSC for including corporate as well as environmental interests (Hussain, 2012).6 Critics assert, however, that the FSC’s governance structure hinders the group’s environmental aims. They say the FSC “greenwashes” logging companies, given that companies logging old-​growth forests and engaging in other environmentally destructive practices can receive FSC certification (FSC-​Watch, 2011). Critics argue that the FSC should not include logging companies’ representatives on its board, never mind give them equal voting rights in the general assembly. Suppose the critics are right that consumption can better promote sustainable forestry management if the FSC rejects deliberation and inclusion. Suppose that it can secure better outcomes and that the process of promoting sustainability will be better. If so, on the positive change account, consumers may back efforts to reform the FSC or support other, less democratic, efforts to preserve forests, like the Sustainable Forestry Initiative. This chapter examines the moral foundations of consumer behavior, not the particular legal permissions and constraints that are, or should be, in play. Sometimes new ideas and perspectives are even more important than new policies and laws. In any case, this chapter just tries to encourage reflection on, and commitment to, using ethical consumption to promote positive change.7 Those interested primarily in the Global Health Impact proposal’s

Consumption and Social Change  143 science and policy aspects can read Chapter 6’s 3rd and 5th sections and then turn to the conclusion. The chapter proceeds as follows. Section 2 motivates the inquiry by explaining the democratic alternatives. Section 3 defends positive change consumption and responds to some potential objections to the account. Section 4 argues against the conditions in one democratic account, in particular, illustrating its arguments with the Global Health Impact proposal. Section 5 concludes.

5.2. Democratic Consumption On democratic accounts, ethical consumption (at least if it promotes social change) must aim at democratic change. On some democratic accounts, ethical consumers promoting social change should prepare to seek democratic approval from the appropriate legislative bodies by creating standards and arguments that can inform legislation (Hussain, 2012). On other accounts, they must only aim to equalize bargaining power in markets (Christiano, 2016a, 2016b). This may require giving those with less bargaining power a much greater proportion of the gains from a transaction than they could secure on their own (e.g., ensuring that poor workers have good working conditions and wages). On perhaps the most prominent and philosophically sophisticated democratic theory, consumption that promotes social change must respect basic liberties and advance a reasonable conception of the common good.8 Moreover, such consumption requires transparent deliberative procedures that engage many stakeholders. Citizens must use their bargaining power to promote social change “as part of the wider democratic process, a kind of ongoing, informal prologue to formal democratic lawmaking” (Hussain, 2012, 125). On this account, those engaging in consumption to promote social change should act as a working committee for citizens in general. They should provide the public with arguments for the rules that they believe all citizens should adopt. Those who “represent the most important perspectives on . . . [an] . . . issue in society” should make these rules (Hussain, 2012, 125–​ 6). To illustrate this democratic account, consider a hypothetical case where some refuse to use nuclear power and, thus, try to make its development too expensive. On this account, even if those boycotting rightly reject nuclear power, they do not have a license to try to prevent it in this way (Hussain,

144  Ethical Consumption and Political Philosophy 2012, 120–​1). More formally, consumption that aims to promote social change is acceptable, on this version of the democratic account, only when (1) The exercise of bargaining power [consumption involves] does not deprive anyone of their basic liberties. (2) The exercise of bargaining power is directed at (significantly) advancing an agenda framed in terms of a reasonable conception of the common good. (3) The formal democratic process has not already addressed the issue in question. (4) The process that guides the exercise of bargaining power is appropriately representative and deliberative. (5) The process that guides the exercise of bargaining power generates standards and arguments that can be the basis of future legislation. (6) The overall effort aims to raise awareness of the issue and (if necessary) to put it on the formal legislative agenda. (Hussain, 2012, 126)

The preceding account allows that some injustices are so bad that citizens need not privilege formal democratic politics in social life (Hussain, 2012, 134). Nevertheless, it suggests people should privilege democratic politics in most wealthy liberal democracies (Hussain, 2012, 135).9 Internationally, some democratic theorists assert that “whenever citizens in one community use their purchasing decisions to advance a social agenda, and advancing this agenda involves using their bargaining power to shape behavior and practices in another community, they must respect the institutions and processes of democratic change in the other community” (Hussain, 2012, 142). These theorists insist that it is not acceptable for UK consumers to refuse to purchase things from companies that do not meet UK labor standards in the Philippines. UK consumers may only refuse to purchase things from companies that fail to meet democratically created Philippine, or international, labor standards. Some democratic theorists assert that only democratic change respects procedural norms “essential to the justification of our liberal democratic social order” (Hussain, 2012, 117). These norms include respect for (1) basic liberties, (2) political equality, (3) democratic deliberation, (4) justified coercion, and (5) managed politicization (Hussain, 2012, 117). On their view, those engaging in ethical consumption must raise awareness of the issue that they want to address and provide arguments that are the basis of democratic

Consumption and Social Change  145 deliberation at least within their own organizations in order to advance their (reasonable) conception of the common good. Moreover, in doing so, they must respect basic liberties and political equality. Some democratic theorists believe in free markets’ power to improve welfare and, so, allow some exceptions to the claim that consumers should only promote social change democratically. They say people may consume based on price alone at least when policymakers manage markets reasonably and implement measures to constrain inequality and protect wages (Hussain, 2012, 122, nt. 16). Letting people pursue their ends enhances efficiency and increases wealth: in general, people may make private purchasing decisions because doing so maximizes preference satisfaction (Hussain, 2012, 137–​8). Economists argue that free markets are efficient. They bring Pareto optimal improvements in preference satisfaction; they make at least some better off without making anyone worse off (Buchanan, 1985). We should reject the argument that consumption based on price alone is generally permissible. At least absent just institutions, people cannot just purchase whatever is cheapest. More than efficiency matters. It can be bad for people to fulfill even price-​based preferences. Whether people should fulfill preferences depends on what preferences they have. Some have morally abhorrent preferences. Moreover, purchasing goods only to save money (which is how people normally use bargaining power) can have bad consequences. If people maximize profit without concern for others’ welfare, that often undermines democratic equality, even if it advances economic growth. Sufficient safeguards do not exist to ensure, for instance, that poor producers (e.g., laborers) get a living wage in many democratic countries (Ruben, 2008). No one should follow Milton Friedman in arguing that intentionally using market power to bring about positive change is undemocratic, whereas using market power to purchase whatever one wants is perfectly democratic even if it predictably undermines equality (Friedman, 1970).10 Sometimes people should endorse imperfectly efficient resource distribution, for example, to help others meet their basic needs. The idea that “no procedurally sound process” but free markets “could achieve comparabl[y good] results” is absurd (Hussain, 2012, 137).11 What follows argues that consumption that actually promotes positive change may better help secure Pareto superior improvements in the space of truly moral preferences (e.g., preferences that bring about genuinely positive change if fulfilled).12 The next section argues that positive change consumption better accounts for the deep commitment to individual freedom that motivates those who

146  Ethical Consumption and Political Philosophy embrace democratic accounts to endorse free market exceptions to the claim that consumption should advance positive change democratically. It explains that a deep commitment to individual freedom constrains requirements on citizens’ non-​legislative activities under just institutions and, so, requires rejecting democratic accounts. However, the next section suggests that individuals only have the (general) freedom to purchase whatever they like under just institutions. At least absent such institutions, people cannot consume whatever they like. They must respect whatever moral constraints exist. Moreover, on the positive change account, democratic processes have significant value, but this value does not always trump. Within moral constraints, people may pursue other good processes and things that matter. Before making this case, however, I must say a few words about terminology. On democratic accounts, consumption must respect democratic processes. Otherwise, it violates democratic ideals. (See the preceding discussion for one way of making sense of this idea.) However, democratic accounts require people to, for example, try to “raise awareness of the issue [they are concerned about] and (if necessary) to put it on the formal legislative agenda” (Hussain, 2012, 126). The accounts do not always require success. So, in what follows, I sometimes say that these accounts require people to “aim at,” “promote,” and “contribute to” democratic change. I do not claim that, on these accounts, promoting democratic change is merely permissible or advances the good. On democratic accounts, consumers must pursue positive change democratically.

5.3.  Advancing Positive Change Consumption 5.3.1. The Argument Consider the positive change account’s justification. Respect for individual freedom requires respecting individuals’ freedom to promote positive change as they like within just institutional rules. The positive change account endorses the institutional thesis, on which good institutions should provide a framework of rules within which people may freely make choices. On this thesis, if purchasing decisions are just like other choices, people may normally consume what they want within just institutions’ rules (Murphy, 1998). These rules should prohibit, or at least discourage, purchasing decisions that violate rights or other moral requirements. Moreover, people

Consumption and Social Change  147 should refrain from making such decisions. Nevertheless, people may consume in ways that allow them to promote positive change. I cannot fully defend the institutionalist thesis here, but consider its motivation:13 society should divide moral labor so that background institutions provide rules within which individuals may generally pursue their interest (Rawls, 1971; Nagel, 1991; Murphy, 1998). These institutions “secure justice more effectively than could people acting without institutions, they also minimize the costs people must sustain to secure justice” (Murphy, 1998, 259). The institutionalist thesis differs from what Liam Murphy calls institutionalism. According to institutionalism, different moral principles apply to institutions and individuals. Rather, on the institutionalist thesis, just institutions establish just background rules under which “individuals and associations are then left free to advance their ends . . . secure in the knowledge that elsewhere in the social system the necessary corrections to preserve background justice are being made” (Murphy, 1998, 268–​9). The commitment to individual freedom at liberalism’s cornerstone supports the thesis. “People lead freer and better lives . . . if they can devote most of their concerns to their own affairs” (Murphy, 1998, 258). The institutionalist thesis does not deny people political obligations. People often have to ensure that their societies conform to democratic principles. They may, for instance, have to vote for appropriately democratic policies.14 The thesis only asserts that people should be free to make many choices under just institutions that help them coordinate action and fulfill moral responsibilities. Moreover, if the claim that people may do what they want under just institutions’ rules applies to market choices, people may consume non-​ democratically. Consumption must respect just public/​deliberative democratic rules that protect basic liberties and so forth. People may also consume in ways that promote democratic decision-​making. Even if their consumption promotes social change, however, it need not always promote democratic change. Insofar as people have to promote democratic change, they can do so in other ways. Just institutions may compensate for any unjustified market distortions consumers cause in attempting to promote positive change. The commitment to individual freedom underlying the positive change account supports this chapter’s conception of how people should exercise their basic economic powers: under just institutions, consumption is essentially private. It falls within the space people should have for acting according to their own views. If the appropriate background institutions

148  Ethical Consumption and Political Philosophy guarantee justice, consumption should not count as a public or political act—​ part of a community’s democratic self-​governance.15 Consumption that does not aim at democratic change differs from consumption that undermines democracy. Even if the latter is unacceptable, the former is permissible. Even freedom under just institutions is not complete freedom—​what some call common good anarchism.16 Just institutions should protect procedural norms “essential to the justification of our liberal democratic social order” including respect for basic liberties, political equality, democratic deliberation, justified coercion, and managed politicization (Hussain, 2012, 117). They should also protect public health and safety, etc. People must respect just institutions’ rules, and these institutions should sometimes prevent individuals from purchasing things they believe promote the common good. So, people should refrain from purchasing these things.17 People should also embrace positive change consumption when they lack just institutions that help them fulfill their moral responsibilities. Absent just institutions, people need not act democratically every time they try to promote positive change. In fact, it is even more important that people promote (other) good procedures and ends absent just institutions that guarantee them. Prohibiting people from consuming in ways that promote non-​democratic positive change prevents positive change. Moreover, absent just institutions, people cannot purchase whatever they want even if they abide by the rules that exist. Given that many states do not prohibit morally impermissible consumption, individuals should refrain from engaging in it. People cannot always justify using market power that relies on states’ coercive rules to pursue what they believe brings about positive change. White people should not discriminate by, for instance, refusing to buy from minority ethnic or racial groups because they think white people should rule.18 That undermines political equality and society’s democratic character and misuses coercively enforced market power. People should also refrain from racial discrimination for many other reasons (most notably because it is unjust). However, I need not list all the constraints on ethical consumption to defend positive change consumption against common good anarchism. On positive change consumption, people may consume in ways that promote positive change within whatever moral constraints exist. To make this case, I do not need to provide a complete moral theory. I need only point to a few relatively uncontroversial moral constraints. Presumably, for instance, one should not engage in consumption that violates basic rights, destroys the natural environment, etc.19

Consumption and Social Change  149 In short, positive change consumption respects individual freedom under just institutions and cuts against the democratic alternatives even in their absence. Ethical consumption need not aim at democratic change. If people and the environment benefit when some people boycott nuclear power, for example, they may boycott it.20 People must recognize democratic processes’ importance but should not prohibit non-​democratic positive change. Moreover, people should reject democratic accounts in the international case (as well as locally). They may not have to promote democracy beyond their states’ borders. Even if they do, consumers need not purchase only from companies that meet democratic local or international labor standards to advance social change. People can promote democracy in other ways. Plausibly, if people decide to do business in a country with low labor standards, they may purchase only from firms that abide by better standards. Sometimes announcing one’s intention to purchase only from companies that meet whatever democratic indigenous standards exist will lead to better standards but not always (Pogge, 2002a). Often, people can better, and more fairly, promote positive change in other ways.21 Moreover, in the meantime, people should not do things that hurt the global poor, even if they believe doing so promotes positive change. Consider a case that illustrates how the positive change account differs from the democratic alternatives. Suppose consumers want to change labor standards in societies that do not do enough to protect poor workers. Consumers may support organizations like United Students Against Sweatshops (USAS), which work with independent auditing authorities like the Workers’ Rights Consortium (WRC), to ensure that factories respond to worker complaints, maintain decent working conditions, and pay workers a living wage.22 This is so even though these organizations are not particularly democratic and even if one does not try to promote democratic change in doing so. Compare the WRC with the Fair Labor Association (FLA). Like the WRC, the FLA engages companies in conversation to improve working conditions. However, unlike the WRC, the FLA gives companies control over monitoring their own factories. Some argue that, partly because it has deliberative aims, the FLA collaborates with companies and undermines worker campaigns for fairer labor standards.23 If so, consumers cannot support the FLA even if it is more democratic. People cannot just consume whatever they think promotes positive change nor must they always promote democratic change.

150  Ethical Consumption and Political Philosophy Explaining the rationale behind the positive change account may not convince those who believe promoting democratic politics takes precedence over everything else, but it provides reason to question these views. Those who have such a strong commitment to these values must explain why they have overriding importance.

5.3.2.  Warding Off Objections to the Argument for Positive Change Consumption What follows responds to some of the democratic theorists’ worries about positive change consumption.24 Recall that some believe only democratic consumption respects procedural norms “essential to the justification of our liberal democratic social order” (Hussain, 2012, 117). These include respect for (1) basic liberties, (2) political equality, (3) democratic deliberation, (4) justified coercion, and (5) managed politicization (Hussain, 2012, 117). Consider each point in turn. First, democratic theorists argue that allowing consumers to exercise their market power undemocratically undermines individuals’ basic liberties. These liberties include free thought, conscience, religion, and association. The better organized, who have greater resources, can force others to adhere to the way they understand the common good (Hussain, 2012). So, democratic theorists conclude that consumption to promote social change must respect basic liberties. Second, democratic theorists claim that “citizens should be able to participate as equals in deciding how society will address important issues of common concern” (Hussain, 2012, 118). They believe non-​democratic social change consumption relies on unequal market power that undermines this equality (Hussain, 2012, 118). These points provide no objection to the positive change account. On the positive change account, consumption should generally respect basic liberties and political equality. Just institutions can compensate for any inequalities consumption creates. Recall that, even if people may consume what they want under just rules, just states can prohibit inappropriate consumption that, for example, fails to protect basic liberties or political equality. States should not generally restrict consumer choice in doing so. In some cases, they can avoid restricting individuals’ consumption decisions by changing property rights or other market rules (a great deal of economic policy aims

Consumption and Social Change  151 to address market “distortions” consumers cause).25 If people boycott sustainable energy, for instance, states can tax non-​renewable energy to correct the distortion. Sometimes, however, states may restrict consumer choice directly.26 Moreover, on the positive change account, consumption should not undermine basic liberties or political equality even absent just institutions.27 Third, democratic theorists maintain that people should deliberate together to find the policies the best reasons support. Unrestricted consumption allows those with the greatest bargaining power to bypass this process in advancing the common good as they see it. They believe consumption should not undermine the democratic process; instead, people should deliberate democratically to resolve difficult disagreements. I believe, however, that more than equality in decision-​making matters. Unfortunately, the global poor have relatively little influence over global markets. Still, people may consume in ways that reduce poverty. If the WRC successfully requires factory owners to pay higher wages, these factories may close. Poor people may lose their jobs. They may complain that they should have more control over their fates. Perhaps consumers should refrain from demanding standards so high that factories employing many poor people must close.28 But no matter how rich consumers exercise their bargaining power, their choices greatly impact the global poor (Dragusanu et al., 2014).29 Poor people often lose their jobs just because the winds of fashion shift.30 If rich consumers decide to follow poor countries’ rules, the poor are still at their mercy (Delva and Loney, 2008). I believe states should restructure global markets to make them more equitable. They should change labor standards around the world, for instance. (Though ethical consumption can play a big role in getting states to do so.31) Still, in the meantime, people may also help the global poor (etc.) in smaller ways. Requiring people to consume democratically prevents positive change. People may consume in other ways when doing so actually helps promote it. Proponents of the positive change account believe consumers do not always need to support democratic deliberation and sometimes doing so is unacceptable. Moral opinions diverge on many topics. Consider one case. People reasonably disagree about what constitutes fair labor standards—​ should children have to go to school to age 16? 18? 21? (Satz, 2003). The democratic constraint plausibly applies in these cases: rich people cannot undermine reasonable democratic decisions. At the same time, some positions are unreasonable; 5-​year-​olds should go to school, not work in a dangerous mine, recycling hazardous electronics, or as a prostitute.32 Often, people

152  Ethical Consumption and Political Philosophy appear to disagree because they lack decent options (that ethical consumption can help create) but to send their children to work. Often, they simply cannot afford the necessary school fees, uniforms, or even sufficient food. Still, deliberation is not always appropriate for resolving disagreement about the common good. No one should purchase sex or even clothing from 5-​ year-​olds when better options exist, even if people deliberate and conclude that they may. Unlike democratic accounts, the positive change account can explain why people may use their bargaining power to provide better options for children when deliberation fails:  consumption that does this actually promotes positive change.33 Sometimes people need further direction to determine what they may consume—​though that problem is not unique to the positive change account and deliberation may not provide the needed guidance. After all, telling people to engage only in democratic consumption does not ensure that they do so either. People make moral mistakes. They may wrongly believe that society should keep coal-​fired power plants open because they provide jobs even if creating jobs in a different sector benefits everyone. To address the issue, people do not just need a theory about what justifies ethical consumption. They need to know what energy policies they may implement. Deliberation may not help them acquire this information. Scientific study and ethical inquiry may be more effective. On the positive change account, people may generally use consumption to promote positive change, and often people know when consumption fulfills this condition. Recall, for instance, that good evidence suggests many fair trade programs benefit the poor farmers and sometimes help larger communities (Murray et al., 2003; Bacon, 2005; Ruben, 2008). Fourth, democratic theorists argue that consumers must offer a public rationale for consuming in ways that they believe promote positive change. They point out that states’ coercive laws underwrite consumers’ market power. They believe people should not use market power to promote their individual view of the common good. Because consumption relies on this power, some democratic theorists maintain that it may only promote democratic change (Hussain, 2012, 134). I believe democratic theorists are wrong to insist that people need public justification for using market power to bring about social change. Consumers do not need to offer a public rationale for their consumption just because consumption relies on states’ coercively enforced property

Consumption and Social Change  153 rights. States need a public rationale for their coercion (and perhaps for the particular property rights they enforce). As long as people respect just rules, they may generally purchase what they want. They need not seek democratic approval for efforts to promote social change. Absent just institutions, people cannot consume whatever they want. But as long as they respect whatever moral constraints exist, people may generally consume in ways that actually promote positive change. Finally, democratic theorists argue that consumers should not do things that undermine the “fabric of social life” (Hussain, 2012, 123). Some believe political acts beyond the formal political process undermine this fabric. They suggest people should not bring up hard disagreements about the public good in market transactions. They believe people should resolve disagreements in democratic fora as keeping them in this domain helps maintain trust and good will in society. Democratic theorists maintain that people should refrain from promoting social change in everyday market transactions because it is divisive to focus on political disagreement. To appropriately manage politicization, they conclude, consumption to promote social change must be democratic (and, e.g., fulfill the conditions in the democratic account Section 2 sketched, in particular) (Hussain, 2012, 124). Whether positive change consumption will exacerbate politicization is ultimately an empirical question. My guess is that it will not. I think most ethical consumption initiatives embody underlying political disagreements and do not exacerbate them. The fact that my parents refuse to buy anything from China while I try to purchase sweatshop-​free clothing does not make us any more likely to argue about our underlying political disagreements. Rather, our purchases reflect the fact that they support the Tea Party, while I support the Greens. My parents also endorse the idea that consumption may promote positive change, and our disagreement hinges on what actually does so. Moreover, I feel some solidarity with them when we both boycott Walmart to promote positive change (though we have different thoughts about why doing so is a good idea). Even if we used our purchasing power differently, I believe that would only reflect, and not exacerbate, politicization.34 Even if this is wrong, however, positive change consumption’s proponents can maintain that some politicization is acceptable. Moreover, they can constrain individuals’ ability to consume in ways that promote positive change, etc., when necessary to keep politicization within reasonable bounds.

154  Ethical Consumption and Political Philosophy

5.4.  Why Global Health Impact Certification Does Not Have to Be Democratic Previous sections argued that the positive change account captures what is appealing in democratic accounts and that it can avoid their worries as well as pitfalls. Democratic accounts cannot accommodate the deep commitment to individual freedom that motivates the positive change account and that is a mark against them. This commitment constrains requirements on citizens’ non-​legislative activities under just institutions (and, so, requires rejecting democratic accounts). On the positive change account, individuals have the (general) freedom to purchase whatever they like under just institutions. But, absent such institutions, people cannot consume whatever they like. They must respect whatever moral constraints exist. Moreover, on the positive change account, democratic processes have significant value; but this value does not always trump. Within moral constraints, people may pursue other good processes and things that matter. This section explains where the most prominent and philosophically sophisticated democratic account (sketched in Section 2) goes astray (Hussain, 2012). It illustrates its argument with the Global Health Impact proposal. It does not challenge the first or the second condition in the proto-​legislative account, but it argues against all the remaining conditions in turn.35 Consider, first, why consumption that aims to bring about social change does not have to address an issue “the formal democratic process has not already addressed” (Hussain, 2012, 126). This is the third condition in the democratic account Section 2 sketched. It supposedly recognizes “the privileged position of formal democratic politics and rules out attempts by citizens to use their bargaining power in the market to overrule the legislature” (Hussain, 2012, 127). Those who accept the positive change account can agree that we should respect even non-​optimal democratic decisions. They only maintain that consumers need not support unjust or immoral legislative decisions. Suppose governments or international organizations decide to allow unsustainable forestry practices. That does not undermine the case for promoting sustainable forestry even if these efforts do not aim to bring about democratic change. To clarify—​some procedural constraints on ethical consumption exist, but the third condition in the relevant democratic account does not always bind. So, people can purchase goods from Global Health Impact–​certified companies even though formal democratic processes have considered the access

Consumption and Social Change  155 to medicines issue. Democratic processes have failed to address the issue satisfactorily.36 As the last chapter explained, for instance, the World Trade Organization (WTO) has considered the access issues the Agreement on Trade-​Related Aspects of Intellectual Property Rights (TRIPS) poses. The WTO probably improves welfare in general by increasing trade. Still, the TRIPS contains woefully inadequate safeguards to insure access. Countries can issue compulsory licenses for essential medicines. However, those without manufacturing capacity also need to get other countries to issue licenses to produce these medicines for export (Barnard, 2002; Owoeye, 2014). Doing so is often difficult. In any case, compulsory licenses have so far failed adequately to address the access to medicines problem (World Trade Organization, 2006; Beall et al., 2015). Many government courts have also addressed access issues. Recall the dispute about South Africa’s Medicines and Related Substances Control Act to insure access to medicines. The Pharmaceutical Manufacturing Association of South Africa and 39 international companies took South Africa to the High Court to prevent the compulsory licensing the act allowed. Companies lobbied for support from the US trade representative. They eventually withdrew the lawsuit when the Treatment Access Campaign and Médecins Sans Frontières protested. Nevertheless, the government did not go on to issue compulsory licenses on AIDS medicines (Barnard, 2002). One might argue that any injustice or immorality in the access case is less clear than apartheid-​era injustice in South Africa. After all, some reject positive rights to essential medicines, and patents stimulate innovation that may improve access to medicine in the future.37 Still, no one should object to purchasing Global Health Impact–​ certified goods because democratic processes have failed to secure access. In South Africa alone, 110,000 died from AIDS in 2016 (AVERT, 2018). People can generally support ethical consumption to address such problems, even if they do not aim to bring about democratic change. There are also good arguments against the fourth condition in the most prominent democratic account—​namely, that an “appropriately representative and deliberative” process must guide consumption that aims to bring about social change (Hussain, 2012, 126). Sometimes we should even make the process guiding consumption less representative or deliberative. Previous sections’ arguments illustrate this point; recall that making the FSC’s governance structure less deliberative and inclusive may improve both sustainable forestry management’s outcome and process.

156  Ethical Consumption and Political Philosophy The case against holding that “the process that guides the exercise of bargaining power [implicit in ethical consumption must be] . . . appropriately representative and deliberative” is just as strong for Global Health Impact certification (Hussain, 2012, 126). The Global Health Impact label’s success likely relies on pharmaceutical company buy-​in but need not result from a representative deliberative process. Allowing companies to influence the standards for certification could undercut the label’s credibility and distort the ratings. Researchers should not let major pharmaceutical companies influence the Global Health Impact rating system. Companies may try to change the rating system to secure greater profits rather than support it.38 Even if we can suppose companies participating in the Global Health Impact initiative are well motivated, allowing them (or other stakeholders with an important perspective on the access issue) to influence the rating system may cause problems. Good rating systems can promote many different legitimate aims. A good rating system can reward companies for effort rather than their products’ global health consequences, for instance. A rating system already exists that does this—​the Access to Medicines Index—​that is, incidentally, built on a corporate social responsibility platform (Access to Medicines Index, 2016). It includes companies in the deliberative process that generates the ratings. Some rating systems promote more important aims than do others. I believe incentivizing actual impact will better promote global health than rewarding companies’ efforts, though measuring impact is important for evaluating efforts’ consequences. Even if I am wrong about this, people with different perspectives might only agree on an implementable rating system that does not satisfy any participant’s goals or even the sum of them all, as well as just having different rating systems. I cannot see the problem with different people, with different (morally acceptable) goals, pursuing those goals in different ways. Perhaps consumers can create a representative, deliberative process that helps them fulfill moral requirements. If not, however, they do not need to implement a representative-​deliberative process. Nor should we endorse the fifth condition in the main democratic account—​namely, that “the process that guides the exercise of bargaining power . . . [must generate] . . . standards and arguments that can be the basis of future legislation” (Hussain, 2012, 126). Different substantive and procedural standards and different arguments sometimes apply to ethical consumption and legislation. We need economic and ethical argument, rather than legal analysis, to establish ethical consumption’s feasibility and moral permissibility. Ethical consumption need not stimulate debate and deliberation that

Consumption and Social Change  157 can inform or bring about legislative change. Some may promote change through different formal legal processes, while others promote change in other ways. Consider why those supporting the Global Health Impact certification proposal need not provide “standards and arguments that can be the basis of future legislation” (Hussain, 2012, 126). To make the case for Global Health Impact labels, for instance, people may need to analyze consumer response to the labels and quantify the impact this has on global health (as well as companies, etc.). To make the case for legal or political change, people need different arguments. We need to know, for instance, that we can, and should, make the requisite changes through a given democratic process. We need econometric analysis for the former project and legal analysis for the latter. So, those with different skill sets can fruitfully work on different ways to increase access to essential medicines.39 Finally, we should reject the main democratic account’s sixth condition, on which “the overall effort aims to raise awareness of the issue and (if necessary) to put it on the formal legislative agenda” for three reasons (Hussain, 2012, 126). First, the governance gap often persists. Legal or governance changes are often cyclical, and many problems are persistent and complex and remain unresolved. When we do not resolve pressing issues fast enough, good results often become impossible. We must preserve old-​growth forests quickly before loggers cut them all down, exacerbating climate change. In the FSC case, for instance, governments have considered what constitutes acceptable forestry practices many times. Yet, the debate continues. In the United States, for example, the George W. Bush administration made it easier for companies to log old-​growth forests on public lands by altering survey and manage requirements in the Northwest Forest Plan. The fight has continued in subsequent administrations as companies continue to challenge the plan (Hanscom, 2004; Davis et al., 2015; Ore, 2016; US Department of Agriculture, 2015). In many cases, it is not even clear what legislature(s) should have authority (United States Forest Service, 2013; Pulhin et  al., 2007).40 Second, and more importantly, sometimes we cannot, or should not, overcome the governance gap by trying to get governments to resolve difficult issues. Companies exercise great influence over many democratic governments. Actual democratic processes are frequently poor, and government intervention often produces worse results than purely market-​based efforts to promote social change.41 Finally, private efforts to promote positive change can complement public efforts to do so.

158  Ethical Consumption and Political Philosophy Consider how each point applies to the Global Health Impact proposal. First, its proponents need not even prepare to put the access to medicines issue on the legislative agenda when getting governments adequately to address the access problem is too difficult. Recall that even the then pope backed a campaign to prevent TRIPS that, ultimately, failed (Hassoun, 2012b). As in South Africa, the US trade representative has thwarted many countries’ efforts to extend access to essential medicines more broadly (Barnard, 2002). A big democratic deficit exists: democratic institutions do not appropriately govern pharmaceutical companies. As the last chapter argued, companies’ lobbies often exert significant pressure on states and international organizations to secure larger profits even when that undermines public health. Moreover, no good democratic forum to which human rights advocates can effectively submit the issue exists. At least, sufficient legislative change may not come quickly enough to save many lives that consumers could save in the near future via a Global Health Impact labeling initiative. Second, it may be a bad idea to try to get governments with poor democratic processes to address the access to medicines problem. In the United States, for instance, pharmaceutical companies spend millions lobbying for their preferred policies (Center for Public Integrity, 2016; Drug Watch, 2012).42 Even overseeing a Global Health Impact label democratically is potentially counterproductive. Suppose governments, or international organizations, oversee the Global Health Impact rating system. In this nonideal world, companies may lobby them to change the rating so that it does not promote global health but, rather, increases companies’ profits. Finally, even if legislative change can most efficiently encourage companies to live up to their moral obligations, I believe it is permissible for some to try to bring about positive change through consumption that is not democratic. At least, this is so if they cannot do better (activists are not always good at politics). Those with different skills and interests may best pursue positive change in different ways.

5.5. Conclusion This chapter defended a new perspective on how consumers should exercise their basic economic powers. On its positive change account, people may consume what they want under just institutions as long as they respect the institutions’ rules. Absent just institutions, significant moral constraints

Consumption and Social Change  159 on consumption exist. Still, people can (and—​if the last chapter is right—​ should) consume ethically to pursue genuinely positive change within these constraints. Recently, several authors have argued that ethical consumers can only promote democratic change. Some suggest that consumers must promote democracy by equalizing bargaining power in every transaction (Christiano, 2016a, 2016b). Others argue that ethical consumption to bring about social change must bring about democratic institutional change and promote public, open-​minded, transparent debate with many stakeholders (Hussain, 2012). These positions pose problems for this book’s argument that consumers should generally purchase goods from Global Health Impact companies. On democratic accounts, people can only consume goods from Global Health Impact–​certified companies to promote positive change if, in doing so, they promote democratic change. If that is not the case, people need not consume goods from Global Health Impact–​certified companies. On such accounts, we should reject the previous chapter’s assumption that consumers should generally promote positive change. This chapter argued that consumers can aim at democratic change but that they do not always have to do so. If democracy is too central, it prevents truly positive change; but, at the same time, people must recognize democratic processes’ importance. On the positive change account, although it is valuable for people to promote democracy, they may promote other positive processes and outcomes. So it is permissible to support the Global Health Impact labeling initiative, and if the last chapter’s argument is right, people must do so whenever that encourages companies to stop violating rights and start living up to their obligations.

6 Beyond Experimental Political Philosophy Evaluating Global Health Impact Certification

6.1.  Introduction Will the Global Health Impact project work?1 If so, what are the next steps in project development? So far, this book argued that everyone has a human right to health that generates rights to access essential medicines. Moreover, it explained how the right provides reason to come up with creative ways to fulfill its dictates. The book argued that by collecting and analyzing data on global health, people can come up with new ways to improve global access to essential drugs and technologies. To illustrate how data can help, it presented a new Global Health Impact model that synthesizes and evaluates health systems data about medicines’ global health consequences. It explained how the models (or similar ones) can support several new Global Health Impact initiatives to extend access to essential medicines around the world—​from Global Health Impact labeling to licensing and investment initiatives. It argued that consumers should generally support a label if that incentivizes companies to respect human rights and start living up to their obligations. Even if one rejects this proposition, however, it is at least permissible for people to promote positive change by purchasing Global Health Impact–​ labeled goods. Doing so might save many lives. This chapter provides some evidence that the Global Health Impact label can incentivize companies to do more for global health. Furthermore, it explains how to gather definitive evidence about other Global Health Impact initiatives’ likely consequences. It canvases some empirical research that may help develop these initiatives. One of the unique things about the Global Health Impact project is its mixture of science and philosophy. So this chapter also reflects on how to best pursue philosophical and scientific inquiry together. It considers how science can inform philosophical theory and how philosophical theory can inform science.

Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

Beyond Experimental Political Philosophy  161 Historically, philosophy and the natural sciences were continuous (Anstey and Vanzo, 2016). Aristotle dissected hyenas. Descartes spent lots of time with his hands in the belly of a cow. Kant gave lectures on geography and anthropology (Appiah, 2008). More recently, some philosophers have started to conduct scientific research once again. Such experimental philosophers tend to view their efforts as a continuation of philosophy as historically practiced. But they also see it as radically new since they are adopting the methods of modern science (Alfano and Leob, 2014). Most experimental philosophy models itself on the psychological literature (Horvath and Grundmann, 2012; Fischer and Collins, 2015; Swain et  al., 2008). That is, philosophers conducting experiments often rely primarily on survey questions to figure out what most people, the “folk,” think about different philosophical puzzles. (For a review of such experimental philosophy and examples, see Hassoun, 2014c; Knobe, 2007a, 2007b; Kauppinen, 2007; Knobe and Nichols, 2007, 2008, 2017) This chapter suggests that philosophers need new types of empirical evidence to answer different kinds of questions (Hassoun, 2014c, 2016e; Andow, 2016; Polonioli, 2017; Woolfolk, 2013). Moreover, this chapter considers how experimental philosophers should pursue empirical work. It argues, for instance, that philosophers who conduct experimental, and other empirical, research (henceforth simply experimental philosophers) should consider adopting sociological, anthropological, historical, and other scientific methods to answer important questions. Empirical inquiry has its limits. Still, it can help make philosophical arguments and evaluate practical proposals to promote global justice and health. Good action-​guiding theories must comport with sound practice. In other words, no one should implement such theories in the actual world if they will not have good, or at least acceptable, results. So, it is important to consider what works in practice as well as theory even if philosophers do not want to engage in empirical research themselves. In considering how philosophers should engage with theoretical and empirical work, I am not trying to win a verbal debate about what qualifies as philosophy or even experimental philosophy. I only argue that philosophers often have reason to engage with, if not do, new empirical work. I  focus, in particular, on arguing that experimental philosophers should consider new methods from a variety of disciplines to help evaluate practical theories. I do not discuss how experimental philosophers should choose these methods here (though, see Hassoun, 2010). I do not care if someone prefers to call the empirical work I suggest these philosophers do something else

162  Ethical Consumption and Political Philosophy besides experimental philosophy. I will persist, however, in referring to it as experimental philosophy not only because of philosophy’s historical roots but because of how I think philosophy should inform science. I believe that philosophical theory often advances good science. This theory does not just provide “stimulus, challenge, [and] interest” (Appiah, 2008, 19). Philosophical theory helps examine, create, and apply scientific methodology. So, this chapter also argues that empirical inquiry often requires philosophical investigation. It does so, in part, by examining the advantages and limitations of the methodology proposed for testing consumers’ perceptions of Global Health Impact products. This chapter argues that researchers must use the right methods in testing such theories before putting them into practice. Different methodologies have different limitations and are better and worse for different purposes. Still, there are ways of addressing potential problems with this chapter’s proposed methodology where they are likely to occur. Philosophical debate can help insure researchers use good methods for the right purposes. Moreover, ethical evaluation can insure that empirical inquiry is permissible. This chapter proceeds as follows. Section 2 argues that philosophers should engage with different kinds of empirical evidence even if they do not want to do science themselves. They can build, arbitrate between, and criticize theories by appeal to empirical evidence. I believe that, upon reflection, few will object to this point. Still, making it sets the stage for subsequent sections’ arguments. Moreover, Section 2 provides a novel argument for engaging with empirical evidence. Most defend using empirical evidence in philosophy by explaining how the evidence allows researchers to challenge appeals to intuition. Some suggest it helps them figure out how the mind works or how to create less culturally biased theories (Knobe and Nichols, 2007). Section 2 argues, instead, that such evidence can help ensure that theories have good, or at least acceptable, results when implemented. (Many take this as a desideratum for good action-​guiding theories that tell people what to do in the actual world.) Moreover, Section 2 suggests that empirical evidence is necessary to establish many philosophical arguments’ conclusions unconditionally. Section 3 presents some survey-​based evidence that Global Health Impact labeling influences the way consumers view pharmaceutical companies. It also explains how researchers might conduct a randomized controlled trial of how Global Health Impact-​labeled products affect consumers’ purchasing decisions in grocery stores or pharmacies. Finally, it explains how the test illustrates a new kind of experimental philosophy. Section 4 argues

Beyond Experimental Political Philosophy  163 that, although most experimental philosophy uses psychological methods to address questions about individuals’ intuitions, experimental philosophers should consider other scientific methods as well. It illustrates its case by considering how to test a few other practical proposals for addressing the access to essential medicines problem, in particular. Section 5 examines empirical evaluation’s limitations. It explores some ways of addressing potential problems where they will likely occur. In doing so, it examines how philosophical inquiry can inform science. Section 6 concludes. Those interested primarily in the Global Health Impact initiative’s science and policy aspects can read sections 3 and 5. They can, then, turn directly to the book’s conclusion.

6.2.  Theory and Practice Most experimental philosophy relevant to global justice and health utilizes surveys to examine “the folk’s” intuitions about, for example, how to help people meet their basic needs; but this section argues that philosophers should consider many other kinds of empirical work (Alfano and Leob, 2014; Hassoun, 2014c). Traditionally, experimental philosophers utilize survey methods (Knobe, 2007a, 2007b; Kauppinen, 2007; Knobe and Nichols, 2017), though philosophers have started to do more sophisticated empirical work and many engage with work by psychologists and (occasionally) other social scientists (Appiah, 2008; Woolfolk, 2013). Survey methods can document individuals’ beliefs. Researchers also need to know, for example, under what conditions these beliefs influence action and whether it is possible to change these conditions (Andow, 2016).2 So, this section argues that there is reason for experimental philosophers to do many new kinds of empirical work. At least, it contends, philosophers often have reason to engage with other kinds of empirical work when they do not have the time, skill, or inclination to do it well themselves. Some, like David Miller (2001), argue that science and philosophical inquiry always depend on each other. Miller argues that philosophers often construe reflective equilibrium (arriving at a balance of judgment after deliberation) too narrowly. They, wrongly, reflect only on their own individual beliefs. He thinks philosophers should expand reflective equilibrium to include considered judgments between individuals. Miller suggests that

164  Ethical Consumption and Political Philosophy Looking at what other people believe about justice, and in particular trying to understand when people disagree and what the ground[s]‌of their disagreement are, are integral to the process of deciding which of . . . [one’s] . . . own beliefs deserve to be taken as “the fixed points.” (Miller, 2001, 56)

Others worry about standard philosophical methodology, whereby philosophers consult their own intuitions from the armchair and assume that they represent ordinary intuitions. While this practice may be appropriate when such an assumption is uncontroversial . . . philosophers have conflicting intuitions, intuitions that may well have been influenced by their own well-​developed theories. (Nahmias et al., 2006, 34)

At least, when making arguments intended to address those whose beliefs differ from one’s own, one should consider others’ perspectives.3 Empirical evidence that others disagree with considered judgments invites reflection on the disagreement’s grounds. Evidence about what people believe is, however, not the only information philosophers interested in developing, or evaluating, action-​guiding theories require.4 Making the case for the Global Health Impact labeling initiative, for instance, requires information about how people will act in different circumstances. Under what conditions (if any) will they purchase products with the label? If people understand the Global Health Impact label, will they support it? If so, will that benefit global health and improve access to essential medicines? If not, can researchers modify the label, or choice situation, so that the proposal promotes global health? After all, if the best-​case scenario suggests the label will have primarily negative consequences, no one should utilize it. Insofar as good theories must comport with sound practice (so that they have good, or at least acceptable, results when implemented), philosophers should take different kinds of empirical evidence about the consequences of implementing their recommendations seriously. Many argue that ought-​ implies-​can—​that is, that people do not need to do things that they cannot do (Sinnott-​Armstrong, 1984; Copp, 2003; Howard-​Snyder, 2006; Vranas, 2007). Others maintain that people need fact-​sensitive action-​guiding theories to decide what they should do, or at least what goals they should aim at, in the actual world (Valentini, 2009; Farrelly, 2007; Copp, 2003; Howard-​Snyder,

Beyond Experimental Political Philosophy  165 2006; Vranas, 2007).5 Moreover, many suggest adequate theories must have good, sustainable consequences (Rawls, 1993; Klosko, 1994; Vanderschraaf, 2006). At least, insofar as good theories must comport with sound practice, different kinds of empirical evidence can help researchers build, arbitrate between, and criticize theories. So, they have reason to take this evidence seriously. Moreover, those interested in gathering data to build, arbitrate between, and criticize theories have reason to gather this evidence.6 A different reason to think many kinds of empirical evidence are useful for building, evaluating, and arbitrating between philosophical theories (and, so, that philosophers have reason to take this evidence seriously, etc.) is this: many philosophical theories contain empirical premises that require substantiation to establish their conclusions unconditionally. Recall, for instance, how this book’s fourth chapter argued that people should purchase Global Health Impact–​labeled goods if the initiative encourages companies to respect rights and start living up to their obligations. This chapter presents evidence that the initiative does this and concludes that consumers should support it. Previous chapters argued that the initiative gives companies an incentive to respect rights and start living up to their obligations if people support it. Still, empirical evidence is essential to see whether people will buy Global Health Impact–​labeled goods and how companies will respond to this incentive. In arguing that empirical evidence is sometimes relevant for creating, evaluating, and criticizing philosophical arguments, I  do not claim that facts are unchangeable or that anyone should take people, practices, or institutions as they are (Cohen, 1991, 2002). I am not objecting to ideal theories that only guide action assuming full compliance or that make other simplifying assumptions (Rawls, 1971; Simmons, 2010; Valentini, 2009). I only claim that philosophers should care about some facts (or truths discernible through scientific inquiry) when evaluating theories that rely upon them. Philosophers should attend carefully to the circumstances that must obtain to apply their theories and how people can, and cannot, change these circumstances (Vanderschraaf, 2006). Those who hope to promote global health often need to know whether they can do so by changing preferences, practices, or institutions. Gathering, and/​or utilizing, the requisite empirical data does not preclude further philosophical inquiry. People may need to know if it is acceptable to change preferences, practices, or institutions when they can to promote global health (or other things that matter).7 Moreover, when no one can, or

166  Ethical Consumption and Political Philosophy must, change these things, philosophers might still argue that they should be different (Estlund, 2014; Cohen, 2008). However, for this chapter’s purposes, the important point is just this:  to come to sound conclusions about the real world, researchers must often take into account agents’ capabilities and capacities and institutions’ strengths and weaknesses.8 The conclusion that philosophers sometimes need empirical evidence to support (fact-​sensitive) theories does not mean that facts are always relevant to philosophical theory or that they are prior to value judgments (Cohen, 2003). One may defend a philosophical view that is not fact-​sensitive—​one may say, for instance, that it is always wrong to lobby for patent protection independent of the consequences. But many theories do rely on factual claims that are worth investigating. This book has argued, for instance, that companies should not lobby for patent protection on essential medicines because doing so often makes it difficult or impossible for people to access these medicines. So, it provided some empirical (as well as theoretical) support for this claim, and further empirical evidence might buttress it. At least, it was important to provide some such empirical evidence because I did not want to qualify the claim. I did not just want to claim that companies should not lobby for patent protection on essential medicines if that makes it difficult or impossible for people to access these medicines. It is compatible with my thesis that, ultimately, all theories must rest on non-​factual claims (Cohen, 2003). Facts may never tell people what foundational philosophical principles to embrace.9 I only claim that researchers sometimes need facts that they can only acquire through empirical investigation about much more than individuals’ beliefs to build, justify, and criticize philosophical theories.10 The next two sections argue, at greater length, that experimental philosophers should broaden their remit because more than individuals’ beliefs matter for philosophical theory. They do not deny that researchers can benefit from dividing labor between the theoretical and empirical sciences. Empirical, like philosophical, arguments can be better or worse; and it is hard to do good empirical work (Woolfolk, 2013). When philosophers have the interest, inclination, and capacity, they sometimes contribute to science. Eric Agner and colleagues have found, for instance, that those who are happier are more likely to adhere to medical treatment for at least some diseases. Other experimental philosophers also examine, and/​or work with scientists to answer, important empirical questions (see, e.g., Cushman et al., 2008; Hassoun et al., 2016; Lindauer and Barry, 2017; Hassoun, 2009; Paxton et al., 2012; Wilhelm et al., 2018 and subsequent sections’ examples). Still,

Beyond Experimental Political Philosophy  167 not everyone is, or should be, an experimental philosopher. Some lack the capacity and training to do good science. Moreover, some purely theoretical research is incredibly important. However, even those who have no interest in doing experimental philosophy should often engage seriously with new scientific work (Hassoun, 2014c; Lichtenberg, 2004). Researchers can often build, arbitrate between, and criticize theories by appeal to such evidence partly because it can help people evaluate how proposals work in practice. At least, insofar as researchers must ensure good theory comports with sound practice, they should take many kinds of empirical evidence seriously. The next two sections provide concrete examples of theories meriting empirical inquiry to support this case.

6.3.  Testing Global Health Impact To make the case for engaging with experimental, and other empirical, work, consider, first, some tests of Global Health Impact labels. Previous chapters argued, at length, that the prospects for a Global Health Impact label are promising, and that consumers should support the labeling initiative if it becomes a realistic possibility. But is it realistic? Empirical evidence helps researchers evaluate how the label influences consumers’ willingness to pay for products and their perception of brand quality. Researchers can also analyze data to see how companies themselves are likely to respond to the label and estimate its global health consequences. Similar research, for example, on socially responsible investors’ perceptions of the rating system, is also important. Researchers have done the lab work, and the results are promising: the Global Health Impact label influences how consumers perceive company and brand quality for well-​known products as diverse as sunscreen and pain medicine.11 The label influences consumers’ beliefs about how much firms care about people and global health for lesser-​known brands, in particular. The experiment involved approximately 300 students at Binghamton University. In the control condition, students saw a picture of the product and company’s brand with some basic information about the item. For Sanofi’s BullFrog Sunscreen, students saw the display in the control condition (Figure 6.1). In the experimental condition, students saw a picture of the product and company’s brand with the label and some information about why the

168  Ethical Consumption and Political Philosophy

Figure 6.1  Control Condition—​Product Information Only

company was awarded the label. For Sanfoi’s BullFrog Sunscreen, students saw the display in the experimental condition (Figure 6.2). Next, researchers asked participants to what extent they agreed or disagreed with the following statements (on a 7-​point Likert scale): • I am very familiar with BullFrog. • I am very familiar with Sanofi (the company that makes BullFrog). • The information in the display was very useful in deciding if I should buy BullFrog lotion. • The information in the display convinced me that I should buy BullFrog lotion. • I am very likely to buy BullFrog lotion at this time (and not look for any other brand of sunscreen). • I think that BullFrog is a very effective sunscreen. • I have a favorable opinion of BullFrog.

Beyond Experimental Political Philosophy  169

Figure 6.2  Experimental Condition—​Label Information Only



• I have a positive view of BullFrog. • I have a favorable opinion of Sanofi, the company. • I have a positive view of Sanofi, the company. • I believe that Sanofi, as a company, cares about people.

Researchers repeated similar experiments for a few other products from other companies. They found that the Global Health Impact label had a larger impact on the way consumers view brand and company quality for less familiar products (Figure 6.3). The top bar indicates results when students saw an advertisement for sunscreen with a Global Health Impact label. The bottom bar indicates results when students saw an advertisement for sunscreen without a label. Unless there is some reason to think students are more likely than others to respond to things with ethical labels, this provides good evidence that the label can affect brand perception and company reputation. A much larger sample size

170  Ethical Consumption and Political Philosophy BullFrog/Sanofi Company Cares for Global Health

4.88

3.78

Caring Company

4.07

Good Company

4.65

3.93

Brand Positivity

4.26

Brand Favorability Brand Effectiveness 3.19 3.15

Likelihood of Buying Information Helps to Buy

3.85 3.77

4.26

4.88 5.08 4.85

3.92 4.11 5.23 5.00

Information about Brand 1.77 1.67

Company Familiarity Brand Familiarity 0

1

2.19 1.96 2

Label Information Only

3

4

5

6

Attribute Information Only

Figure 6.3  Experiment Results

would be necessary to register differences in willingness to purchase the products, but improved brand and company reputation may be even more important to companies than direct sales (as these factors affect what prices companies can charge for their products more generally) (Cretu and Brodie, 2007; Anselmsson et al., 2014). Field research can establish that consumers will actually purchase products with Global Health Impact labels in grocery stores or pharmacies. Much empirical work illustrates how people’s answers to surveys depend on how researchers frame questions (Scholl, 2008). The way people act also depends on contextual factors (Scholl, 2008; Sirken et al., 1999). People’s willingness to contribute to causes depends, for instance, on how much time pressure they feel, what others do, resources, education, and self-​perception, among other things (Almas et al., 2016; Darley and Batson, 1973; Kessler and Milkman, 2014; Beaman et al., 1978). Ideally, experiments mimic real-​world conditions very closely.12 A field experiment provides the gold standard as it most closely replicates the actual conditions in the real world (Hassoun, 2010). Many high-​ quality experimental studies demonstrating that consumers often purchase ethically labeled goods—​like fair trade coffee—​ provide blueprints for a field experiment on a Global Health Impact label (Hainmueller et  al., 2015; Hiscox and Smyth, 2011; Hiscox et  al., 2011). People may not respond similarly to Global Health Impact and other ethical

Beyond Experimental Political Philosophy  171 labels, even those focusing on firms’ contributions. (Moreover, see the third chapter and the introduction to the third part of this book for some other ways that the label differs from others on the market.) Still, researchers can test the labels in a similar way. To conduct a field experiment, researchers can work with grocery stores or pharmacies and a pharmaceutical company to see if consumers purchase key products with the Global Health Impact label. Alternatively, they can conduct an experiment using online platforms, like eBay, to see if consumers prefer products with the label to equivalent products without it (Hainmueller et al., 2015). Although the existing empirical evidence is promising, further experimental evidence can substantiate the preceding chapters’ argument for purchasing goods with a Global Health Impact label and help develop the labeling proposal. That argument was conditional on the label creating incentives for companies to extend access to essential medicines more broadly. Previous chapters provided some data on other ethical consumption initiatives’ success. Still, further research is necessary to see if consumers will purchase products from Global Health Impact–​certified companies. A field experiment can establish that the label creates effective incentives for companies to extend access to essential medicines more broadly (though companies might also want to secure the label for other reasons—​e.g., to increase their brand’s perceived quality or even just because they believe it is important). Consider one experimental design to test the label in grocery stores or pharmacies. Researchers can put a Global Health Impact label on one or two over-​the-​counter products to collect data on changes in consumers’ willingness to purchase these products compared to otherwise similar generic products from sales. Depending on sales volumes and price fluctuations, the experiment might take place in about 30 grocery stores or pharmacies. Researchers can split stores into pairs based on similar sales history and location and, depending on sales volumes, switch off between treatment and control arms for about four-​week segments (this may require running each experimental arm at each individual store for about eight weeks). Researchers might give BullFrog sunblock a Global Health Impact label, for instance. They can briefly explain the label’s significance on the sales tag on the shelf underneath the product. Researchers can give another sunblock, such as Price Chopper TopCare, a similar tag that only states “Premium Sunblock” (perhaps with some basic information about the company providing it). They can then compare changes in sales between the products controlling for

172  Ethical Consumption and Political Philosophy various potentially confounding factors (e.g., time of year, temperature, location) to estimate the label’s effect. To ensure that consumers know about the Global Health Impact label, researchers can also conduct an education campaign preceding the experiment. They may make fliers available at the register and next to the relevant products for several weeks prior to the experiment. Researchers may also visit the stores to distribute fliers to consumers directly during this time period. Working with a highly ranked pharmaceutical company would open the door to other advertising efforts in the area (e.g., on television or the internet). These efforts may better reflect what would happen if a company decided to use a label more widely. Researchers can collect data on how well different sunscreens sell at different stores for several weeks prior to, during, and after experimental setup. Although the initial lab research is promising, further lab research on how to present information about the Global Health Impact labeling initiative to consumers can help maximize the experiment’s prospects for success, and existing marketing research can also inform the initiative.13 What will happen with the label depends on everything from the label’s design to what people believe about the initiative. Marketing guidelines for attracting socially conscious consumers suggest that many factors enhance consumers’ willingness to engage in ethical consumption. These include their self-​perception and values; how much they know about companies’ good actions; the fit between company brand, product, and initiatives; whether they believe their purchases make a difference; their attitude toward the firm; and the product’s cost (Bissinger and Leufkens, 2017; Van der Merwe and Venter, 2010; Ozcaglar‐Toulouse et al., 2006; Uusitalo and Oksanen, 2004; Young et  al., 2009; Nicholls and Lee, 2006; Firstenfeld, 2013; Loureiro and Lotade, 2005; De Pelsmacker et  al., 2005). It also matters that consumers understand the labels and the initiative (Network for Business Sustainability, 2011).14 Consumers tend to resist ethical consumption if they believe companies act badly in some other ways or they feel misled or confused at the point of purchase. If brands compete or consumers need to make trade-​offs to buy the product, that also reduces sales. Many consumers will sacrifice aspects of product quality (e.g., taste) for social impact.15 Still, companies perceived as too self-​promoting may face backlash from consumers if problems arise (Network for Business Sustainability, 2011).16

Beyond Experimental Political Philosophy  173 It is important that labels are simple and clear and that the certifying organization is highly credible. If the decision to purchase is too difficult, consumers will buy ethically labeled products less. It is important that the products are accessible and easy to find. It must be easy for consumers to get further information, but too much information can be counterproductive (Young et al., 2009; Uusitalo and Oksanen, 2004). Incentives may also help encourage ethical consumption (Young et  al., 2009; De Pelsmacker et  al., 2005). In some studies, price reductions work better than moral appeals or additional information (Andorfer and Liebe, 2015). To build awareness of ethical labels, it is essential to develop a good marketing and promotion campaign. Consumers may prefer information on the product packages, leaflets, brochures, and television documentaries to mass marketing (De Pelsmacker et al., 2005). Clear colors and a good design can also be helpful “search attributes” (De Pelsmacker et  al., 2005; Ozcaglar-​Toulouse et al., 2006). As social networks tend to influence consumption decisions, it may also be worth advertising through social media (De Pelsmacker et al., 2005; Ozcaglar-​Toulouse et al., 2006; Nicholls and Lee, 2006).17 Some psychological and cross-​cultural research may help close the gap between expressed preferences for ethical consumption and actual purchasing behavior (Carrington et al., 2010; Kim et al., 2010). Moreover, further empirical investigation can help develop and fine-​tune the rating system itself. Experimental or sales data can help researchers determine what products companies should label and under what conditions. The label may work best for certain brands or product classes. It may prove ineffective for others or only work well when brought to consumers’ attention with product placement or advertising efforts.18 The label’s design and location may matter as well as other background factors—​like consumers’ education levels and how they utilize social networks (Starr, 2009; Grunert et al., 2014). Researchers can investigate the incentive’s effects post-​implementation further. Looking at experimental data, researchers can estimate the label’s value to pharmaceutical companies (taking into account different features of companies and the market for their products), but they should also monitor how companies respond to a label after adopting it. Field data will help researchers see if the label generates new investment in R&D on essential medicines or succeeds in getting companies to extend access to existing medicines more broadly. This will allow researchers to estimate the label’s actual impact on access to essential medicines.

174  Ethical Consumption and Political Philosophy Moreover, researchers should look for unintended negative consequences of the incentives labeling creates and modify the rating system accordingly (assuming, of course, that the evidence suggests this is possible). This will likely require monitoring after introducing the label into the marketplace as well as firms possibly responding differently to the label over time. Firms may improve their performance to secure the label initially. They may then do much less in subsequent years, if there is not sufficient pressure to improve performance from competitors who want to secure the label. The data may show, for instance, that standards for receiving a label must constantly rise. Researchers might also examine the prospects for other Global Health Impact projects. Researchers can consider how they will affect global health by, for instance, examining socially responsible investors’, universities’, pharmacies’, and benefits managers’ perceptions of the rating system. A survey of socially responsible investment companies’ opinions about the Index might tell us, for instance, whether they are willing to rely upon it in creating socially responsible investment funds. Researchers can also look at the efforts’ effects if the Index does guide investor behavior. Alternately, researchers might consider whether policymakers are willing to use the Global Health Impact Index. This research may demonstrate that the rating system can improve access to medicines through legal channels as well as economic ones. Recall Ruth Okediji’s commentary on the High-​ Level Panel on Access to Essential Medicines. She suggested states require “all pharmaceutical firms to achieve, within a specified timeframe, a designated score on a ‘social-​responsibility index’ ” like the Global Health Impact Index (see Okediji’s contribution in United Nations Secretary-​General’s High-​Level Panel, 2016, 72). Empirical evaluation would help estimate the likely impact on access to medicines if states adopt such policies. In short, many new kinds of fruitful empirical research can help improve Global Health Impact initiatives’ design and implementation. Researchers can test everything from marketing to distribution channels. They can improve the incentives the initiatives create, insure their efficacy, and monitor for negative consequences. Other initiatives present similar opportunities for innovative and important empirical work on global justice and health. Such tests illustrate the new experimental philosophy this chapter advocates, but even those who do not want to engage in empirical research may rely on it in evaluating the Global Health Impact initiatives. The proposed tests qualify as experimental philosophy, as I  use the term, because they utilize new (social scientific and marketing research) methods to help

Beyond Experimental Political Philosophy  175 evaluate a practical theory and consider individuals’ actions and not just beliefs. Testing the Global Health Impact label’s effect on consumers’ purchasing behavior in grocery stores or pharmacies, for instance, provides information about people’s actions and not just their beliefs. Moreover, it employs a scientific methodology much more common in political science, marketing, medicine, and economics than psychology. Again, I do not care too much if one prefers to use a different term than experimental philosophy for the kind of inquiry at issue. I am only concerned to argue that philosophers should engage with, if not do, new empirical work. I call this work experimental philosophy because it not only supports philosophical theory but embodies it (as the following sections argue). The final section explains how philosophical inquiry is important for examining, creating, and applying the scientific methodology such experiments employ. First, however, the next section provides some other examples of the new kind of experimental philosophy I advocate. Those who do not want to conduct such studies themselves can draw on them in making important philosophical arguments (Andreoni and Miller, 2002; Tollefson, 2015; Cappelen et al., 2008; Aguiar et al., 2007).

6.4.  New Questions, New Methodologies Beyond testing the Global Health Impact initiatives, political theorists should consider new experimental and other empirical work relevant to global justice and health. After all, many argue that, like new medicines, aid efforts can be harmful as well as helpful (Burnside and Dollar, 2000; Moyo, 2009; Mwenda, 2006; Easterly, 2006; Acemoglu and Robinson, 2014; Sachs, 2005). Few experimental philosophers have studied how to promote distributive justice or global health empirically (Hassoun, 2014c). However, there is a lot of research on the topic in other disciplines that philosophers might emulate and/​or explore (Andreoni and Miller, 2002; Tollefson, 2015). Some studies are useful for addressing skepticism about proposals for positive change. Researchers find, for instance, that people are willing to give to others irrespective of geographical borders and that they care that everyone has enough healthcare and other resources (Cappelen et al., 2008; Aguiar et al., 2007; Frohlich et  al., 1987; Yaari and Bar-​Hillel, 1984; Hassoun, 2014c). Others suggest that people prefer to give to those with whom they have collaborated and that they consider luck and responsibility in deciding how to aid

176  Ethical Consumption and Political Philosophy (Cappelen et al., 2013). Not surprisingly, individuals’ political orientations, age, and religion (among other things) influence their actions (Engel, 2011; Fehr and Fischbacher, 2003; Daniels and von der Ruhr, 2010; Cappelen et al., 2013). This section suggests that groundbreaking proposals in global ethics merit experimental, or other empirical, research that goes far beyond asking the folk about their intuitions.19 Moreover, testing these proposals requires utilizing methods from many disciplines including computer science, economics, anthropology, history, and medicine. Historically bioethics is among the philosophical subdisciplines most engaged with empirical research that has had a concrete impact on policy, but I believe it is important to expand this inquiry too (Kon, 2009). A recent study classifies empirical work in bioethics under three rough categories:20 (1) purely descriptive research, for example, asking questions about the nature of healthcare practice and patients’ experiences; (2) research looking at how the practice compares to a normative ideal, for example, seeing whether researchers actually secure informed consent or disclose serious medical errors; (3) prescriptive research that attempts to improve care in some way, for example, by looking at sex-​or race-​based disparities in treatment outcomes (Kon, 2009). The authors suggest that each level of inquiry can naturally lead to the next: once we see where potential problems lie, we can investigate and then test tools for overcoming them. The research this chapter proposes on the Global Health Impact project falls most clearly into the last category (as does most of the research I propose later parts of this chapter). But I think it is important for bioethicists to do, or at least engage with, more empirical research at the collective—​population—​level. So, preliminaries aside, let us consider how to test philosophical proposals for promoting global health and justice further. Several global ethicists argue for new ways to promote global justice and health (Hollis and Pogge, 2008; Pogge, 2008; Wenar, 2007). Their “mid-​level” theories fill a neglected gap between high-​level philosophical argument and empirical research (Hassoun, 2012b).21 Besides the Global Health Impact proposal, for instance, this book discussed Hollis and Pogge’s suggestion to incentivize pharmaceutical companies to provide greater access to essential medicines through the Health Impact Fund. Again, the Health Impact Fund would offer a second (voluntary) patent system for essential drugs and technologies (Hollis and Pogge, 2008). Supported by extensive philosophical argument, this system does not give companies a limited monopoly for their inventions. Rather, it rewards inventors based on how much their inventions

Beyond Experimental Political Philosophy  177 contribute to ameliorating the global disease burden. I hope that this, or a similar, proposal can incentivize companies to extend access to essential medicines more broadly by doing new R&D on, and lowering their prices for, these medicines (Hollis and Pogge, 2008; Hubbard and Love, 2004). People might also address global health problems by expanding web-​based charitable giving (and lending) platforms more broadly. Kiva—​an online micro-​ finance platform that allows people to lend money around the world—​might focus, for instance, on giving loans to people to purchase essential medicines. Alternatively, individuals might prefer to give loans to institutions promoting global health (or support global justice in other ways) through a Kiva-​like platform.22 Researchers can test these proposals to see if they work. So, what follows examines a few new empirical studies philosophers might run employing different (social) scientific methods to make the case for these initiatives. Consider how Hollis and Pogge suggest testing the Health Impact Fund. They hope to pilot the proposal for one or two drugs in one country. They want to convince pharmaceutical companies to lower their prices for drugs for a particular disease (e.g., hemophilia) at select treatment centers in exchange for a payment based on drugs’ performance at reducing the disease burden on some measure (e.g., how many “bleeds” treatment centers report). To measure health impact, Pogge plans to track sales, evaluate education programs with surveys, and obtain stratified drug usage samples. A  successful pilot would demonstrate that researchers can measure and reward companies for drug performance and incentivize investments that increase drug impact. The pilot would observe companies’ marketing efforts in response to the payment system and provide essential information about the number of dimensions researchers need to measure different drugs’ impact in different populations. To carry out the pilot, researchers can secure data from treatment centers, educational centers, and pharmaceutical sales; and Pogge (2013) estimates that the pilot will cost at least half a million dollars to complete. Researchers can more easily test the proposal to expand Kiva for health. Since Kiva collects data on loan repayment and what people attend to most in giving aid, researchers might study it easily. Elsewhere, I have worked with an economist and computer scientist to examine how people choose to lend money through Kiva using this database (Hassoun et al., 2016). Controlling for many factors such as borrowers’ gender, month, lenders’ location, and loan purpose, we take the average income in a country as a proxy for the

178  Ethical Consumption and Political Philosophy amount individuals need and funding time as a proxy for how much individuals care about aiding those in need. The results suggest that people fund loans to those in greater need more quickly than loans to those who need less, at least until people receiving aid rise above some income threshold. Moreover, it seems that people care more about helping those further below the threshold. Researchers could create a similar study to see whether people lend (or give) to those with serious health issues. People need to know whether (and, if so, how) such proposals work to embrace, and improve upon, them. The next section considers testing’s limits and argues that, just as researchers often need empirical evidence to construct good theories, they often need theoretical inquiry to conduct good empirical research. Different methodologies have different limitations and are better and worse for different purposes. Theoretical argument can help make the case for using a particular methodology given researchers’ objectives. It can also help ensure that researchers are answering the most important questions in a way that is ethically acceptable.

6.5.  Testing’s Limits: The Need for Philosophical Inquiry Although researchers can use many different methods to test proposals for positive change, every methodology has advantages and drawbacks, and philosophical theory is necessary for examining, creating, and applying any particular scientific methodology. To make this case, this section will consider just the methodology proposed for studying the Global Health Impact proposal: a randomized controlled field trial. I do not argue that philosophical theory is often necessary to decide when and how to apply this methodology because I  think it is difficult to justify using it to test the Global Health Impact labeling initiative. (Though, I  think considering when it is appropriate to use the methodology tells researchers something important about how to test the label—​it may be best to test the proposal during rollout.) Rather, I believe that it is independently important to illustrate how philosophical inquiry is relevant to the kind of empirical studies this chapter defends (and can help motivate calling the kind of inquiry required to carry out the empirical work the chapter advocates experimental philosophy). Randomized controlled trials can have high internal validity. That is, if the randomly selected population truly represents the study population and

Beyond Experimental Political Philosophy  179 consumers show a clear preference for labeled goods, the study provides strong evidence that the label works for that population. So, if one randomly selects stores in a certain area to participate in the trial and finds the label works in those stores, that provides good evidence that it works for similar stores in that area. Although randomization cannot eliminate all bias, it helps; and there are other ways of addressing many problems. Simply due to chance, randomly selected stores may differ from other stores in the area. Still, randomization guards against unintended biases. Moreover, there are other ways to avoid problematic biases due to chance. Matching stores based on potentially confounding factors—​like sales history and location—​and selecting randomly from the subsets may help, for instance. Non-​random selection makes bias more likely: if one only selects the largest stores or those closest to major metropolitan areas, one has more reason to worry about biasing the sample. It might well turn out that such stores only serve relatively affluent people living in cities. If so, the label might not work well elsewhere. Perfectly randomizing stores, even when that does not create chancy problems, cannot eliminate all bias, however. Some people may come to stores because they want to participate in the study or because they receive special treatment in the experiment—​undermining the point of randomization (Peters et al., 2017; World Health Organization, 1998). Sometimes studies also find positive results simply because people know they are participating in a study. Researchers call this the Hawthorne or John Henry effect. Placebo controls may help address the first issue, and increasing evaluation’s length and scale may help address the second (Hassoun, 2010; Peters et al., 2017).23 Even the best randomized controlled trials that do not suffer from these problems have their limits, however. They have low external validity: their results may not generalize to other areas or larger scales (Peters et al., 2017; Al-​Ubaydli et  al., 2017; Muralidharan and Niehaus, 2017; Banerjee et  al., 2017). It is not feasible to select randomly from all the grocery stores that might use the label in a single country, never mind globally. So, even if a randomized controlled trial shows that consumers purchase Global Health Impact–​labeled goods in some area, stores in different locations might serve very different populations unwilling to purchase Global Health Impact–​ labeled goods (Hassoun, 2010). Similarly, it is important that the relevant causal factors do not change between testing and generalization (Basu, 2014; Deaton and Cartwright, 2017). If stores stop carrying the same brands or

180  Ethical Consumption and Political Philosophy introduce new competing labels, the Global Health Impact label may function differently from what the tests suggest. Moreover, there are many interesting philosophical assumptions that one must make to accept that randomized controlled trial results will generalize even in the same population. One must believe, for instance, that the results will generalize for a non-​randomly selected individual, or subpopulation, within the population. Non-​randomly selected individuals may differ in some important ways from most randomly selected individuals (Basu, 2014).24 More generally, to conclude that randomized controlled trials’ results will generalize, even in the same population, one must assume that the study controls for all the relevant factors.25 Randomized controlled studies, like most others, also raise pressing research ethics questions: Must subjects give their informed consent to participate in studies? Can researchers test programs that may harm people? Are the benefits of the study fairly distributed? How can researchers avoid exploiting the global poor in doing research in developing country contexts? And so forth (Nwabueze, 2013). There are also many ethical norms researchers may need to comply with that philosophers engaging in empirical research have yet to adopt. Few philosophy journals have publicized standards for authorship and disclosure of conflicts of interest, replication of research results, and so forth (Polonioli, 2017; Eckenwiler and Cohn, 2007; Hassoun, 2016e; Pritchard, 1995). Finally, there is the issue of cost. Must people always test proposals rigorously before implementing them? Conducting empirical studies (especially randomized controlled studies) often costs a lot. People may have better ways to use their resources. Studies may also pose risks to participants, and there are potential risks and benefits of implementing proposals without testing too. Researchers need to evaluate the right things in the right ways (Hammer, 2017; Tollefson, 2015; Rosen et al., 2006). We need further philosophical, as well as empirical, inquiry to address these issues. Where necessary, researchers can conduct additional randomized controlled trials (or other empirical studies) to see if their results generalize. Researchers can then systematically review existing studies to come to general conclusions (as medical decision makers do in healthcare settings). Lacking a complete characterization of relevant background conditions, however, philosophical argument is necessary to decide which are relevant.26 Philosophical argument can support using a different methodology

Beyond Experimental Political Philosophy  181 or provide reasons to object to researchers’ objectives.27 It can help ensure that researchers are answering the most important questions in good ways. Consider how philosophical inquiry might fruitfully inform debates about whether it is acceptable to carry out a randomized controlled trial of the Global Health Impact label, for instance. There is little philosophical discussion of scientific research ethics outside medical contexts, but some of the discussion in the biomedical ethics literature is relevant.28 On the most demanding accounts of what ethical research requires, researchers must not only secure participants’ consent but compensate people for the risks of participating in randomized controlled trials and ensure that their research’s benefits are widely distributed (Wendler, 2017). A  lot of debate focuses on what constitutes consent, acceptable risk imposition, fair distribution of benefits, and what kinds of research institutional review boards should approve (London, 2006; Nwabueze, 2013). However, different kinds of experiments pose different ethical questions. Is it permissible to create a control group (and withhold immediate aid) to conduct an experimental evaluation of a humanitarian intervention? How can researchers address the risks of experiments creating perverse incentives to delay aid in circumstances where doing so will let researchers conclude that the aid has a larger effect? In some cases, researchers may do better to conduct other kinds of (e.g., quasi-​experimental) evaluations (Puri et  al., 2017). Further philosophical inquiry is necessary to see what tests are permissible in different circumstances and extend research ethics beyond the medical domain. Fortunately, a Global Health Impact product label is not likely to pose significant risks to participants (and, if properly designed, may be otherwise morally unobjectionable). So, institutional review boards are likely to exempt this test from the approvals process. For the same reason, it may be permissible to create the label without rigorous pre-​implementation testing and to monitor its actual consequences in the field. This is probably not the case for the Kiva proposals, however. Finally, consider a philosophical argument for taking into account the costs of experimentation in deciding whether it is necessary and permissible. One might argue that researchers do not always need to test proposals rigorously before implementing them: it depends how much they cost to test, their risks and benefits, and what else researchers can do with the money. If this is right, implementing the Global Health Impact label even without extensive testing seems fine. The label may bring great benefits, but no one will suffer if

182  Ethical Consumption and Political Philosophy the label does not work. Given the size of the incentive necessary to support the Health Impact Fund, on the other hand, testing is plausibly important. This tells researchers something important about how to test a Global Health Impact label. Phasing in the label to different locations randomly may allow researchers the benefit of a randomized controlled trial at low cost (Rosen et al., 2006). Further study after full implementation can help determine actual costs and benefits for different stakeholders and improve the labeling initiative in the future.29 So, companies should just acquire sales data post-​implementation to evaluate the label’s actual effects and make decisions about it on that basis.

6.6. Conclusion This chapter considered the prospects for establishing that the Global Health Impact project will work. In doing so, it argued that philosophers should engage seriously with many kinds of empirical evidence and that philosophical inquiry can help ensure scientific evaluation is significant, effective, and ethical. First, the chapter argued that, insofar as researchers should make sure good theory comports with sound practice, they should take empirical evidence about policy proposals’ effectiveness seriously. At least, those who want to provide, arbitrate between, and/​or criticize action-​guiding theories should consider such evidence. Although dividing labor can bring great benefits, I do not see why philosophers cannot do good empirical work. Some might argue that what I propose is no longer experimental, or even empirical, philosophy. Even if these critics are right, I do not see why philosophers should not do it.30 The important question, to my mind, is not “Is this philosophy?” but “What do we want philosophy to be?” Or, better, “What is it important to do?” Even if philosophers do not conduct any empirical research, however, they should engage with new methodologically sophisticated experimental (and other empirical) work in addition to traditional experimental philosophy. I believe philosophers should “sustain a variety of traditions of reflection on questions that matter” (Appiah, 2008, 20).31 Those on the cutting edge are already taking up the challenge. In making the case that philosophers should engage seriously with many kinds of empirical evidence, this chapter presented a proposal for testing the Global Health Impact label’s effect on consumers’ purchasing decisions. It

Beyond Experimental Political Philosophy  183 explained how carrying out this test illustrates the new approach to experimental philosophy it advocates. Most experimental philosophy uses psychological methods to address questions about individuals’ intuitions. However, experimental philosophers should use other scientific methods to engage seriously with new questions (for some examples of such studies, see Cappelen et  al., 2008; Palmer et  al., 2013; Hassoun et  al., 2016; Hainmueller et  al., 2015). So, this chapter also illustrated its case by considering some new tests researchers might use to evaluate other promising proposals for improving global health. Like theoretical inquiry, however, empirical research has its limits. So, this chapter considered the methodology proposed for studying the Global Health Impact proposal, in particular: a randomized controlled field trial. Randomized controlled trials can have high internal validity but cannot eliminate all bias. Moreover, they have low external validity: their results may not generalize to other areas. Generalizing from these studies also requires some controversial philosophical assumptions if not a theory and further testing. Moreover, randomized controlled studies, like most others, raise pressing research ethics questions:  must researchers secure participants’ consent, compensate people for participation, and ensure their research’s benefits are widely distributed? Finally, there is the issue of cost. Is testing worth the expense—​financially and otherwise? Further philosophical, as well as empirical, inquiry is necessary to address these questions and improve the methodology and its application. So, this chapter concluded that just as philosophers can benefit from working with scientists, scientists can benefit from working with philosophers. Good theories often depend on good empirical work, but often good empirical work also depends on having a good theory. Whether theories merit empirical investigation depends on one’s philosophical view. Moreover, when theories merit empirical study, researchers often need philosophical inquiry to clarify what they hope to achieve with empirical research (Deaton, 2009). Philosophical inquiry can help ensure that researchers answer the most important questions in ethically acceptable ways. Scientists and philosophers can collaborate to test the Global Health Impact project further, but, even as it stands, there is reason to support it. The book argued that everyone has a human right to health that gives people reason to try hard to find ways to extend global access to essential medicines. It explained how data on global health can help extend access to these medicines around the world. It argued, for instance, that consumers should

184  Ethical Consumption and Political Philosophy purchase Global Health Impact–​labeled goods insofar as that incentivizes companies to respect human rights and start living up to their obligations. Although it is worth testing such proposals further post-​implementation, I believe people should support them. We cannot ensure everyone has access to essential medicines, never mind alleviate all global health problems, overnight. Still, there are many things we can, and must, do now.

Conclusion Beyond Global Health Impact Labeling, Licensing, and Investment: Advancing Public Health

C.1. Review The book began by making the case for a human right to health and to access essential medicines, in particular. It defended the right against recent critics. The second section explained the Global Health Impact initiatives. The final section made the case for consuming things with Global Health Impact and similar ethical labels and considered empirical evidence that can support such initiatives. More precisely, the first chapter suggested that everyone should have an enforceable legal human right to health that includes a right to access essential medicines to treat diseases like malaria, tuberculosis (TB), and HIV/​ AIDS because it protects individuals’ ability to live minimally good lives. It sketched an account of the minimally good life that has some advantages over the main alternative. It argued that a basic minimum of health supports, and may even partly constitute, such lives. Moreover, it argued that the right (partly because it generates a derivative right to access essential medicines) protects this basic minimum. So, the first chapter concluded that everyone should have an enforceable legal human right to health. The second chapter argued that the human right to health can help claimants, advocates, and duty bearers find ways to fulfill everyone’s claims. Even if this right cannot provide guidance for distributing scarce resources, the chapter argued that we should not reject it; the human right to health provides hope that can foster the virtue I  call creative resolve. The right inspires a fundamental commitment to finding creative solutions to apparently tragic dilemmas; it gives claimants, advocates, and duty bearers a response to apparent tragedy in motivating them to search for ways to avoid it. The third chapter presented some creative new ways to use data on global health to address the access to medicines problem. It suggested Global Health Impact. Nicole Hassoun, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780197514993.001.0001

186 Conclusion utilizing information about medicines’ global health consequences to create incentives for positive change. More precisely, it claimed that having something like the Global Health Impact index provides a mechanism for incentivizing pharmaceutical companies and other organizations to extend access to essential drugs and technologies around the world. It opens the door to fruitful social activism including ethical labeling, fair licensing, lobbying insurance companies to include Global Health Impact products in their formularies, and so forth. The fourth chapter made the moral case for supporting a Global Health Impact labeling initiative, in particular. It argued that (1)  pharmaceutical companies violate rights and (2) do not do enough to address the access to medicines issue, so (3) if the initiative helps rectify these problems, people should generally purchase goods from Global Health Impact–​certified companies. A similar argument might support many other ethical consumption initiatives as well. The fifth chapter defended the new perspective on how consumers should think about their basic economic powers supporting the book’s argument for purchasing Global Health Impact–​labeled goods. It defended positive change consumption: Under just institutions, people can consume what they want as long as they respect the institutions’ rules. Absent such institutions, significant moral constraints on consumption exist. Against recent critics, it argued that consumers can aim at democratic change but need not always do so. Democratic constraints may prevent truly positive change; but, at the same time, democracy is important for bringing about such change. Although people can promote democracy, they can also promote other positive processes and outcomes. This book’s final chapter considered how examining the prospects for Global Health Impact initiatives might expand traditional philosophical inquiry’s domain. It presented a proposal for testing consumers’ willingness to make decisions based on a Global Health Impact label. The basic idea is to put a Global Health Impact label on a few over-​the-​counter products and to collect data on changes in consumers’ willingness to purchase these products compared to otherwise similar products from sales. It also considered how researchers might test other Global Health Impact initiatives—​from socially responsible investment to Global Health Impact licensing. Although most experimental philosophy focuses on individuals’ intuitions and models itself on the psychological literature, other disciplines employ other useful methods for answering important questions experimental philosophers

Conclusion  187 might want to address. Empirical inquiry has its limits, but new experimental work supports practical proposals for promoting positive social change. If good theories should guide action, they should comport with sound practice. Moreover, it argued, philosophical inquiry can support empirical work as well.

C.2. Alternatives Even if no one can implement this book’s initiatives for addressing the access to medicines problem, there are many good reasons to try to understand medicines’ global health consequences. Among other things, health impact data, whether provided by the Global Health Impact Organization or another group, like Avenir Health, can help to 1) evaluate international institutions’ and/​or country-​level contributions to global health 2) secure new resources for countries and international agencies effectively promoting health 3) prioritize funding across countries, diseases, or interventions 4) guide health resource distribution between or within countries 5) improve global health governance Recall that the Global Fund considered using the Global Health Impact index as a metric for the lives saved with their interventions and it informed discussions of their methodology (Hassoun and Hollis, 2014). It could similarly serve as the basis for evaluating other international health organizations’ efforts. These evaluations often influence how these organizations distribute their funds, price their products, and focus their efforts (Global Fund, 2016). Already the World Health Organization (WHO), TB Alliance, and several pharmaceutical companies utilize the information the index provides. The US Pharmacopeia and Johnson & Johnson are considering developing, or utilizing, health impact ratings to guide their pricing and development efforts. Other organizations, like the International AIDS Vaccine Initiative, have expressed interest in the Global Health Impact project; and the TB Alliance and the WHO’s TB section use the preliminary model for advocacy purposes. If the index helps these organizations improve their policies, it will improve global health governance.

188 Conclusion To see what information the index provides and what questions it raises, as well as how people might potentially use it in the future, note that the index allows users to look at individual drug scores and the relative impact they have on the diseases in the model as well as drug scores aggregated by company within countries. On the original model, medicines had an approximately equal impact on malaria and TB in 2010, although their impact on HIV/​AIDS and neglected tropical diseases (NTDs) was significantly lower. The most impactful drugs included artemether-​lumefantrine, artesunate amodiaquine, and the standard four-​drug regimen for drug-​susceptible TB. This information can help evaluate global efforts to alleviate these diseases and consider what new policies to implement. Given the great amount spent on HIV/​AIDS compared to malaria and TB, for example, one might worry that medicines are not having a sufficiently large impact on the former disease. Consider the need versus impact graphs for HIV/​AIDS (Figures C.1 and C.2). Globally, the original model suggests medicines have failed spectacularly to address the HIV epidemic. Focusing on places where medicines do not have an impact, one might ask, What went wrong? What can we do differently?

Figure C.1  Estimated Global Disease Burden Absent Treatment (in Disability-​ Adjusted Life Years) for HIV/​AIDS

Conclusion  189

Figure C.2  Estimated Global Disease Burden Averted by Treatment (in Disability-​Adjusted Life Years) for HIV/​AIDS

Consider HIV/​AIDS drug impact scores (Figure C.3). Global Drug Impact Scores Lamivudine (3TC) Tenofovir (TDF) Efavirenz (EFV) Nevirapine (NVP) Zidovudine (AZT) Emtricitabine (FTC) Lopinavir/Ritonavir (LPV/r) Abacavir (ABC)

Figure C.3  HIV/​AIDS Drug Impact Scores

190 Conclusion It seems likely that some (e.g., zidovudine-​based) regimens had a large impact in 2010 only because they were cheap, while others (e.g., tenofovir-​ based regimens) were used more frequently in 2015 as prices fell—​as they are more effective alternatives with fewer side effects. The model suggests that there are also many other barriers to access and that people need much more effective drugs to combat HIV/​AIDS. Because the Global Health Impact index contains country-​level data, it also provides some information about medicines’ consequences in each country in the world. Information about medicines’ global health consequences provides an important human rights indicator like a Human Development Index for health that may help track progress in fulfilling the Sustainable Development Goals. Consider some other results from the original model. In 2015, India was the highest-​ranked country for aggregate burden alleviated. There was a lot of TB in India, and it received highly effective treatment. There was also some successfully treated HIV/​AIDS and malaria. Nigeria, another highly ranked country, had more success in alleviating malaria’s burden, but there was a much less severe TB burden to alleviate (Figure C.4). Medicines also had a large impact in some countries in Africa and Asia, partly because the need for the drugs was high. However, in some places where there was great need, drugs had little impact (Figure C.5). The website

Country and Overall Impact by Rank India Nigeria Uganda Indonesia Democratic Republic Pakistan Ethiopia China Mozambique South Africa 0.00

5,000,000.00 TB

Malaria

10,000,000.00 HIV

15,000,000.00

NTDs

Figure C.4  Top 10 Highest-​Impact Countries Graph (Total Disability-​Adjusted Life Years Averted)

Conclusion  191

Figure C.5  Country Impact Scores

lets users view the impact scores’ components at the country, regional, and global levels separately (global-​health-​impact.org/​new). Drugs in the model alleviated about 27% of estimated morbidity and mortality due to the diseases we examine, while about 73% remained. There was less need for drugs for TB than malaria and HIV/​AIDS medicines. Treatment coverage was highest for TB, onchocerciasis, and worms, followed by drugs for HIV/​AIDS and other NTDs, while treatment coverage for malaria was lowest. That said, treatment coverage for malaria was constant across drug regimens, and almost all drugs had similar efficacy. The greatest need for malaria treatment was in sub-​Saharan Africa and parts of Asia. Medicines primarily had a large impact on malaria in a few places in sub-​Saharan Africa. Treatment coverage for all diseases required significant expansion. TB drug effectiveness and coverage varied with resistance rates. The TB burden was widespread. Some countries in Africa and Asia had the greatest need for TB drugs. There was an HIV/​AIDS crisis in the former Soviet Union as well as sub-​Saharan Africa and parts of Asia. Drugs only had a large impact on HIV/​AIDS in a few countries (most notably in sub-​Saharan Africa and Asia). Treatment coverage varied significantly by region, and efficacy also varied significantly between regimens.

192 Conclusion People can use information about medicines’ global health consequences to improve global health in many ways. Researchers can use the data in cross-​ country regressions to figure out what effect having a larger or smaller impact on these diseases has on everything from international development to conflict. They can also consider impact’s determinants—​that is, what contributes most to medicines’ health impact at the country level? Plausible answers include better country-​level health systems, more international aid, and changing disease transmission rates, among other things; but researchers can use the index to answer this question. International organizations and country-​ level ministries of health can use health impact data to evaluate performance, set targets, and guide health resource distribution. In short, better understanding key medicines’ global health consequences helps policymakers better treat and prevent some of the world’s worst diseases. Although data alone do not solve the health problems people face, they can help people secure essential medicines around the world.

APPENDIX

The Human Right to Health’s Demands and Public Goods This appendix responds to worries about the human right to health’s demands: both that the right demands too much and too little.1 In responding to these worries, I do not attempt to address skeptics about all social and economic rights.2 Some believe, for instance, that no one has to sacrifice their freedom for others. I have argued at length elsewhere that many social and economic rights exist precisely because no one should have to give up their freedom for others (Hassoun, 2012b, 2015a). Here, however, I just state my view. Individuals’ ability to live a minimally good life and, for instance, avoid terrible death and disability from lack of access to essential medicines trumps concern for the freedom to do whatever one might like (Hassoun, 2014a). At least, when these medicines are easy enough to provide, we should ensure people can secure them. Moreover, although some worry about the distribution of duties correlative to social and economic rights, I believe there are many well-​established ways of replying to these worries and do not engage with them here.3 Consider the worry that the human right to health demands too much. Although the human right to health should not generate impossible commitments or set standards that are too difficult to meet, demandingness does not always undercut rights claims. Non-​ interference often demands a lot. One’s very survival may require one to violate rights. One might maintain, however, that people may not always violate others’ rights even in such dire circumstances. They cannot violate others’ rights (e.g., when they are just as vulnerable and innocent). New refugees to a malarial region may desperately need medicine to survive, but some refugees may have to refrain from taking medicines from others when they are scarce. People should sometimes fulfill demanding duties.4 Again, few would object to limiting the human right to health’s demands in some ways. The human right to health should not demand so much that we would do better not to fulfill it. Moreover, we can grant, for the sake of argument, that it must be (logically or nomologically) possible to do what we should.5 Moreover, we should pay attention to the probability of morally relevant costs and benefits in deciding how we should fulfill rights in practice (Brennan, 2013). We should also consider other moral rights and important goals (Raz, 2015, 230). Still, critics must provide an argument to say obligations are too demanding, or infeasible, on any particular theory. There are many ways to understand what it means for an outcome to require too much. Some object to theories that require people to do what produces the best results, run contrary to agents’ inclinations and desires, conflict with self-​interest, or leave little room for agents’ personal concerns (Arneson, 2004). Others claim that the probability of a feasible outcome must exceed some threshold (Gilabert and Lawford-​Smith, 2012; Brennan, 2013; Gilabert, 2017).6 So, we not only require an account of what makes rights too demanding or infeasible but need to know why that kind of demandingness or infeasibility undercuts the theory (Brennan, 2013).

194 Appendix After all, some kinds of demandingness in a moral theory are a virtue (Goodin, 1995). Theories can demand too little as well as too much. So, we should not endorse a meta-​ ethical principle limiting the demands of first-​order morality (Goodin, 1995). We should consider whether or not particular demanding first-​order moral principles are wrong.7 Pablo Gilabert provides the best argument for considering feasibility concerns for social and economic human rights, in particular—​though, I think it fails. Gilabert (2017) suggests a dynamic conception of feasibility that requires a probability of success above some threshold and acknowledges different kinds of constraints for different agents in different circumstances. He says that if we understand social and economic human rights (including the right to health) too broadly, that “weaken[s]‌the urgency of human rights talk,” while an overly narrow conception “capitulates in the face of grievous injustices” (Gilabert, 2009, 676). He says feasibility as well as the importance of rights’ grounds can help us steer a middle path. However, I do not think we need to worry about undermining the urgency of rights talk when their grounds (e.g., individuals’ ability to live minimally good lives) are so incredibly important.8 We do better to “weaken the urgency of human rights talk” than to reject rights’ claims (Gilabert, 2009, 676). If necessary, we can just refrain from asserting them (Cohen, 2008). Recall that some argue that the human right to health, in particular, requires vast resources to fulfill. Some suggest healthcare is a bottomless pit. Again, as Charles Fried put it, The fact is that if we were to recognize a right to the satisfaction of our most unfortunate fellow citizens’ medical needs, the drain on resources available to satisfy other kind of needs (education, defense, housing) and also to satisfy all the residual wants of healthy, secure, educated persons would be staggering. Indeed there is literally no end to the drain on resources that medicine might represent if we consider the various ways of prolonging life and restoring function which might be developed should we choose. (Fried, 1978) The costs of medical care are high and the possibilities for improvement endless, but we should not neglect other things that matter (Fried, 1978; Daniels, 2008). This worry contains some truth, but we need to know why we must constrain the human right to health in any particular instance.9 Sometimes protecting rights may create disaster.10 If we save the lives of some, many others may die. If we help some people live healthy lives, we cannot help others secure basic education. We may have to limit the protection human rights afford to defense against standard threats to safeguard others’ interests or rights (Shue, 1995; Nickel, 2007).11 Still, making the case for limiting rights in any particular context (never mind every context), requires some argument.12 Because it is important that individuals are able to live minimally good lives, others should normally provide the requisite assistance.13 Again, we may have to do new research and development on drugs for neglected diseases to ensure that the less fortunate can live minimally good lives (Gheaus, 2013). One must demonstrate that something even more important is at stake or provide other (deontological) reasons for failing to fulfill the claims that rights generate.14 Chapter 2 rejects the best argument to this effect in the philosophical literature. However, we can limit demandingness whenever we have reason to limit it, and this book’s argument goes through even if we limit human rights’ demands significantly.15 People may, for example, only have rights to basic healthcare for some limited period of time (i.e., a normal life span). Medicines for diseases like malaria, tuberculosis, and HIV/​

Appendix  195 AIDS presumably qualify as standard protections of individuals’ ability to live minimally good lives on any reasonable account. In his article “Human Right to Health? Some Inconclusive Skepticism,” Gopal Sreenivasan (2012a) worries, however, that the human right to health cannot demand enough in some respects (though he thinks it demands too much in others).16 He argues against the moral right to health, but even if I have not succeeded in establishing a moral right in defending the legal right to health, one can make an analogous argument against the legal right. Sreenivasan distinguishes personal healthcare from the provision of public health (a public good). He says that states, plausibly, have to protect public health (e.g., by vaccinating for herd immunity). If this book’s arguments are correct, protecting public health may even require making some medicines public goods by eliminating patents on them. However, Sreenivasan says, human rights cannot ground these obligations. To sharpen his argument, he also supposes that many measures to protect public health should be compulsory on individuals. Sreenivasan argues that no one has claim rights to such public goods. Consider how Sreenivasan makes the case that the right to health cannot require the provision of public goods. He considers what those who accept the two main classes of traditional theories of human rights in the literature can say about public goods. On will theories, human rights protect individuals’ autonomy. Rights preserve for individuals a realm over which they can exercise some control. On interest theories, rights protect individuals’ important interests. Moreover, on many such theories, these interests must be, in some sense, sufficient to ground the rights. We should consider both strands of Sreenivasan’s argument here. One might suppose this book’s minimally good life account of the human right to health is an interest theory. Recall, however, that things like autonomy and liberty are often necessary for such lives and, at least, can contribute to them. Moreover, that is not only because we have an interest in these things.17 At least, one can accept all of these arguments and maintain that we must exercise the control over rights that will theorists endorse. So consider Sreenivasan’s argument against will and interest theories in turn. There are two problems with Sreenivasan’s argument against will theories of the human right to health requiring the demanding of provision of collective goods. On will theories, he says, a claim right must be waivable, but we cannot waive a right to herd immunity since others still have it. As Sreenivasan notes, however, one need not be able to waive all rights on all will theories. On some, people only need to exercise other kinds of control over rights (Wenar, 2005). Moreover, one can waive one’s claim to what a right guarantees even if others still have a right to it. Suppose a mother and a daughter each enter into a (separate) contract with an insurance company to provide the daughter with healthcare (the mother might not know the daughter has already acquired coverage). The mother might waive her claim to the insurance policy she has taken out for her daughter. Yet, the insurance company must still provide care to the daughter as she has retained her own policy. Even if one waives one’s right to a benefit, another’s right to the benefit may protect it. In the case of public health, consider an even more apt analogy. Suppose you and I both care deeply about how some third party fares (e.g., our child). Suppose we each take out a health insurance policy to protect her. As long as the insurance company covers our child, we both benefit; we are happy our child has coverage. Even if I waive my policy, if you do not waive yours, and our child has coverage, I benefit.18 These points hold even if our child finds the insurance burdensome and we benefit more directly from the coverage—​say, our child prefers to live a riskier life, and we get sick less often when our child has health

196 Appendix coverage.19 We can waive rights even if the protection they afford is available for other reasons.20 Next, consider how Sreenivasan argues against the idea that rights can require the provision of public goods on interest theories. Joseph Raz defends the most famous interest theory and, on his account, there are two applicable tests [for whether something qualifies as a duty correlative to a right], Raz’s general test and a special test he devised precisely for the case of public goods (Raz, 1994). According to Raz’s general test, the Swiss state’s moral duty to provide herd immunity against diphtheria is owed to some individual citizen just in case an aspect of her well-​being is sufficient, other things being equal, to justify the state’s duty. (Sreenivasan, 2012a, 257) However, Sreenivasan says, no one’s interest can ground the duties correlative to the human right to health (especially if they include an enforceable obligation to be vaccinated). On the special test, “third-​party interests can be counted alongside the individual’s interest, for the purposes of satisfying his general test, as long as the following special condition is met—​the third-​party interests are served precisely by serving the individual’s own interest” (Sreenivasan, 2012a, 257). Raz intends this test to limit the demands a human right can place on others. Consider the case of a journalist’s right to free speech. The journalist may have this right only because, in addition to protecting their interest in free speech, the right promotes other people’s interests in acquiring essential information. Sreenivasan says, however, that an individual’s interest in vaccinations plainly fails to satisfy [this test]. In this case, the individual’s interest and the third-​ party interests (everyone else’s interest in not contracting diphtheria) are each served by some common cause (herd immunity against diphtheria), rather than the third-​party interests being served by serving the individual’s interest. (Sreenivasan, 2012a, 258) Sreenivasan concludes that, on interest theories, rights claims cannot ground protections of public health. There are several reasons to reject the conclusion that rights claims cannot ground protections of public health. First, this appendix provides some reason to question the claim that, on the minimally good life account, individual interests are sufficient to ground rights to protections of individuals’ ability to live a minimally good life. Many things are necessary for, and central to, such lives besides individual interests. Suppose, for the sake of argument, however, that individuals’ interests are sufficient to ground rights to protections of individuals’ ability to live a minimally good life. If so, a proponent of the account might endorse Raz’s tests. Still, there are several reasons to reject Sreenivasan’s argument. Note, first, that vaccinating one person in a population promotes third-​party interests because it reduces the statistical chance of infection. Moreover, there are two other reasons we should reject Raz’s tests. If we accept them, we cannot account for many of the things on the common lists of human rights (beyond the right to health) (Hassoun, 2014d). To fulfill the duties human rights generate, we must often provide collective goods. Consider the right to education. States generally guarantee their citizens’ right to education by providing public schools. One can reasonably maintain that they must do so to protect everyone’s human rights (Labree, 2000; Powers, 2015). If we endorse Raz’s tests, people also lack other rights (e.g., to free movement or even life). We need adequate police forces, a decent legal system, and

Appendix  197 a culture of respect to protect these rights (Hassoun, 2014d, 101). Raz believes it is too demanding to provide collective goods, but we can limit rights’ demands in other ways.21 Perhaps rights are justified, in part, by the public good or many individuals’ interests (Wong, 2001). Again, consider that the right to education is valuable not only because of the good it does for individuals; education promotes economic development and, plausibly, democratic discourse. So, perhaps people have a right to at least universal primary education, in part, because it promotes the non-​contingently non-​excludable public good of living in a democratic society. Alternately, many individuals’ interests—​the collective good—​may justify the right to such education, though, of course, both the public and collective good affect individuals’ ability to live minimally good lives. These arguments are not available to justify rights if we must limit their justification to “the claims of individuals as such” (Sreenivasan, 2012a, 259). Still, I see no reason to think we must justify rights in this way.22 Recall the analogy with insurance contracts. I can have a right to insurance because my parents have purchased it. I might also have a right to insurance because otherwise I imperil public health or even some other aspect of the collective good (e.g., if, otherwise, it costs too much to provide everyone with healthcare). Rights’ grounds and beneficiaries are often different. The actual demands of participating in public health campaigns are not that great relative to the benefits secured. We regularly require vaccination before enrolling children in school. We can grant exceptions to individuals who bear unusually large burdens. And, again, we can plausibly limit the demands rights generate in other ways (Waldron, 1993). If the public, or collective, good can ever support the right to health, it plausibly requires investing in research and development for new drugs and technologies to address at least the worst threats to health. Individuals’ interests in avoiding threats to their ability to live minimally good lives that we cannot yet remedy also generate these rights. Moreover, if the public, or collective, good supports the right to health, concern for individuals’ ability to live minimally good lives may incorporate concern for the community (Wong, 2001). Whether policy makers can ever justify public health interventions that do not protect individuals’ ability to live minimally good lives depends on exactly how the contours of the right are worked out in practice (Chapter  2 provides some suggestions). I do not take these arguments to establish decisively that concern for the public, or collective, good can ground individual rights; but the proposal has the advantage of not doing away with the idea that individuals have rights to public goods. We can say, for instance, that individuals have rights to vaccinations because they protect herd immunity. One cannot simply assert that rights are only justifiable by the interests or autonomy of individuals; that assertion requires defense.23 If this proposal works, however, we should endorse the way that international human rights law has begun to institutionalize the provision of public goods necessary for individuals’ human right to health. In interpreting Article 12 of the Universal Declaration on Human Rights’ claim that everyone has a right to the “enjoyment of the highest attainable standard of physical and mental health” (United Nations, 1948) the Committee on Economic, Social, and Cultural Rights says this: the human right to health is “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-​related education and information” (United Nations Office of the High Commissioner for Human Rights, 2000, 3). We need to do

198 Appendix much more to protect human rights in practice (Frick, 2015). We may need to rethink many aspects of human rights theory. Still, we should embrace the way international law has started to institutionalize duties to provide the public goods necessary to protect the human right to health (Gable and Meier, 2013). To sum up, this appendix considered the demands the human right to health generates. It suggested that the right can demand the provision of public goods. The public, or collective, good may even help ground the human right to health. It claimed that the demands the right generates are justified, in part, because they protect individuals’ ability to live minimally good lives. We can limit the right if its demands are excessive—​if, for instance, it demands so much that we lose something more morally significant in the process. Still, we need an argument for limiting the human right to health’s demands. Because so many people suffer and die young from lack of access to essential medicines and other health protections, establishing that they have a right to these things is incredibly important. Understanding why people have a right to health may help guide efforts and shape policies to fulfill their claims.

Notes Part I 1. Portions of this chapter were adapted with permission from N. Hassoun, “Individual Responsibility for Promoting Global Health:  The Case for a New Kind of Socially Conscious Consumption,” Journal of Law, Medicine & Ethics 44, no. 2 (2016b): 319–​ 31, doi: 10.1177/​1073110516654125; N. Hassoun, “Consumption and Social Change,” Economics and Philosophy 35, no. 1 (2019): 29–​47, doi: 10.1017/​S026626711800007X; and N.  Hassoun, “Globalization, Global Justice, and Global Health Impact,” Public Affairs Quarterly 28, no. 3 (2014): 231–​58. Retrieved from http://​www.jstor.org/​stable/​ 43574660. 2. See the introduction to Part 2 and Chapter 3 for discussion as well as Institute for Health Metrics and Evaluation (2016a, 2016b, 2017) and Zhang et al. (2010). 3. For criticism, see Brooks (2016) and Brock (2014). Thom Brooks suggests, for instance, that a welfare-​or capabilities-​based approach to grounding obligations to provide everyone with access to essential medicines supports changing regulatory systems rather than market-​based initiatives for change. Clearly, many factors influence access to essential medicines besides pharmaceutical companies’ policies. I agree that the primary obligation to address the access problem does not fall on companies, never mind individuals. However, given that states and other institutions do not ensure that everyone can access essential medicines, I argue that companies, and even individual consumers, should embrace market-​based initiatives for positive change as well. For other criticism and some replies, see Sonderholm (2011), Hassoun (2014a, 2014e, 2014f), and Brock (2014). Notably, however, I attempt to ground obligations to support the Global Health Impact project here in concern for individuals’ ability to live minimally good lives. Elsewhere I have argued that even those concerned that people can secure minimal autonomy should support it (Hassoun, 2012b). I concur with Brooks, however, that a broader and deeper grounding is preferable. Chapter 1 discusses the advantages and disadvantages of different ways of trying to ground the human right to health that I rely on here to support the project. Chapter 5 discusses market-​based efforts to promote positive change. 4. Tasioulas and Vayena (2016) suggest that the right to health does not include most social determinants to keep the list of rights short and distinct, and they worry that rights to more social determinants will make tracking the right’s fulfillment too difficult. I think this is too limiting. International law articulates minimal core obligations and provides further guidance for fulfilling the right. Moreover, obligation bearers might focus on what people need in their context to figure out how best to fulfill the right. See the first two chapters for discussion.

200 Notes 5. In early work, Pogge said that the “cost of the plan might peak at around US$45–​90 billion. With all the world’s countries participating, US$45 billion amounts to 0.1% and US$90 billion to 0.2% of the global product” (Pogge, 2007, 18). In a more recent version of the proposal, the estimate was US$6 billion (Hollis and Pogge, 2008).

Chapter 1 1. Portions of this chapter were adapted with permission from N. Hassoun, “Human Rights and the Minimally Good Life,” Res Philosophica 90, no. 3 (2013a): 413–​38, doi:  10.11612/​resphil.2013.90.3.6, and N.  Hassoun, “The Evolution of Wealth and Mutual Concern:  Democracy or Revolution?,” in Wealth:  NOMOS LVIII, ed. Jack Knight and Melissa Schwartzberg (New York: New York University Press, 2017a). 2. I did not come up with the idea that the minimally good life helps ground the human right to health (Nickel, 2005, 2007; Buchanan, 2009, 2014; Brownlee, 2013; Brock, 2005; Schaber, 2014). Yet, advocates require a well-​worked-​out philosophical account of this life to substantiate the idea, and few have sketched such an account. For exceptions, see Hassoun (2013a), Liao (2015), Schaber (2014), Brock (2005). Some suggest that the legal right is only justified if properly implemented, but then I take the chapter to establish that the international community should so implement the right (Reidy, 2016). 3. See, for instance, Griffin (2008) and Daniels (2008). 4. It is clear, however, that the United Nations’ apex human rights body is committed to the idea that corporations have some human rights responsibilities. The secretary-​general elected a Special Representative on the issue of Human Rights and Transnational Corporations and Other Business Enterprises to clarify corporations’ legal human rights obligations. The special representative concluded that although the international human rights system should integrate corporations further, the process of integration is well under way (Ruggie, 2006). Moreover, see the discussion later in this chapter. In any case, this book assumes that corporations can bear such obligations. 5. That is, I argue that even some who are not citizens of states signing onto international human rights treaties should have these legal protections. 6. I do not have novel suggestions for ensuring that states properly protect the right. Few states live up to their commitments to provide official development assistance, and this assistance is often conditional and tied to specific uses. It is hard to see this changing significantly in the short term. Rather, I focus in subsequent chapters on some things companies and individuals can do in the meantime given that everyone has a justifiable legal right to health. 7. The ICESCR was ratified by 165 state parties and has five signatories (including the United States). 8. The CESCR further specifies that “the realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the WHO, or the adoption of specific legal instruments. Moreover, the right to health includes

Notes  201 certain components which are legally enforceable” (United Nations Office of the High Commissioner for Human Rights, 2000, paragraph 1). 9. In practice, the Sustainable Development Goals and the UN High-​Panel on Access to Essential Medicines report (along with other international efforts) may help set health priorities—​see the discussion in the introduction to this book’s second part. 10. The General Comment also provides detailed standards for securing the right to health. States must “(1) adopt framework legislation setting out a national strategy and plan of action, and earmark . . . sufficient resources to carry the plan out; (2) identify appropriate right to health indicators and benchmarks; and (3)  establish adequate remedies and accountability—​access to courts, ombudsmen, or human rights commissions, for example” (Gostin, 2001, 30). They must give priority to providing immunizations, health information, infectious disease control, and maternal and reproductive healthcare. 11. See Hollis and Pogge (2008, Ch. 6). 12. It is illuminating to consider how some propose using human rights–​ based frameworks to address particular diseases. See, for instance, Citro et al. (2016). Many states also incorporate, and further explicate, the duties correlative to the human right to health in their laws and constitutions; but what follows considers how international law does so. 13. The guidelines attempt to provide practical guidance for pharmaceutical companies and not resolve the debate about whether companies are legally bound to abide by human rights standards, but they do purport to “set out the human rights responsibilities of pharmaceutical companies” (Hunt, 2008a, 2). Moreover, I assume here and throughout that companies should be so bound and defend the human right to health understood in this way. 14. Article 2 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms says, “Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms” (United Nations, 1999, 3). However, Article 18 states, “Individuals, groups, institutions and non-​governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized” (United Nations, 1999, 7). 15. Some defend much less robust rights to health that “give people excellent chances of surviving childhood and childbirth, achieving physical and mental competence and living a normal lifespan” (Nickel, 2005, 388). 16. Other things can also significantly affect individuals’ health, including their access to sufficient education, decent work, and supportive social connections. Tasioulas and Vayena (2016) object that this inclusive notion of a right to health is too radical because it includes everything that can affect health. I think, however, that the right should allow people to object to inadequate provision of things like clean water, education, and social conditions when they undermine individuals’ ability to secure and retain a basic minimum of health. There are statistical methods available for parsing

202 Notes out different conditions’ contributions to health deficits. Moreover, as new obstacles to securing health arise, the right requires trying to overcome them even if these protections do not amount to healthcare. 17. Some question the idea that primary responsibility should still lie with states given the increasing prominence of other actors (e.g., corporations) in international affairs (Reidy, 2016; Pogge, 2002b; Hassoun, 2012b). I  actually believe that the best explanation for the current division of responsibility supports this concern (see the discussion in Chapter 4). Making that case, however, would only strengthen subsequent chapters’ argument. So, I rely only on the standard account of how to distribute responsibility here. 18. This may provide reason to modify other international laws, or institutions, to protect the right better (United Nations, 2010). States need better enforcement mechanisms and health systems to secure everyone’s human right to health. There is also reason to consider new proposals for extending access to essential medicines more broadly (see Nickel, 2007; Hassoun, 2013b). 19. Again, some people suffering from serious health problems live minimally good lives, but these problems pose significant threats to their ability to do so. 20. The human right to health, never mind morality more generally, may require more than this (Casal, 2007). 21. I discuss later in this chapter the ways in which this differs from the account in Liao (2015). 22. It matters how one experiences and evaluates one’s life over time as well as at each time. 23. The flourishing at issue here goes beyond what is good for a person and what someone who cares about another would choose for that person. People can live flourishing lives and sacrifice some interests despite the fact that those who care about them would not choose this for them. Nor does the life fully self-​interested people would choose under a veil of ignorance capture this flourishing. People’s choices for themselves or others may not suffice to guarantee minimally good lives depending on background conditions (e.g., resource scarcity). Some choice-​worthy lives involve too much sacrifice to count as minimally good. Rather, consider what sacrifice a caring person would require in setting as a minimal standard of justifiable aspiration if the lives that contained it were the only available choices for others with whom they empathize (Darwall, 2002; Parfit, 1997). 24. Although I  do not pursue this inquiry here, one might also see accounts of welfare (e.g., informed desire or rational care accounts) as attempting to explain these facts, and the differences between the accounts may matter only at the margins (Darwall, 2002). 25. See Scanlon (1975). However, I do not believe consensus in a society determines the latter. 26. If one doubts this, it may help to consider potential examples. Stephen Hawking, for instance, has severe physical disabilities, yet few would deny that he has lived a minimally good life in an important sense.

Notes  203 27. I will not consider here what people need to live a minimally good life in the reasonable affirmation sense, but one might do so by considering how people fare given what it is possible for them to secure rather than what reasonable and caring people would need to be content in their shoes. 28. Some maintain that even slaves can live minimally good lives in some sense (Buchanan, 2014). These people may recognize that many slaves do not live the kind of minimally good lives human rights should protect precisely because they lack freedom. However, they may insist that those who struggle valiantly against their chains and manage to flourish despite their adversity live minimally good lives in the reasonable affirmation sense. Similarly, people with severe cognitive impairments, for example, can live minimally good lives in the reasonable affirmation sense even if they do not engage in most of the activities those with less severe impairments find meaningful (Kittay, 2005). If one denies this, then one may only endorse the justified aspiration sense of the minimally good life, and that does not pose a problem for this chapter’s argument. 29. Moreover, plausibly, everyone can justifiably aspire to live a distinctively human life. Thus, researchers might employ a perfectionist approach to filling in the account understood as an epistemic mechanism for identifying some things to which people can justifiably aspire. A perfectionist approach assumes that researchers can figure out at least some important things about what makes a life minimally good by considering what develops human nature (Arneson, 1999, 120). Perfectionist theories employ a two-​stage process. First, they consider what animals as well as humans, if not all living things, need to live minimally good lives. Next, they consider what a minimally good human life requires by considering “the peculiarities of the human situation” (Kraut, 1994, 48), though researchers must consider distinctively human existence’s value to figure out what things people need for a distinctively valuable human existence (Dorsey, 2010). I believe minimally good lives must guarantee for people what they need for a distinctly human (and valuable) existence that does not consist only in securing pure hedonistic pleasure or human excellence but basic human goods. Elsewhere, I have started to develop a perfectionist account of the minimally good life and provided some reason to endorse the idea that human rights must protect individuals’ ability to live minimally good lives. I argued that autonomy characterizes minimally good lives, though such lives require much more than this. Moreover, I suggested that people need whatever enables them to live minimally good lives. So grounding human rights at least, in part, in the minimally good life avoids a dilemma that plagues many tradition foundationalist theories. A theory on which people have human rights to whatever protects their ability to live a minimally good life can account for the close connection between autonomy and human rights without denying that all people have a human right to meet their basic needs. Traditional will and interest theories have a hard time fulfilling this desideratum. On interest theories, human rights protect individuals’ important interests (Raz, 1986). Such theories can account for the fact that human rights protect individuals from dire need. Even the non-​autonomous have some needs that constitute, or protect, some important

204 Notes interests. Unfortunately, many interest theories fail to capture the close relationship between human rights and autonomy (Hassoun, 2011). As Andrew Fagan (2006) suggests, interest theories tend to neglect autonomy’s role in grounding human rights; they neglect human rights’ role in protecting human agency. On many interest theories, autonomy is not necessary for, or constitutive of, the interests human rights protect (e.g., see Raz, 1986; Hassoun, 2011). Will theories avoid this problem. On will theories, human rights protect individuals’ autonomy (see, for instance, Griffin, 2006, 2008). Unfortunately, will theories cannot explain human rights’ universality since some people lack autonomy. Some lack even the potential for autonomy. On these theories, the non-​autonomous, including the very young and severely disabled, lack human rights (Griffin, 2006, 2008). Furthermore, if human rights only protect individuals’ autonomy, duty bearers can fulfill human rights and yet leave some people in dire need; people need more than just autonomy (Griffin, 2006, 2008; Hassoun, 2012c). The most common attempts to justify human rights either do not connect human rights and autonomy appropriately or do not account for everyone’s human rights to meet their needs (Hassoun, 2011, 2012c, 2014c). Researchers can account for the close connection between human rights, needs, and autonomy if, whatever else human rights do for people, human rights protect individuals’ ability to live a minimally good life and this requires that people both secure autonomy and can meet their basic needs. 30. It is possible to use a standard life table to establish normal life expectancy. The right requires helping people live at least minimally well for the time they expect to live at all ages. This is so even though those who are 20 generally live longer than those who are 80. Even a 119-​year-​old can expect to live for some months (Social Security Administration, 2015). 31. Of course, not everyone will agree; but the reasonable person who is appropriately impartial and empathic should. For some work on reasonableness, see Rawls (1971), which specifies that reasonable people are committed to seeing others as free and equal. Rawls also suggests that reasonable people would not subject others to rules they would not consent to live under. But a better test may be whether one would be content to live as others do under the conditions one specifies as appropriate if one fully understood others’ current circumstances, psychology, and history. The question is not whether the person one is deciding for might consent to live a particular life in her or his condition. That person’s preferences may be adaptive and his or her bargaining position poor. Each part of this test requires comment and clarification, but the basic idea is simple: people should be content to bear the costs of living the “merely” minimally good lives others will live when setting this standard. People are content when they do not feel the need to change their situation when doing so is possible even at relatively low cost. At least, this is one test for appropriate empathy. For more on why people must also care for others to figure out what they need, see Nussbaum (2006). Rawls is probably right, however, to say that reasonable people should not allow envy to affect their judgment. I also believe that the reasonable person will be sensitive to the costs others must bear of providing the standard they set (which is why reasonable people will be content with a minimally good life

Notes  205 as opposed to demanding an excellent one). For further discussion and defense, see Hassoun (2018b). 32. Significant work on exactly how to understand this idea remains; some functionings only contribute to flourishing in others’ presence, for example. Still, on any plausible way to make sense of this idea, duty bearers must help some people naturally unable to live minimally good lives secure the care from which they can benefit. 33. That said, here I only try to provide sufficient conditions for justifying the right to health; I do not try to rule out the possibility that individuals’ ability to live even very good lives may justify a yet more expansive right. 34. I argue at length that some of these things are necessary and/​or important for minimally good lives in (Hassoun, 2013a). 35. Sometimes people disagree about whether something counts as a health problem. Some cultures (and subcultures) see blindness, deafness, and epilepsy as neutral, or even beneficial, health states. Moreover, on all accounts, some diseases only undermine some things on the common lists of what people need for a minimally good life. Duty bearers need to know exactly what people need to live such lives to know whether the human right to health requires them to address these diseases. Still, people need some basic minimum of health for a minimally good life on all plausible ways to fill in accounts of health and the proposed way to think about what makes lives minimally good. So the human right to health protects at least this much. 36. Some define basic health needs in terms of the biological functionings or basic capacities necessary to live a minimally good life (Liao, 2017). On this account, it is analytic that the human right to health protects these basic health needs. Moreover, the proposed account has some advantages over the main accounts of health in the literature. On Christopher Boorse’s (1975) account, health is the absence of disease which impairs normal functioning necessary for reproduction or survival. On the WHO’s definition, health is “a state of complete physical, mental, and social well-​being, and not merely the absence of disease or infirmity” (World Health Organization, 1946). Both accounts are too broad. Homosexuality may impair reproduction, but it is not a health problem. Similarly, lacking one’s dream job may impair well-​being, but it is not a health deficit. The proposed account of basic health needs avoids these problems. Homosexuals can have the functionings that they need to live minimally good lives, and one need not have one’s dream job to live such a life. However, the proposed account still has problems. If one lacks the functionings necessary for securing a good job or fulfilling relationship, that can impair one’s ability to live a minimally good life even if the functioning deficit is not due to poor health. Health and flourishing are different. Here, however, I try to stay ecumenical between competing accounts. 37. To understand why the right requires treatment for smaller maladies, recall that the right protects individuals’ ability to live minimally good lives at all times. Moreover, it is likely that the right should protect against significant risks that may undermine this ability. I set these issues aside here, however, as I do not need to resolve them for this book’s purposes. 38. I leave further specification for another time but note that this definition differs from that embodied in the WHO’s essential medicines list. The WHO takes into account

206 Notes medicines’ cost as well as the need for them (though some high-​cost medicines are included). Taking into account the fact that some medicines cost a lot in developing countries may help with health system planning. However, even if high cost leads to low cost-​effectiveness, that does not mean drugs are less essential. In any case, medicines for diseases like malaria, TB, and HIV/​AIDS clearly count as essential on this book’s account. Moreover, on this account, people should have WHO-​listed essential medicines (as well as many others). See the discussion that follows on such rights’ demands. 39. I suppose that people need secure access. People cannot only have a formal right to access; they need the substantive ability to access these medicines without sacrificing any other rights, etc.—​though even if the subsequent section’s arguments go through, knowing that people have a right to health and essential medicines does not tell duty bearers exactly what people need to fulfill their rights. Specifying exactly what individuals’ rights to access essential medicines demands requires, for instance, knowing if states can ever act paternalistically. For cultural or moral reasons, some object to vaccines against even the world’s deadliest diseases. Although I think states should sometimes act paternalistically, anti-​paternalists can accept all that follows. Similarly, when duty bearers can secure people’s human rights to health in many ways, they need other principles to decide how to do so. If they can either invest in preventative healthcare or provide essential medicines once people become sick, they should do the former. However, it is not always obvious how to protect individuals’ human rights to health best. Still, the legal human right to health helps protect individuals’ ability to live minimally good lives. See Chapter  2 and the Appendix for further discussion. 40. I do not attempt to address skeptics about all positive rights in this chapter (though see the Appendix and Chapter 4 for some relevant discussion). These people often think no one must sacrifice her or his freedom for others. I argue at length elsewhere that it is precisely because no one should have to give up her or his freedom for others that such obligations exist (Hassoun, 2012b). Here, however, I  just state my view. Individuals’ ability to live a minimally good life and, for instance, avoid terrible death and disability because of a lack access to essential medicines trumps concern for the freedom to do whatever one might like (Hassoun, 2012b). At least, when it is easy enough to provide these medicines, individuals’ human rights to health should ensure that people can secure them. Moreover, if one only endorses a right to access essential medicines, that will suffice for subsequent chapters’ arguments. 41. See Raz (2015, 230) and Brennan (2013). 42. Perhaps one can argue, for instance, that people need not contribute more than their fair share to fulfilling rights’ claims. However, one must offer significant argument to make the case that this means duty bearers should let someone suffer or die whom they might help. 43. See Gheaus (2013). 44. There are, however, many other worries about distributing duties correlative to positive rights that this book does not address—​primarily because I believe good replies exist in the literature (O’Neil, 2005; Hassoun, 2012b). Contra critics, for instance,

Notes  207 states can often help people secure their positive rights and encourage other states to better protect rights (Sreenivasan, 2012a; O’Neill, 2000; Tasioulas, 2013; Wolff, 2012b). See, however, the Appendix and Chapter 4 for some relevant discussion. 45. To some degree, even capability theories endorse paternalism. Imagine someone who does not care about securing basic capabilities. Without paternalism, I cannot see why duty bearers should enable them to secure these capabilities (Dorsey, 2012). After all, doing so may require taxing these people to provide basic services. A similar point applies to meta-​capability accounts (Venkatapuram, 2011). 46. Depending on how one construes “capabilities,” capability theories can account for this in some cases. Imagine a mother forced to choose between her health and her child’s. She can reasonably choose the latter, and one could say that she can still secure health. Still, no one should have to make such a choice. Capability theorists might argue that this would undermine other valuable capacities to which the mother has a right (Wolff and de-​Shalit, 2007, 80). Even if states, for example, cannot generally act paternalistically, they must also ensure that children actually remain healthy. It is not enough if children can secure adequate healthcare; they must actually have a basic minimum of health (where possible). Capability theorists respond that duty bearers must provide this care because they have to ensure capabilities for the adults these children will become. Some charge, however, that capability theories cannot explain why they must help children who will never make it to adulthood because, say, they have a terminal illness from which they will die young (Liao, 2015). Moreover, Johnathan Wolff and Avner de-​Shalit point to several other qualifications capability theorists must endorse for capabilities to provide a plausible basis for human rights (or other significant obligations), such as that people require secure access to functionings (2007, 72). 47. Nussbaum just denies this by pointing to choice’s importance but fails to respond adequately to Arneson’s claim that more than choice matters. 48. Some believe in only one human right—​to participate in democratic discourse (Forst, 2010). I reject this idea. Even though I think human rights’ duty bearers should preserve people’s capacities for participating in democratic political processes, they should care about their ability to live a minimally good life (and care about it for many other reasons). 49. For a somewhat different, culturally-​sensitive, model of rights, see Menzel (2011). 50. Recall that, on the minimally good life account, people should get as close as they can to the kind of flourishing at issue. 51. For similar criticism, see Tasioulas (2007, 2013). 52. While Daniels’ account is more determinate insofar as he commits to a specific account of the health human rights must protect, this account has several problems that raise issues for his theory. On Christopher Boorse’s account of health (which Daniels adopts), health is roughly the absence of harmful deviations from normal functioning that contributes to survival or reproduction. A hand functions to hold things, and anything that impairs this function is a disease or disability. Boorse is clear that he has a normative way of thinking about functioning that depends on the researcher’s aims but is constrained by the condition that functioning must contribute to survival or

208 Notes reproduction. Once researchers specify the functions and reference groups, however, scientific inquiry can determine whether someone is healthy. However, like homosexuality, some non-​diseased states may impair reproduction. It is also not obvious what exactly constitutes the appropriate norm for comparison. Should researchers compare people to all others or only those of the same sex, age, race, disability status, etc.? 53. I assume that if the right to health is an important tool for protecting everyone’s ability to live a minimally good life, it is justified. At least, I believe the fact that the right is instrumental in protecting something so important provides some reason to endorse it. 54. For some promising objections to other functionalist accounts, see Tasioulas (2013). On the compatibility of the two types of accounts, see Liao (2015).

Chapter 2 1. Portions of this chapter were adapted with permission from N. Hassoun, “The Human Right to Health,” Philosophy Compass 10, no.  4 (2015):  275–​83, and N.  Hassoun, “The Human Right to Healthcare: A Defense,” Journal of Social Philosophy 0, no. 0 (2019): 1–​22. 2. Debates about human rights also bear on debates about global justice more broadly. See, for instance, Shue (1996), Moellendorf (2002), Tan (2004), Caney (2006), Brock (2009), Barry and Southwood (2011), Blake (2013), Hassoun (2012b, 2012c), Etinson (2012), Gilabert (2019). 3. Instrumental value is not always small. Moreover, the argument does not rule out other arguments for the virtue, and I provide a non-​instrumental argument for creative resolve as a moral and intellectual excellence elsewhere (see Hassoun, 2018a). 4. There are different ways of understanding rights’ functions. One may provide a reductive or non-​reductive account. On reductive accounts, functional roles completely define rights without independent grounds. On non-​reductive accounts, these rights may have independent grounds. Although most functionalists want their accounts to help us analyze human rights practice—​critique some aspects of the practice or suggest expanding it in some ways—​they are more or less prescriptive. Different functionalist accounts adhere more or less closely to the actual practice. Some may embrace constructivist accounts, on which researchers should give a normatively laden description of actual human rights practice and then see if they can justify it (James, 2005). But one might give different such accounts depending on what roles one thinks an adequate account of the practice should serve or what features of the practice one believes it most important to capture. Alternately, one might start by trying to account for what rights would ideally do for human rights beneficiaries, advocates, and duty bearers (independent of actual human rights practices). Although I will not attempt to arbitrate between these meta-​political views here, I want to give a non-​reductive and largely prescriptive account of one of the rights’ roles. That is, I also think rights have independent grounds and that there are other important functions they can and should play. Still, I believe my account has the virtue of capturing some core features of the existing human rights practice.

Notes  209 5. Again, there are many worries about positive rights that this book will not address—​ primarily because I believe there are already good replies in the literature. Note, however, that creative resolve may have a role to play in responding to some worries. It may help us isolate the appropriate duty bearers, for instance. For some discussion, see the Appendix as well as O’Neil (2005), Hassoun (2012b, 2013a), Tasioulas (2013), Wolff (2012b), Marinov (2005). 6. I find it slightly odd that Sreenivasan focuses on the moral human right to health’s role in national and international affairs given the legal right’s centrality to human rights practice. 7. Some of the human right to health’s critics use a different definition of rationing. Gopal Sreenivasan says, for instance, that rationing requires that any system must limit the healthcare services it provides to a “subset of medically effective services” (Sreenivasan, 2012b, 147). However, I will suppose that the human right to health’s critics agree that rationing sometimes requires limiting some people’s access to the health-​related services they need to live minimally good lives (which constitutes rationing on my definition). 8. To some degree, what is at issue in the debate about the human right to health is how we should think about rights. Gopal Sreenivasan claims, for instance, that his skeptical arguments are not conclusive “against advocates who are happy to use the language or rights in a looser fashion than the philosophical strictures require” (Sreenivasan, 2012a, 240). Though I do not think the way I propose thinking about the right’s demands is “looser” than Sreenivasan’s (because the right is limited by the constraints of possibility), I do think it is more demanding. 9. Moreover, some advocates of aspirational accounts of rights who endorse progressive realization support rationing and suggest that Article 2(1) requires rationing in the light of resource limits as each state must only try to realize the right to “the maximum of its available resources” (United Nations Office of the High Commissioner for Human Rights, 1966). Some also point out that the general comments specify that “with respect to the right to health, equality of access to healthcare and health services has to be emphasized. . . . Inappropriate health resource allocation can lead to discrimination that may not be overt. For example, investments should not disproportionately favour expensive curative health services which are often accessible only to a small, privileged fraction of the population, rather than primary and preventive healthcare benefiting a far larger part of the population” (United Nations Office of the High Commissioner for Human Rights, 2000). So these advocates of the aspirational account of rights and progressive realization conclude that the right provides reason to ration access to treatment to provide preventative services (Rumbold et al., 2017). However, I do not believe the comments’ authors are trying to establish that states have to make hard decisions within resource limits in the quoted text. Rather, the main point of the relevant comment is that the human right to health requires equity in distribution. The first part of comment 19 is, “With respect to the right to health, equality of access to healthcare and health services has to be emphasized. States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-​care facilities, and to prevent any discrimination on

210 Notes internationally prohibited grounds in the provision of healthcare and health services, especially with respect to the core obligations of the right to health” (United Nations Office of the High Commissioner for Human Rights, 2000). This reading also makes more sense given that one of the comments’ main objectives is to explain how the right requires preventing and treating endemic, epidemic, occupational, and other diseases (United Nations Office of the High Commissioner for Human Rights, 1966, 12.2c-​d). I do not think the general comments are trying to establish that states must spend less on treatment to spend more on prevention. Rather, I take them to suggest that countries should invest in more than one of these things; it is inequitable to neglect prevention for treatment. The comments provide guidance for priority setting and rationing if it is necessary but do (and, I think, should) not presume that states must ration. 10. As Benedict Rumbold argues, there is “a point where talk of ‘progressive realisation’ begins to undercut a given right’s moral force. . . . As Feinberg argues (1966, 143), what a right-​holder has is a right to the benefit, not the efforts of others to make the benefit available. Too much talk of progressive realisation, then, and the right to health increasingly comes to look like a ‘manifesto right’; as Arras and Fenton (2009) put it, ‘an empty promise with no possibility of realisation in sight’ ” (Rumbold, 2017, 16). 11. I believe creative resolve is quasi-​objective. The virtue is a settled disposition that helps one act virtuously. Moreover, if the world generally cooperates, one can have the virtue because the disposition to act virtuously generally means one does. One can fail to act virtuously and have virtue because one generally acts virtuously. However, it seems, the virtue requires more than responsibility—​it requires luck. To have creative resolve, the world must generally comply so that acting responsibly helps one secure significant moral goods (though, again, those who fail to have the virtue due to bad luck are not vicious.) Those who would deny this might accept a completely subjective or objective conception of the virtue. 12. It does not matter for present purposes whether these dispositions amount to a single virtue or a cluster of virtues. For simplicity, I will continue to talk about them as constituting the virtue. 13. Partly because creative resolve is multidimensional, it is not just the mean between two extremes. Resolve, or perseverance, falls between the extremes of apathy and overcommitment, but it requires more commitment rather than less. As courage tends more toward recklessness than cowardice, creative resolve also tends more toward the extreme of excessive creativity than its lack. 14. On this account of the virtue, epistemological judgments are sensitive to practical imperatives in the following way: before accepting the empirical claim that it is too difficult, or impossible, to fulfill a significant moral duty, people must demonstrate a good deal of ingenuity—​they must have creative resolve. We cannot conclude that there is sufficient evidence that something is infeasible without significant creative thought. After all, depending on what we do, even what is infeasible at some time may be feasible at another (see the Appendix for further discussion) (Gilabert and Lawford-​Smith, 2012; Brennan, 2013; Gilabert, 2017). What matters is acting as morality actually requires, not as one thinks it requires. So if one recognizes that one is likely to be biased toward one’s own interests in a way that may prevent one from

Notes  211 doing what one should to fulfill a right, the virtue does push one toward doing a bit more than what one might otherwise conclude is necessary. But one can do too much as well as too little; and, depending on what morality requires, there may be room for those with creative resolve to act altruistically (because what is necessary to fulfill the virtue’s requirements does not reach all the way to what is impermissible). 15. Although overall development resolves some health problems, it does not resolve all of them (e.g., maternal mortality often persists) (Yamin and Maine, 1999; Tarantola et al., 2007). Still, where development can help fulfill the human right to health, creative resolve can suggest it. 16. I believe creative resolve is also the missing key to truly effective altruism. Though I cannot make this case here, I believe we need to take into account all of the facts on the ground but also consider what is truly possible in advancing important moral ends. 17. Some may have the virtue even if they do not desire, or believe it is possible, to fulfill the right. Many, however, seem to believe there are things that they can, and should, do but that they do not do simply because they lack the requisite desire and few will act in the face of apparent impossibility. 18. Hope may also require taking the desire for the end as a reason (perhaps in addition to the probability information and the end itself) (Martin, 2013, 61). 19. The hope that supports creative resolve differs from faith. When one has faith, one believes against all evidence. Faith is blind, but the hope that gives rise to creative resolve is not—​it helps people resist the bald assertion of terrible tragedy but does not allow them to ignore its existence (Tessman, 2009; Nussbaum, 2000b). We should not ignore, and should sometimes actively seek, evidence that can undermine hope; sometimes we are not warranted in trying to secure an end. 20. Even when hope requires taking a desired end as a reason for action, again it does not guarantee it as it may not result in the right kinds of action (McGeer, 2004, 2008; Walker, 2006, Ch. 2). 21. We may, for instance, have to think differently about what we should do in new circumstances where existing moral imperatives’ application is not clear. Johnathan Lear’s story about how the Crow responded to the end of civilization, as they knew it, illustrates radical hope. The Crow had a nomadic way of life that prized the virtues of warfare, most especially courage. Threats to the Crow ability to wage warfare and, so, their understanding of courage came from the Sioux and Blackfoot nations, from white settlers, and from the US government. The Crow showed remarkable flexibility, intelligence, and restraint in refusing to fight the onslaught of tragic history. They decided to abandon their traditional understanding of the virtues and adopt new ones. This required courage but of a different sort than the martial courage that occupied the center of the traditional way of life. Through Plenty-​Coups’ leadership, the Crow eventually fleshed out the implications of this new kind of courage as the tribe aligned itself with the United States against its traditional enemies, the Sioux and the Blackfoot nations, and as it negotiated and defended its landholdings against the United States (Hassoun and Wong, 2012). As Johnathan Lear put it, hope gave Plenty-​ Coups “the sustenance with which he could hold onto this core commitment through

212 Notes the storm . . . it is an appropriate response to our being finite natures” (2008, 121–​2). Or consider Barbara Herman’s discussion of “moral improvisation” when “a shift in social, cultural, political, or even natural circumstances renders familiar moral categories irrelevant or known ways of applying those categories ineffective” (Martin, 2013, 115). Herman talks about how Nelson Mandela responded to the discovery of the deep structural injustice embodied in apartheid. He created the truth and reconciliation councils to deal with this problem. As I understand his action, Mandela exercised radical hope. 22. How hard people must try to fulfill the human right to health will depend on exactly what they must to do to protect individuals’ ability to live minimally good lives. I believe that people must sacrifice anything to which they do not have a right but need not sacrifice their ability to live minimally good lives (Hassoun, 2017a). For present purposes, however, I only assume that the human right to health generates some significant duties. 23. This argument may entail that states and other institutions can themselves possess or embody virtues, though I do not think anything substantive will be lost if one gives a reductive account of this claim—​focusing only on the responsibilities of individuals in appropriate institutional roles. Moreover, if it would better help fulfill human rights not to tell people to cultivate the virtue of creative resolve, one can accept something akin to government-​house utilitarianism and suggest withholding the truth about virtue. 24. One cannot object that creative resolve follows not from the rights obligations but rather from the nonideal situation in which people lack even basic healthcare and health institutions and others are failing to provide these things, for there must be an obligation in play to generate creative resolve (creative resolve is only required for people to fulfill significant moral imperatives). The right provides that obligation. 25. To reject the claim that the right must help guide resource allocation, it suffices to show that the right does something else important for human rights beneficiaries, advocates, and/​or duty bearers—​it gives rise to creative resolve (even if other things also give rise to creative resolve). 26. Some worry that policymakers cannot legitimately exercise creative resolve given their social roles in democratic societies. I consider and respond to a similar worry in Chapter 5. 27. Although I  cannot cash out and defend an account of how to resolve conflicting human rights–​based claims here, there are many alternatives. One might consider the ways in which the claims affect individuals’ ability to live minimally good lives (and other grounds for human rights). Alternatively, as the Appendix will discuss, one might embrace another way of resolving apparent conflicts and determining rights’ limits as well (Waldron, 1993). 28. The virtue’s instrumental value provides a ready response to the worry that virtue-​ based theories must mislocate the bearer of value; we should cultivate the virtue at least in part because the moral goods that creative resolve can help secure are so important. I argue elsewhere, however, that creative resolve has intrinsic value as well (Hassoun, 2018a).

Notes  213 29. Although some argue that a moral human right cannot, on its own, ground a legal right, I disagree. For the sake of clarity, however, I focus on the legal right to health in what follows. I expect similar replies will work for the case of the moral human right to health, but I believe it most important to justify a legal right. 30. I believe Gopal Sreenivasan presents something like the following argument: 1) For a human right to health to be useful, it must guide resource allocation within or between just health systems. 2) To guide resource allocation within or between just health systems the human right to health must tell policymakers how to ration scarce resources. a) A just health system will ration. b) Everyone should have a just health system. 3) The human right to health cannot tell policymakers how to ration scarce resources. 4) The human right to health is not useful.

Moreover, one might suggest the following: 5) If the human right to health exists (or should exist), it should be useful. 6) The right does (or, for the legal right, should) not exist.

I deny 2) and question 1) and 3) so conclude that 4) is false. Moreover, this entails that we should reject 6). I deny 2) and question 1) by suggesting that the human right to health plays another role. That role lets us deny that 2) is correct and question the claim that a) a just health system will ration. Moreover, since a) and b) do not entail 2), showing that the human right to health plays another role will suffice to undermine the support for a) and b) provide for 2). I do not know if 5) is true—​it depends on what useful means exactly. 31. Sreenivasan also argues that given that there are other goods besides health, policymakers can justifiably limit health spending to allocate resources to other important social goods. Moreover, there may not be enough resources to fulfill the right since some medically necessary services are very expensive given the labor involved in providing them and technological growth. I address the latter point below and the former in Hassoun (2019). 32. If resources are scarce and we cannot expand budgets etc., we need to ration. The right’s duty bearers should also treat all people equally whether they are currently receiving treatment or not (they may do worse to take treatment away from some people to help others than to let some die from lack of treatment). This chapter’s arguments apply equally to creating and changing healthcare policies. However, duty bearers cannot just assume that they lack the resources or face set budget constraints. Duty bearers also cannot assume that they must both redirect resources toward the most urgent priorities (e.g., neglected tropical diseases) while trying to find the resources. However, they may have to do so. Failing to ration when duty bearers should can be just as bad as rationing unnecessarily. Recall that the dictates of possibility and permissibility help define creative resolve. Finally, duty bearers can sometimes exercise creative resolve in coming up with better ways of rationing. 33. Although one might try to buttress the argument for rationing, I  do not think it succeeds. Medical technology may mainly help do new things (and not do things

214 Notes more cheaply). Technology’s costs may rise as wage rates increase around the world and populations live longer, requiring expensive end-​of-​life care. However, these trends will probably not continue indefinitely. The United Nations projects, for instance, that life expectancy growth rates will slow this century and have already slowed in developed countries (United Nations Department of Economic and Social Affairs, 2013; Sonnega, 2006). Moreover, developed countries probably make a great deal of healthcare technology, so wage increases in developing countries may not increase costs too much. Even if healthcare technology costs start rising faster than GDP, they may decline with appropriate changes in policy; and not all technology fulfills the needs at issue for the human right to health (Hubbard and Love, 2004; Hollis and Pogge, 2008). If duty bearers do not ration, they may also achieve unjust, or at least worse, results; but advocates of rationing must provide sufficient evidence that policymakers must ration. That is, they must make the case that policymakers cannot do something that protects the health some individuals need to live minimally good lives because something more significant is at stake. Moreover, they cannot make this case simply by asserting that such tragic trade-​offs are necessary. It is not enough to say, for example, that policymakers fail so terribly to address the world’s major health problems like malaria, TB, and HIV/​AIDS because they allocate so much to research on new treatments for diseases like cancer. They must make the causal argument that if policymakers reduced this spending, that would result in greater access to essential medicines and that there is no better way of securing this access. Investment in the healthcare sector is complex, coming from a range of public and private sources (e.g., pharmaceutical companies, international organizations, governmental agencies, and other nongovernmental organizations [see the introduction to this book’s second part]). If one part of the healthcare sector, say a private company, reduces its investment in cancer research, it is not obvious what the net consequence will be: greater profit, less R&D, higher prices? And if we assume the cost savings will be redirected to the desired end, why not assume policymakers can redirect spending on something that harms health instead of something that promotes it like cancer research? Consider, for instance, how some pharmaceutical companies spend twice as much on marketing as they do on R&D; with better incentives (e.g., where companies are rewarded for innovation based on the health impacts of their technologies), they might invest less in marketing and more in greater innovation and access (Swanson, 2015). Most governments also spend a lot on things that harm health, and much of this money might be fruitfully redirected toward investment in health research and international aid. In 2015 in the United States, for instance, the defense budget made up 54% of discretionary spending and health only 9% (Jacobson, 2015). Of course, reorienting the spending toward health would be difficult. Multilateral disarmament may be necessary to retain international security, for instance. However, in ideal theory, this may only mean that we need creative new ways of encouraging positive change in many dimensions only orthogonally related to global health. 34. The claim is not that it is acceptable to limit spending (e.g., on some medical technology) that benefits individual patients for population health gains. As the general comment puts it, “Issues of public health are sometimes used by States as grounds

Notes  215 for limiting the exercise of other fundamental rights . . . the Covenant’s limitation clause, article 4, is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States” (United Nations Committee on Economic, Social and Cultural Rights, 2000). (Article 4 states, “The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society” [United Nations Office of the High Commissioner for Human Rights, 1966].) 35. Sometimes it is not possible or permissible for a given policymaker to expand the budget. Still, the important claim is just that policymakers can sometimes do this. 36. International assistance is morally and legally obligatory, for instance. Creative new ways of getting countries to live up to their obligations may also help fulfill the right. 37. It may even provide reason to question healthcare systems that, like England’s National Health Service and Canada’s Medicare, leave many important health needs unmet. Whether they are failing to meet the human right to health when some of their subjects do not secure the healthcare they need depends on what else they can do and what they would have to sacrifice to do it. 38. One might also worry that screening standards do not consider relationship status, despite the fact that intercourse with multiple partners increases the risk of cervical cancer due to human papillomavirus. Many cost-​effectiveness analyses look only at aggregate impacts without considering distributive justice. 39. Of course, screening should not just increase the overall risk of death (e.g., because the treatment poses a greater risk than the cancer) (Biller-​Andorno and Juni, 2014). Moreover, some of the newer tests are better and might reduce the need for follow-​up testing. However, even if companies provide better care with the savings, they are acting impermissibly if they are obligated to provide this care without cutting coverage (e.g., by reducing waste or cutting inessential expenses). 40. It is, of course, possible that the man in this case would not have survived anyway because he needed more oxygen than mechanical ventilation could provide, but the general point holds and might let policymakers make progress in many cases where rationing initially seems justified. 41. Perhaps if the right’s claimants, advocates, and duty bearers exercise their moral imaginations, they may find good ways to help those in both the cities and the countryside without having to deny anyone care. 42. Similarly, rich states should resist the idea that they just cannot help many people in parts of Africa given poor health infrastructure and brain drain. There are many things they can do. They may stop providing incentives for health workers from poor countries to leave, for instance (Brock and Blake, 2015). 43. It is obviously impossible to evaluate any of these critiques here, but as long as one agrees that such criticism is often important, the argument should succeed. 44. People created TAC to pressure the South African government to extend access to treatment more broadly and succeeded in doing this.

216 Notes 45. Norheim and Wilson (2014) use a definition of priority that includes cost in arguing that litigation often helped people access “low-​priority” medicines (see also Dittrich et al., 2016). 46. On the other hand, if we do better (even just in the meantime) constraining litigation, we should do so.

Part 2 1. Portions of this chapter were reprinted here with permissions from:  N. Hassoun. “Global Health Impact: A Basis for Labeling and Licensing Campaigns?,” Developing World Bioethics 12, no. 3 (2012a): 121–​34 and Eyal, Nir, Samia A. Hurst, Christopher J. L. Murray, S. Andrew Schroeder, and Daniel Wikler. Measuring the Global Burden of Disease (New  York:  Oxford University Press, 2020)  as well as N.  Hassoun. “Globalization, Global Justice, and Global Health Impact,” Public Affairs Quarterly 26, no. 3 (2014f): 231–​58. 2. Global health development assistance does not align with recipients’ disease burden (see Chapter 3 for discussion). 3. In the United States, the pharmaceutical industry contributes about 60% of the funding, the National Institutes of Health 27%, and foundations and other funding sources the remainder (Dorsey et al., 2010). 4. It is important to keep in mind what promotes overall health as well as specific patient groups’ health, but taking patients’ perspectives into account may help better address patients’ needs. 5. PATH recently acquired One World Health, another innovative public/​private partnership developing and delivering affordable, effective medicines to bring drugs for neglected diseases to market. 6. The Institute for Health Metrics and Evaluation has looked at some interventions’ cost-​effectiveness and, so, their impact but does not do this for many interventions and diseases in a consistent, comparable way. See, however, the WHO CHOICE platform for relevant analysis and the discussion of similar models in Chapter 3 (World Health Organization, 2014; Morel et al., 2005). 7. For further discussion, see Hassoun (2012b). 8. Interviews with key decision-​makers suggest that some companies will seriously consider this initiative and that companies with large consumer portfolios can gain a lot from using the label (Hassoun, 2012b).

Chapter 3 1. This effort complements previous efforts to promote health. 2. The World Health Organization (WHO) has compiled an essential medicines list, in part, by considering medicines’ cost. Again, however, I use the term only to indicate medicines that address dire health needs, irrespective of cost.

Notes  217 3. The WHO has even convened an intergovernmental working group, the Secretariat on Public Health, Innovation and Intellectual Property, to examine solutions to the R&D problem and create a global strategy to secure “needs-​driven, essential health research and development relevant to diseases that disproportionately affect developing countries” (World Health Organization, 2016a). One option the working group supported, that is not discussed in what follows but merits significant consideration, is patent pools—​though they will not address pricing issues (Medicines Patent Pool, 2017). 4. For previous work on this topic, see Hassoun (2012a, 2012b, 2013b, 2013c, 2015c, 2016b, 2016c, 2017). Other philosophers have expanded on the labeling idea, for example, see Eyal (2012) and, for criticism, see Hassoun, 2013c). 5. For another proposal, see Hubbard and Love (2004). 6. The original index focuses, in particular, on first-​line drugs for malaria, first-​and second-​line HIV/​AIDS medicines, and treatments for drug-​susceptible, multidrug-​ resistant, and extremely drug-​resistant TB. 7. When possible, researchers do this at the country level. 8. The average impact is an average over all untreated or imperfectly treated cases. If treatment effectiveness is 80%, researchers consider 20% of cases ineffectively treated. When actual effectiveness data do not exist, the model uses data on drug efficacy. Efficacy’s meaning obviously varies by disease. For HIV, for example, researchers normally establish efficacy by looking at viral load suppression. Researchers must do further work to more accurately translate outcomes into DALY impact in the future. 9. Other alternatives for HIV/​AIDS include the World Bank and Burnet Institute’s Optima models; the East-​West Center’s AIDS Epidemic Model; the Institute for Disease Modeling’s Epidemiological Modeling Software EMOD; and the University of California, San Francisco’s Global Health Decisions model. For a helpful review, see Kahn et al. (2017). Another useful tool for health resource allocation is the WHO CHOICE platform, which looks at the cost-​effectiveness of various interventions (World Health Organization, 2014). 10. Perhaps because Global Health Impact models are significantly different from, and have some advantages over, traditional epidemiological models, the Global Fund considered using the Global Health Impact Index rather than Avenir Health’s models in calculating its health impact in 2015. Like several of the other companies/​organizations offering epidemiological and agent-​based models, Avenir employs dozens of scientists, has large grants including financial support from international institutions, and has at least one advocate who played an important advisory role to the Global Fund in making this decision. That said, the head epidemiologist at the TB section of the WHO has been very supportive of Global Health Impact efforts, and international organizations’ interest attests to the fact that the scientific basis for the Global Health Impact models is strong. 11. Published results of WHO CHOICE analysis for malaria, TB, and HIV/​AIDS have limited geographical coverage and examine only some therapies (e.g., drug-​ susceptible but not drug-​resistant TB treatment) utilizing large assumptions across regions and treatment types. On the other hand, the methodology has the advantage

218 Notes of estimating program-​level costs and benefits of implementation, and the WHO has analyzed the program-​level costs and benefits of administering drugs for many other diseases (Hogan et al., 2005; Baltussen et al., 2005; Morel et al., 2005; World Health Organization, 2018). 12. Companies do less R&D on new drugs and produce fewer new drugs, in part, because they effectively outsource these tasks. However, they still invest a lot in drug development (Rafols et al., 2012). 13. Ideally, researchers can see which companies have marketing authority around the world and consider other ways to aggregate drugs’ impacts. 14. To see which companies hold the patents on medicines, researchers rely primarily on Food and Drug Administration patent applications, patent searches, and companies’ annual reports. (I would like to thank Cornell’s Legal Research Clinic for assistance. See global-​health-​impact.org/​new) 15. If researchers can ascertain international institutions’ contributions to this procurement effort, they may proportion credit for procurements to these organizations and improve, for example, on the Global Fund’s method for calculating the lives saved with their interventions. 16. This is not to deny that it is important to secure input from all the relevant stakeholders, including pharmaceutical companies, to create a good and sustainable rating system. It is important, however, that the mechanisms for doing so isolate decision-​makers from undue influence by industry. Companies should not get to set priorities for evaluation. 17. Ideally, researchers would look at medicines’ marginal impacts, but formulating the correct counterfactuals and gathering the data to do so are difficult. For discussion and explanation see Hassoun (2013b). I explain some ways researchers are improving and expanding the model across intervention types and time as well as potential areas for future development. Also, see Hassoun (2015c, 2016c). 18. The index need not incentivize every company to participate and does not depend on their good will as it gives them financial and reputational incentives to pay attention to their rating. For discussion, see Brock (2014) and Hassoun (2014a). 19. Researchers might also consider the problems associated with drugs and technologies in estimating their net benefits (e.g., some drugs have pretty bad side effects that researchers should probably take into account and others require difficult-​to-​ implement treatment regimens). 20. Researchers can conduct other analyses. They might, for instance, forecast expected changes in effectiveness given changes in other variables like cost or modify the impact measure by dividing it by a measure of company profits. Currently, researchers use DALYS, but they might weight them in various ways to account for different views about the value of life versus disability or of addressing different diseases (e.g., orphan diseases or diseases of the poor). For one possibility, see Esposito and Hassoun (2017). 21. Sensitivity analysis suggests that companies’ relative rank is quite stable. Some uncertainty is acceptable as long as this does not affect whether companies are close to crossing the bar for certification.

Notes  219 22. For some preliminary evidence that the label can affect brand perception, see Chapter 6. 23. Which companies have (RED) products may change over time. Some labels are also based on relative rather than absolute performance—​like Energy Star, where products compete only within classes (see the discussion of this particular label’s problems in the introduction to Part 3) (Brooks, 2016). 24. The world’s biggest pharmaceutical company, Pfizer, had revenues of about US$48 billion per year in 2008–​2009 (Pfizer, 2010). However, several smaller companies hold patents on key drugs. 25. US$2 billion exceeds the cost of developing a new drug on many estimates (Millman, 2014; Light, 2009, 2011; Light and Warburton, 2009). But, again, even if companies will not develop new drugs for this amount because they want to preserve future markets, they can help people access existing medicines much more easily. 26. Sometimes companies may not want to use a label on generic products if they would prefer their customers buy their higher-​priced brand name drugs. Nevertheless, they can choose to use the label only on their brand name products if that is the case (Healthcare Packaging, 2012). 27. Some observe that the agriculture lobby succeeded in lowering the standards for what qualifies as organic. But even if one prefers higher standards, the USDA does oversee pesticide use and other farming practices that motivated the organic movement in the first place (US Department of Agriculture, 2017; Wilce, 2014). 28. Even the Norwegian government uses some socially responsible investment criteria in investing its pension funds (Follesdal, 2007). 29. This proposal is different from the Global Health Impact proposal advanced here. Universities could take into account Global Health Impact status in issuing licenses where doing so does not constrain access even if they are not willing to embrace equitable access licensing. 30. These included captopril (Capoten), fluoxetine (Prozac), acyclovir (Zovirax), azidothymidine (AZT), acyclovir, fluconazole (Diflucan), foscarnet (Foscavir), and ketoconazole (Nizoral). 31. University technology transfer yielded around US$25 billion in 1996 (Association of American Universities, 1998). 32. On changing patterns in pharmaceutical company innovation, see National Institute for Health Care Management Foundation (2002). 33. Furthermore, a lot of funding for universities comes from government, so this graph probably understates the government’s role. 34. The Stevenson-​Wydler Act similarly helped National Institutes of Health (NIH)–​ funded research receive patents and get licensed to drug companies. The companies market the drugs and then sometimes patent them for other uses. If a similar campaign could get the NIH to give preference to highly rated companies, this might help people access essential medicines and technologies as well. After all, the NIH has helped create essential drugs like AZT (developed by the NIH in conjunction with Duke University and then licensed to GlaxoSmithKline) (Angell, 2004, 57).

220 Notes 35. The Association of University Technology Managers’ licensing surveys provide information about almost 200 major universities’ budgets, research expenditures, and licensing agreements as well as other useful information (Association of University Technology Managers, 2007, 2014, 2016). 36. Another point of contact between universities and companies is when companies want to do clinical and preclinical trials. Universities could allow research funding only from Global Health Impact–​certified pharmaceutical companies, even if it does not result in university-​owned intellectual property. Unfortunately, university researchers, whose careers depend on such research contracts, may reject this policy. 37. The University of Pittsburgh’s Office of Technology Management generated US$7.1  million in revenue in 2007 from licensing, equity cash-​outs, and legal fee reimbursements from licensees. It earned US$4.9 million in licensing revenue alone, and its equity in the start-​up Novecea generated US$92,000. Finally, it sold the spin-​ off Stentor Inc. for US$6.7 million (Office of Technology Management, 2007, 7–​8). 38. The moral case for encouraging universities to consider Global Health Impact status is probably much stronger than giving preference to small US businesses. 39. About 20% of Stanford faculty members had industry funding in 2004. About 30% of Stanford’s faculty resided in the medical school (Delgado, 2005). Of course, not all of this funding was from pharmaceutical companies; but pharmaceutical companies probably fund some non-​medical faculty, so it seems reasonable to suppose that 20% of the medical faculty had pharmaceutical funding at Stanford. If that is right, about 7% of Stanford’s faculty is funded by pharmaceutical companies. Another way of getting at the proportion of industry funding from pharmaceutical companies is to suppose that the percentage of the medical faculty at Stanford receiving industry funding is about the same as the percentage of medical faculty receiving industry funding on average. If it is, then 25% of medical faculty at Stanford had industry funding. Again, other industries may account for some of this funding, but pharmaceutical companies may fund non-​medical faculty as well. So it seems reasonable to conclude (again) that about 7% of the Stanford faculty had pharmaceutical funding. Stanford, however, has a large medical school, and most universities and colleges probably receive much less industry funding. 40. The reason people should embrace this campaign would probably differ from USAS’s since it is different to make goods that essentially, and directly, rely on the labor of the poor than to make goods that simply ignore the needs of the poor. However, see discussion in Part 3’s introduction and Chapter 4. 41. This assumes that universities do 30% of pharmaceutical companies’ research and that similar success ensures that at least 2% of these research funds benefit the poor. Since US academic centers spent over US$42 billion in R&D in 2005, 2% of US$42 billion is US$840 million per year (Hassoun, 2012a; Association of University Technology Managers, 2007). Moreover, as noted, universities only get about US$240 million per year from licenses, but they get more from the biotechnology companies they create. For instance, “Columbia University, which patented the technology used in the manufacture of Epogen and Cerezyme, collected nearly US$300 million in royalties from more than 30 biotechnology companies over the seventeen-​year life of the patent”

Notes  221 (Angell, 2004, 71). And some of this incentive would presumably come from other downstream companies bound to give preference to highly rated companies in selling their technologies. How much incentive this proposal can generate depends on how much universities demand. 42. It is, of course, possible that a proposal addressing only one issue will be more effective. But, as addressing both matters, I believe the proposal has an advantage, everything else being equal. Some argue that people should support projects that are already having an impact as there will be fewer transition costs and less negotiation and agreement necessary to secure positive outcomes (Brock, 2014). It is not obvious that existing projects will have a larger impact than new ones, however (Hassoun, 2014a). Moreover, given that the access problem persists, I believe that new ideas are important. See, also, Chapter 4 for related discussion. 43. There are many other promising ideas in the literature as well, though I do not have the space here to canvas them all. Many innovative licensing and intellectual property strategies merit serious consideration (Abramowicz, 2003; Faunce and Nasu, 2008; Danzon and Towse, 2003). Some suggest better predictions of demand for medicines for neglected diseases (Boldrin and Levine, 2008). Others encourage developing countries to form alliances with each other and reform their patent offices (Yu, 2008; Drahos and Mayne, 2002). Yet others endorse international organizations’ move toward promoting development (Lerner, 2008). Some even suggest changing university licensing practices to allow greater access to university research (Evans, 2008). 44. Although intellectual property rights encourage new drug and technology development, these rights may also prevent the poorest from securing existing drugs and technologies. With some exceptions, the TRIPS agreement requires WTO member countries to recognize other countries’ patents. The so-​called TRIPS-​Plus provisions require countries to allow ever-​greening patents beyond the 20-​year mark and discourage generic competition. Pharmaceutical companies can apply for patents on many trivial aspects of their drugs and technologies like packaging or dosing regimens to extend protection beyond their primary patent life. Competing companies must notify them before producing generics, and the originator gets an automatic 30-​month extension on the patent. Sometimes they try to extend protection further with legal action. Often, generic companies must test drugs again before putting them on the market even if they are equivalent to patented versions. This expensive testing can delay generic entry into the market (Hassoun, 2012a). See Federal Trade Commission (2002), Sell (2004), and National Institute for Health Care Management Foundation (2002). 45. This may also limit countries’ ability to do reference-​based pricing. 46. “The combined worth of the world’s top five drug companies is twice the combined GNP of all Sub-​Saharan Africa” (Global Health Watch, 2005, 103). In 2002, the 10 largest pharmaceutical companies made over $39 billion, more than half Fortune 500 companies’ total profits. By 2014, the top 10 companies had made $89.8 billion in profits, with an average margin of 19.6% (Anderson, 2014). “With such profits at stake, it is no surprise Big Pharma invests a huge amount of money in protecting . . . [patents]” (Global Health Watch, 2005, 10).

222 Notes 47. Similarly, when Thailand issued a compulsory license for efavirenz, an HIV/​AIDS drug produced by Merck, the US government was displeased (see McDermott, 2006). 48. To learn about Australia’s difficulties in extending access to essential drugs and technologies to its population under TRIPS, see Global Health Watch (2005, 106). The administrative burden of trying to issue a compulsory license may also provide a roadblock to doing so (Global Health Watch, 2005, 106). 49. A more recent alternative is another licensing and rating system—​UAEM’s Global Access Licensing Framework and metric for rating university technology transfer offices (Universities Allied for Essential Medicines, 2016). UAEM has promising initiatives, and it is probably too soon to know if they will succeed. Their metric, however, looks only at universities’ policies and actions rather than their impact (Universities Allied for Essential Medicines, 2010, 2013, 52; 2015). 50. Some argue that such alternatives are more cost-​effective than prize funds. People need to offer large prizes for companies to risk not developing an acceptable invention quickly enough (see Kremer and Glennerster, 2004). 51. A bidding system might provide a partial solution to this problem. On this, see Pogge (2007). 52. Hollis and Pogge’s proposal is similar in some ways to the proposal advanced in Hubbard and Love (2004). Hubbard and Love suggest separating out markets for R&D from markets for products (putting the latter in the public domain and funding the former through tax contributions or competitive tender systems). 53. It is not clear that people ought, on Pogge’s moral theory, to try to minimize the GBD rather than the disease burden of those everyone’s shared institutions have harmed (until everyone’s human rights are satisfied). Because this is a complicated (and partly empirical) question, I will not discuss this difference between our initiatives further here. 54. Selgelid’s delightful article discusses some difficulties in framing the rating question and evaluating companies’ efforts. The issues he raises merit further consideration. 55. It is not at all clear how Pogge estimates his program’s cost, but it might cost a bit more than he imagines as drug companies report average R&D costs in the hundreds of millions (Angell, 2004; Hoffman, 2014; Berdud et al., 2016). 56. Companies can get credit for improving access to clean water insofar as that improves medicines’ impacts on the original index but not just because clean water improves health directly. However, I am not convinced that having a narrow remit is a problem for the project. Few people object to efforts to improve clean water because they do not also help people access essential medicines. Although the index can do more than one thing, it need not do everything. 57. Brooks (2016) points out that R&D is expensive, so it is an advantage of the proposal that companies can increase their Global Health Impact scores in many ways—​ though we have seen that it may well generate a large enough incentive to stimulate new drug development. 58. The counterfactual relative to which something counts as an improvement should probably approximate the current situation as closely as possible. Some other ways to deal with any bad incentives this creates exist. For discussion, see Selgelid (2008).

Notes  223 59. When I asked in 2009, Fair Trade USA had never even had a lawsuit to defend its label, though two people at the organization helped prevent abuse by contacting those who infringed their copyright. They relied primarily upon their customer base for monitoring (interview with Catherine Sinclair, business development associate, August 13, 2009). 60. One might worry about focusing effort only on measurable outcomes. However, few deny that it is important to measure progress, and I believe this is only a problem if that is the only way people try to achieve positive change. 61. Researchers can also expand the index to take into account other things like companies’ profits or policies (e.g., they can divide impact scores by a measure of company size) if doing so better promotes global health. This would also keep the rating system from creating incentives for mergers and acquisitions or monopolies that might decrease competition in the industry and reduce global health impact overall (Brooks, 2016). Presumably, however, the rating system would then create less incentive for larger companies to address the most pressing global health problems and reduce the resources available for doing so. 62. Health advocates might, of course, create a label based on both indexes, but I believe that it is better to focus on improving outcomes directly where possible. 63. I am less concerned about effects on non-​essential drug markets. Some companies that do not make essential medicines make personal care products that compete with pharmaceutical companies’ over-​the-​counter personal care products. If pharmaceutical companies receive a label and that reduces the competition for personal care products, I believe that is a small price to pay for incentivizing greater access to essential medicines.

Chapter 4 1. Portions of this chapter were adapted with permission from N. Hassoun, “Individual Responsibility for Promoting Global Health: The Case for a New Kind of Socially Conscious Consumption,” Journal of Law, Medicine & Ethics 44, no. 2 (2016b): 319–​ 31. https://​doi.org/​10.1177/​1073110516654125. 2. One might also ask if pharmaceutical companies are living up to their human rights obligations more broadly (and I consider this question in this chapter) (Gruskin and Raad, 2010). 3. Presumably, fully just states would modify intellectual property laws, for instance, to ensure that everyone’s human right to health is secure. Such laws may include the intellectual property clause, article i, section 8, clause 8, of the US Constitution, which gives Congress the power to enact legislation governing patents “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Cornell, Legal Information Institute, 2017). States also have to refrain from entering into trade agreements that restrict access to essential medicines simply to augment national income.

224 Notes 4. The Argument for Obligation does not imply that all pharmaceutical companies act terribly or that no company does what it should. Many companies save many lives. Some violate no one’s rights. Nevertheless, the argument suggests that companies sometimes do some things wrong and that most consumers with disposable income should purchase Global Health Impact–​labeled products if that becomes a realistic possibility. Presumably, states and international organizations should also hold companies to account, perhaps by implementing some of the United Nations (UN) Secretary-​General’s High-​Level Panel on Access to Medicines’ recommendations (2016). 5. I am aware, for instance, that analogues of the argument implicate many other companies in rights violations for their everyday business practices (and would endorse many such analogues). Some will prefer to accept a different understanding of the human right to health that does not have this implication. However, I believe the book has done enough to establish that significant argument is necessary to reject the claim that individuals have this right given its importance for protecting individuals’ ability to live minimally good lives. 6. I set aside, for this chapter’s purposes, questions about companies’ corporate agency as it should not impact this chapter’s conclusion much if the best way to account for the claim that companies have responsibilities is fictionalist or reductive—​if this is taken as shorthand for individuals’ responsibilities in corporate roles. That said, critics usually raise this worry about much more complex agents—​for my take on some related issues, see Hassoun (2012b). 7. This is not true of every company, but most major companies at least seek to extend patent protection on drugs within national borders in some of the ways detailed in this chapter. I leave the necessary qualifications implicit in what follows. 8. “Common examples of TRIPS plus provisions include extending the term of a patent longer than the twenty-​year minimum, or introducing provisions that limit the use of compulsory licences or that restrict generic competition. One of these provisions is known as data exclusivity. This refers to exclusive rights, granted over the pharmaceutical test data submitted by companies to drug regulatory authorities . . . [to] . . . obtain market authorisation. It means that information concerning a drug’s safety and efficacy is kept confidential for a period of, say, five or ten years” (Médecins Sans Frontières, 2011). 9. Cited in De Wet (2014). 10. The United States should also refrain from making it difficult or impossible for people to access essential medicines and, for instance, adopt the guidelines the UN High-​Level Panel on Access to Essential Medicines advocates. It might also use trade sanctions, etc., to push for access rather than to constrain it. However, recall that, on this book’s interpretation, no agent should make it difficult or impossible for people to access essential medicines. 11. See Angell (2004), Faunce and Lexchin (2007), Boldrin and Levine (2008, 241–​276), New York Times (1989, 2000), Saul (2008), Pollack (1990, 2000), Schacht and Thomas (2002), Mossinghoff (1999), Gupta et al. (2010). 12. Ibid.

Notes  225 13. Ibid. 14. Ibid. 15. Ibid. Not all orphan drugs are for essential medicines as this chapter uses the term. Many are for rare diseases, and some should not receive orphan status at all. Recall that this book uses essential medicines in its intuitive sense—​to refer to medicines for which there is great need in developing countries—​not just those on the World Health Organization’s (WHO’s) essential medicines list. 16. Ibid. 17. More than 750 million lived on less than what $2 a day buys in the United States, on the most comprehensive recent estimates (World Bank, 2016). 18. Some note that the TRIPS agreement does not greatly hinder access to essential medicines as defined by the WHO (Attaran, 2004). Again, this chapter does not use this (cost-​sensitive) definition of essential medicines, and patents do restrict access to important drugs for diseases like HIV/​AIDS (World Health Organization, 2006a). 19. Companies are often exercising legal rights provided in national constitutions, but this does not mean that they respect the justified international human right to health at issue here or that they should have the legal right to violate this right. Moreover, this does presume that agents besides states can violate rights. Recall Chapter 1’s discussion of responsibilities correlative to the human right to health: on adequate conceptions of the right, all agents should refrain from violating it. For further discussion, see the arguments that follow in this chapter. 20. See the discussion in Chapter 1 (and its notes). 21. The claim that no one should make it difficult, or impossible, for people to fulfill their human rights is a moral one: everyone should abide by this legal standard. The UN High-​Level Panel on Access to Essential Medicines suggests that states should hold them to this standard, as does international human rights law. See Chapter 1. Although the book does not explore how to create the necessary legal mechanisms, doing so is incredibly important. Chapter 2 provides a general approach that may be useful. Still, I expect researchers will need to engage, at length, with the details of legal and political practice to come up with workable proposals. 22. Even in developing countries, it is not clear that stronger patent protection will spur innovation. There is some empirical evidence that tells against this conclusion. For discussion, see Shah et al., 2013, 848. 23. “Since 2000, and the establishment of product development partnerships, the amount of public, private, funding and the number of products has increased. The annual rate of new product approvals for neglected diseases and very neglected diseases grew from 1.8 in 1975–​1999 to 2.6 in 2000–​2009” (Towse et al., 2011). 24. This might reduce marketing costs, and some studies suggest that companies spend much more on promotion, marketing, and administration (20% of their revenue) than R&D (13%) (Shah et al., 2013, 848). 25. See, for instance, Médecins Sans Frontières (2013). 26. Wilson (2018) provides a nice analysis of how to justify intellectual property rights. See discussion in note 33 in this chapter.

226 Notes 27. They can also constrain the supply of medicines to lower-​income regions or raise prices in low-​income countries (though this would, of course, not help the poor access essential medicines). 28. I cannot fully defend this claim here. Nonetheless, I believe it is unlikely that companies could argue that their obligations to shareholders—​or other stakeholders—​ outweigh, or override, obligations to respect the basic human rights at issue. 29. For some nice reflections on how to distribute the obligations correlative to human rights in the first instance, see Brinks and Gauri (2014). If one views human rights obligations as universal in the first instance and “nested”—​so that every agent has a remedial obligation to aid when others fail to do so—​it is even clearer how to distribute these obligations. Take a case where, for instance, (1) a banker might offer a lower interest rate to a company helping people secure shelter (when a state fails to provide an adequate safety net) or (2)  struggling individuals’ families can help them secure shelter. One might say both lending agents and individuals’ families have obligations to aid in a crisis when they are able to assist. This implies that, if one does not aid, the other should. Moreover, understanding obligations as nested may provide some guidance for determining how much different agents must do. One might say the lender fails to fulfill its obligations if the families cannot provide the requisite aid. Of course, this only partially addresses the indeterminacy problem. It is sometimes still unclear what exactly people should do when many agents can help, but it may help to say everyone should assist when others do not. Still, creative resolve might help us address human rights deficits and assign responsibility in such cases. 30. One should not object that many morally acceptable actions make it difficult for people to access essential medicines. If companies can make more money by downsizing, many people may lose their jobs and health insurance. This is probably acceptable if there is a social safety net in place that will protect everyone’s ability to secure essential medicines and so forth. When states fail to provide such guarantees, however, human rights provide some constraints on normal business practices. See discussion in the notes. 31. At least, critics must offer significant argument to show that these apparent rights violations are spurious or justified. 32. Even if some companies will go bankrupt if they do not prevent people from accessing their essential medicines, they cannot normally violate rights. Companies are not individuals, and while some individuals may lose their jobs if companies go bankrupt, this does not justify them in allowing, or causing, others to die. Companies may benefit from entering into collective agreements to stop violating rights and help people access essential medicines. To justify extending intellectual property rights and setting prices that make it difficult for many people to access essential medicines, companies must establish that they cannot otherwise fulfill other obligations. 33. James Wilson offers a nice argument against the idea that there is a moral right to intellectual property and suggests that the legal right is, at best, a necessary evil. He proposes the rights justification principle on which “any justification of an intrinsic moral right must show that violating the right would typically result in either a wrongful harm or other significant wrong to the holder of the right, which

Notes  227 is independent of the existence of the moral right we are trying to justify” (Wilson, 2018). He thinks that we cannot justify a moral right to intellectual property without presupposing the existence of the right because otherwise no one is wronged if someone copies work without authorization. Wilson says there are only three ways in which someone might be wronged: by (1) being excluded from using what one created, (2) being unable to prevent others from using one’s creation, and (3) others unfairly benefiting from one’s efforts (Wilson, 2018). But since intellectual property is non-​rival, the creator (1) is not harmed by being excluded from using what was created or (2) is only harmed if she or he has a right to make money from preventing others from using the creation. Similarly, (3) it is only unfair if others benefit from the creator’s effort without compensation if the creator has a right to compensation. Wilson points out that “restricting access to ideas which it would be legitimate for people to know is not good in itself. Where it is pursued, it must be for the sake of some other goal” like advancing human creativity (Wilson, 2018). Wilson thinks intellectual property can harm people even if they would not have been able to use a creation had others not created it, for example, “when a drug comes onto the market which provides the only treatment for a painful and debilitating condition, and the company which holds the patent on the drug uses its monopoly power to charge very high prices and thereby excludes nearly everyone in developing countries from getting access to the drug” (Wilson, 2018). He says this situation harms people in the same way that someone harms another by charging an exorbitant fee for rescuing that person (even if that person would otherwise have died). More generally, Wilson points out that intellectual property rights can ride roughshod over other important values including liberty, equality, and efficiency (Wilson, 2018). So he argues as follows:

1. There are no moral rights to privately owning intellectual property. We can either grant or not grant such legal rights without wronging inventors. 2. Granting private intellectual property rights may sometimes violate other rights such as the right to life. 3. Denying access to ideas is not good in itself. Denying access to ideas is good only when it serves some further purpose, namely promoting the beneficial effects of human creativity. 4. Restricting access to ideas is in tension with other important goals such as protection of liberty, making the best use of resources, and equality. 5. Therefore, private intellectual property, where we adopt it as a way of incentivizing creativity, should be viewed as a necessary evil (Wilson, 2018).

34. Obviously, some libertarians disagree (see Schmidtz, 2002). 35. In any case, although libertarians will certainly reject this, I believe society gives companies a social license to operate and advance their interest, but this license cannot go beyond certain limits. The purpose of granting them intellectual property rights is, rather, to help companies fulfill their social role of doing R&D on medicines to address the worst global health problems. 36. It is also noteworthy that sometimes companies consent to promoting the public good by signing corporate conduct codes, and it is reasonable to hold them to such

228 Notes codes to address hard-​to-​resolve coordination problems (Hsieh, 2006). Moreover, they may have something like a duty of fair play to extend access to essential medicines to the poor given that states give them monopolies for new inventions via patents. Companies have wide leeway to set the terms of trade for their technologies. Moreover, many potentially Global Health Impact–​certified companies have signed on to the Global Compact and thereby explicitly commit themselves to “support and respect the protection of internationally proclaimed human rights; and . . . make sure that they are not complicit in human rights abuses” (United Nations Global Compact, 2013; Lepora and Goodin, 2013). 37. Even if this argument works, I need to say much more about what individual companies should do. Perhaps I can extend some of the arguments in Section 4.4 about individual consumers’ obligations here. That said, I  leave further discussion for another time. 38. Glaxo-​Smith-​Kline similarly donates drugs for lymphatic filariasis and malaria, and many other companies donate drugs for other diseases. 39. Merck decided to donate the drug because few of the people afflicted with the disease could afford to pay even $3/​dose and international procurement agencies were unwilling to pay even $1/​dose. 40. The company has also responded to requests for different formulations of the medicine. 41. It could probably also do things differently to increase its global health impact. Several of Merck’s corporate social responsibility efforts are US-​based, for instance, but might be expanded internationally. 42. Note that drug donation programs are often criticized for providing substandard medicines—​often past expiry dates or of dubious quality. Firms benefit from tax write-​offs, and the drugs may be hard to dispose of properly. It is important that donations meet genuine needs. Moreover, system-​wide health investment is necessary to improve global health in the long term—​not just disease-​specific efforts. 43. The conditions under which companies are blameworthy for failing to fulfill responsibilities based are not clear. Must companies qualify as corporate agents? Must they foresee that their actions will make it difficult, or impossible, for people to secure essential medicines? Must they understand that they are benefiting from the fact that some people cannot secure these medicines? 44. Also, see the discussion in the earlier notes. 45. 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.” 46. The idea here may need some qualification—​the real problem is that they benefit from a highly nonideal patent system they have helped to implement. 47. The idea here is that not just capacities but social role matters, and this seems to drive much discussion of companies’ responsibilities with respect to access to important medicines, in particular. See Lee and Hunt (2012). 48. See Hassoun (2012b, Ch. 1).

Notes  229 49. See Hassoun (2012b) for more discussion. For a good general defense of assigning costs to the agents most able to bear them, see Wenar (2007). Although his account may not provide the full explanation for all role-​related or remedial responsibilities, it is plausible for the kind of moral liability at issue. Again, David Miller (2001) provides a pluralistic account of remedial responsibility that might help guide action when institutions fail. 50. Wealthy states are well placed to help address, are causally implicated in, and probably benefit from essential medicines’ poor distribution around the world. They can help solve the collective action problems that make it difficult to fulfill rights. 51. As noted in the Appendix, the idea that, in principle, the obligations correlative to positive rights are held universally, or collectively, helps respond to Onora O’Neill’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’Neill, 2005; Hassoun, 2012b). 52. I mean to suggest that e) is a plausible way to interpret the obligation correlative to the legal right’s basis. I must acknowledge, however, that the claim that corporations have any responsibilities correlative to human rights (even in nonideal circumstances) is contentious. Moreover, forcing corporations to fulfill these responsibilities may produce bad consequences. Societies may do worse to prohibit companies from extending intellectual property rights without other incentives for innovation. Fortunately, there are many promising ways to create alternate incentives. 53. Thomas Dunfee (2006) suggests this point with his nice adaptation of Peter Singer’s pond argument to corporations’ duties to respond to the AIDS epidemic. However, I believe pharmaceutical companies should do a lot to address global health problems even if they are not the only ones who can address these problems. I also believe the problems they must address are much more widespread than Dunfee maintains. Finally, I do not endorse Dunfee’s recommendation for specifying the responsibilities involved, though it merits further consideration. 54. It is always possible to improve these (see Shah, 2004). Public entities are also sometimes well placed to assist private industry in helping people access essential medicines (see Global Fund, 2015a; International Federation of Pharmaceutical Manufacturers & Associations, 2013a, 2013b). 55. The UN special rapporteur on the human right to health’s “Guidelines for Pharmaceutical Companies in Relation to Access to Medicines” provides some guidance about what companies should do here (see Chapter 1 and Hunt, 2008a). 56. Partly for the reasons articulated in this chapter, the fact that individual pharmaceutical companies bear different degrees of responsibility for their collective failure to do enough to address the access to medicines issue does not undercut the conclusion that companies should address it. I doubt that any but the highest-​ranked companies on the Global Health Impact Index do their fair share to address the access to medicines problem given its size, the large mismatch between need and R&D funding, and the average major pharmaceutical company’s meager contribution to addressing the problem. The average company contributing is alleviating