International Baby Food Action Network (IBFAN)
Comments on
WHO Guidelines on Interaction with Commercial Enterprises
(Preliminary version July 1999)
These comments are in two parts:
(A) detailed comments which follow the text of the guidelines
(B) general comments on the structure and logic of the guidelines
A. Comments following the text of the guidelines
1. Purpose of these guidelines
It is good that WHO chooses to call these guidelines "Guidelines of Interaction with the Commercial Sector" and not "Guidelines for partnership with the private sector". Unfortunately this sober and clear approach of what the guidelines are about is soon discarded in point No. 1, second paragraph which says:
"WHO needs to create sound partnerships...with commercial enterprises..." and goes on to say that partnership should generally be established on the basis of "mutual respect, trust, transparency and shared benefits."
This raises a number of questions:
* How does WHO define "partnerships"?
* Why does WHO
(a) "need" to create "partnerships"
(b) in particular with commercial enterprises?
We absolutely agree that "transparency" (towards the member states and civil society organisations in contact with WHO) should underlie any transaction between public institutions and transnational corporations and their business organisations. However, we strongly disagree that "mutual respect, trust, and shared benefits" are of any value in the assessment of the usefulness of such interactions. Indeed, we are deeply concerned that the elevation of a whole variety of interactions with the for-profit sector to a "partnership" and the statement that such partnerships have to be based on respect, trust, and mutual benefit is a serious obstacle in the need for an objective assessment whether and when a interactions with the commercial sector are in conflict with WHO's general mandate (and/or its programmatic mandates).
"Respect" and "trust" have to be earned. They can only be based on a serious and meticulous evaluation of the track record of each particular company, industry sector, and/or business association. Unfortunately, since the closing of the UN Centre on TNCs in 1992, the UN has been deprived of any central agency which could provide the UN agencies with such information. One of the first tasks of any UN agency which is planning to increase their interactions with transnational corporations should therefore be to call for the re-establishment of an agency able to give them the information for meaningful assessment as to whether or not a commercial donor or contractor is in any way engaged in activities which are contrary to the societal goals which the UN agency are mandated to protect and promote. In addition there is a need for a very good in-house data bank of the track records of companies with which the organisation has already dealt or is intending to work.
When businesses engage "partnerships" with each other their interaction is by no means automatically based on respect, transparency, and trust. On the contrary, each of the contracting corporations will most carefully scrutinise whether the benefits of the partnerships will outweigh its potential risks. Each corporation will make sure that it will maximally benefit from this business interaction.
For this very reason, "shared [or mutual] benefits" are also an inappropriate basis for the interaction of intergovernmental agencies with for-profit organisations. Partnerships with WHO must be measured by whether or not they benefit the countries and people for whom WHO is working.
For all of the above mentioned reasons we would recommend discarding the word "partnership" and use "interaction" between the WHO with the commercial sector. The "partnership" discourse anthromorphises corporations and risks to blunt critical faculties which are essential for the assessment of the potential risks of too close, and trusting interaction with the for-profit sector. "Caution" and healthy distrust seem to be the appropriate attitude for dealing with commercial enterprises, many of which are currently involved in a big PR exercise to represent themselves as "responsible corporate citizens" which should be allowed to operate with a minimum of outside interference or regulation.
Please delete: "the partnership should enhance WHO's image...." This should not be an aim of interaction with the commercial sector. WHO's reputation will be automatically enhanced if the interaction is to the benefit of the world's population.
Also delete: "...to provide an innovative and positive approach to cooperation and partnership with the commercial sector" of the last sentence in this section. This phrase is promotional statement which does not justify why there is the need for such a positive approach. Add instead "in order to maintain WHO's integrity and independence."
2. Principles of collaboration
Replace "collaboration" by "interaction" (or add interaction) as "generating cash and in-kind donations to WHO" is not a collaboration but fundraising from the for-profit sector.
Add the sub-heading: "Types of interaction" above "WHO regularly collaborates..."
Add sub-heading: "Principles of interaction" above "Commercial enterprises working with WHO...."
It is very worrying that this document does not mention that commercial enterprises should also follow WHO policies in the area of marketing of breastmilk substitutes given the fact the compliance of companies to the International Code still represents a major problem. Therefore, add "the marketing of infant feeding products" after "food safety". The guideline should contain a referral listing to all relevant WHO policies.
Regarding "evaluation criteria" in first line of 3rd paragraph, we wish to know which criteria will be used to assess the track record of corporations in the fields of "occupational health", etc? How will WHO check the "regulatory compliance" of the enterprises and their "past activities"?
Replace "which will poorly reflect on the credibility of WHO" with "which raise doubts about the integrity of the corporation or business organisation and its commitment to societal wellbeing".
Regarding "Conflict of interest", please include potential conflict of interests with WHO' work as "advocates" for the poor and marginalised and also the general mandate of UN agencies to uphold, promote and protect human rights.
Regarding the paragraph beginning "To avoid conflict of interest..", norms and standards should also take social context and impact into account, not only scientific evidence.
Regarding the questions at the end of the section, delete "major" because corporate responsibility and liability should not hinge on whether or not an unethical or wrongful act or practice concerns a major product or service of a commercial enterprise,
delete "on a large scale" after "engage". Negative acts are just that; there is no objective method for measuring their magnitude. Consider the case of minor but systematic violations.
reconsider the last question because it is too subjective. No degree of harmful practices, products or services should be acceptable.
3. Donations
3.1. Suitability
Regarding the suitability of a corporation as a "partner" of WHO, there is a need for a broad set of criteria to assess the suitability, not just based on the company's impact on health.
Regarding para 1, "Funds are acceptable...", replace "provided this would not adversely reflect on WHO" by "provided they are not engaged in any activities which are in conflict with WHO's mandate".
Regarding para 3, "The acceptability...", add the following sentence: "Funds are also not acceptable from commercial enterprises the marketing practices of which are in conflict with WHO policies and recommendations."
3.2. Return of donations
"Any donation... will be returned to the donor".
Add (for the sake of transparency) "and the reasons will be made public."
3.3 Avoiding Conflicts of Interest
Referring to the second sentence of the second paragraph, "In such event,..." any sort of vested interest should be kept out regardless of how remote the link appears to be. Widening the funding base to other enterprises having similar indirect interest will only compound the problem as enterprises do act as a block with the potential of exerting even greater undue influence and pressure.
3.4. Clinical trials
Generally speaking sponsorship of clinical trials might be seen as seeking product endorsement, a means of influencing research and silencing critics. While cooperation may serve the public interest, the possiblity for conflict of interest may be minimized if cash contributions are confined to specific matters only, for example, generic drugs.
Please explain why the fact that a "clinical trial would not be performed in conformity with internationally accepted technical and ethical considerations" is a criterion for the acceptance of a cash donation of a company which has a direct commercial interest in a trial in question. A corporation which is able to give cash to WHO should also be able to ensure that their trials meet internationally accepted ethical and good clinical practice standards.
3.5 Unspecified programme support
Regarding para II, the term "so large" is too vague. WHO should determine at the outset what it considers a "large" contribution by fixing a percentage beyond which unearmarked donation will be deemed inappropriate and liable to cause dependency on a single company.
3.6 WHO meetings
It is irrelevant whether funding is acceptable towards costs of the meeting or specified invites at a WHO meeting. Commercial funding creates dependency and will invariably be used by commercial enterprises wishing to adopt
3.7. WHO staff participating in outside meetings
All forms of commercial support for WHO staff to participate in outside meetings should not be allowed. WHO staff are in key positions to influence policy decisions and their views and judgements must not be compromised by the possible perception of commercial influence. The independence and impartiality of WHO staff could be in danger of being jeopardized should they receive commercial support.
NB: Please replace term "trade organisations" by "business organisations" throughout this document.
3.8 Development of guidelines or recommendations
It is insufficient that restriction in this respect is confined to commercial enterprises having direct commercial interest in the area concerned. The scrutiny applicable to commercial entities having indirect interest in 3.3 should also apply here.
3.10 Publications
Publications should be specifically subject to the provisions of section 11 relating to control.
3.11. Acknowledgements
In addition to the acknowledgement of donations in documentations we suggest
to publish an annual report listing all the donations and important collaborative activities between WHO and corporations or their business organisations.
5. Seconded personnel
We are opposed to the idea of accepting personnel secondment by industry. We do not believe that industry staff people should be financed by a corporations to work with WHO. From the statement on confidentiality it seems that WHO is aware of the risk of industry persons being seconded for intelligence reasons. We do not believe that a statement of confidentiality will be sufficient to take account of this risk. What measures will be taken if a person violates such contract? Is there any way of taking effective punitive action?
Moreover there needs to be a clearer view of what constitutes a conflict of interest with WHO's mandate, e.g. we share Health Action International's concern about the secondment of a PR professional of a pharmaceutical company to the Tobacco Free Initiative.
6. Cost recovery
We are not sure that WHO should be involved in evaluating products against official WHO guidelines. We understand that usually such WHO services are primarily for governments who cannot afford such testing themselves. Why should they be extended to corporation which can afford to have their products tested by regulatory authorities? How will WHO prevent the company from using such evaluation as an endorsement of a product? Would there also be the same type of services for citizen action groups (who cannot afford to pay for such evaluations)?
7. Contributions in kind
7.1. "The acceptability of donations in kind is covered by paragraphs VI.3.10-110 in the WHO Manual." We would be grateful to have this part annexed or integrated into the guidelines of interaction with the commercial sector. Does the Manual specify what is understood as "the objectives and policies of the Organisation"?
7.2. Regarding large scale donations from pharmaceutical companies, 4th bullet, how will WHO prevent the donation from being promotional in nature?
We would further propose to change the sentence to "A drug donation should neither be promotional nor political in nature." The reason for this additional phrase is that pharmaceutical companies have been and continue to use so-called "strategic corporate sponsorship" to influence agencies and public opinion in their favour when they are facing tighter regulation and/or are being criticised for socially irresponsible behaviour. Whenever a pharmaceutical or other corporations offer large contributions in kind, there is a need for a thorough scrutiny as to whether this contribution is meant to deflect attention away from the corporation by enhancing its reputation by publicising its donation to WHO. How will this be integrated into the guidelines and the evaluation procedure?
8. Meetings
8.1 Exhibitions at co-sponsored meetings
In line with concerns raised in item 3, there should be no co-sponsored meetings so the question of exhibitions by commercial enterprises need not arise. The reasons for the prohibition of exhibitions at WHO meetings as set out in 8.2 apply equally here.
8.3 Joint meetings with trade (business) organizations
It is difficult to envisage a situation whereby conflict of interest will not arise in a collaborative exercise with business organizations. The general principle should be no co-sponsorship or joint organization of meetings.
9. Use of WHO name/logo
It is good that WHO is aware of the risk of its name or logo to be used for marketing purposes and that it specifies that this should not be permitted. However, again, there is a great risk that WHO's name will be used for political purposes. In PR language this is called "image transfer." Association of corporations with a well reputed organisation sought with the explicit aim to enhance the reputation of the corporation... irrespective of whether the corporations merits a good reputation or not. We, therefore, propose to expand this sentence to "... for the marketing of its products nor or enhancing its image for political purposes".
12. Implementation review
It is commendable that WHO foresees periodic reviews. We see it as essential that public interest organisations which have long been watchdogs of industry activities such as IBFAN, HAI and Consumers International be included into this review. A clear agreement is needed about the date of the first review and the periods between reviews. This review should not only look at the application and impact of the guidelines but also envision a process for changing and amending these Guidelines in the light of the findings of such review.
Annex: Procedures for implementing these guidelines
Who are the members of the Committee on Private Sector Collaboration? How will it be ensured that the decisions of the Committee will be made transparent to the general constituency of WHO? In view of the sensitive nature of large corporate donations we suggest publishing the decision of the Committee followed by a four week period for the possibility of comments from WHO Member States and civil society NGOs.
B. General comments on the structure and logic of the guidelines
We still believe that there are fundamental problems concerning WHO's intention to increase interaction with the commercial sector in the name of global health. We have not seen any justification why increased interaction in particular with transnational corporations and their business organisations is a major way forward towards WHO's goal of Health for All. We believe that there is an urgent need for a public debate to re-evaluate the trend towards "partnership" between UN agencies and business organisations.
Even though we have given rather detailed comments to the guidelines in the first part, this in no way constitutes an endorsement of the principle of increased interaction with the commercial sector nor of the draft guidelines. In fact, we believe that the draft guidelines have serious shortcomings in what concerns their aim to ensure that interactions with the commercial sector serves global public health goals.
For example, although they contain some very detailed prescriptions, they lack clear guidance of how to evaluate conflict of interests. (This is acknowledged in footnote 1 which states: "It is anticipated... to expand the second section to deal in more detail with ethical issues arising in the establishment of collaborative arrangements with commercial enterprises.")
We would recommend a different structure for this guideline:
- It should be preceded by a summary of WHO's mandate and its specific objectives.
- This should be followed by an clear explanation why increased interaction with the commercial sector would be of benefit to the world's population.
- Then should come a listing of what types of interaction are covered by the guidelines (as explained previously we recommend to not use the name partnership, and above all to discard the idea that the basis for interaction between WHO and the commercial sector should be mutual respect, trust, transparency and shared benefit).
- Rather the stated basis of interaction with the commercial sector should be that it positively contributes to WHO's mandate and to ensure that any such interaction does not have a negative effect on WHO's mandate in its technical, nominative, and advocacy role.
- Thus, there is the need for a statement that interaction with the for-profit sector and its business organisation risks conflicting with WHO's mandate.
- To be followed by the more specific guidelines how to optimise the benefits and to prevent harm from such interaction.
- There needs to be more reflection about how to ensure maximum transparency, in particular about any collaboration or acceptance of funding which risks jeopardising WHO's integrity or haveing a negative impact on health policies
We propose
* the revival of a UN Centre for collecting information on TNCs,
* a thorough review of the composition of the Committee of Private Sector Collaboration,
* an annual publication of all corporate donations and important collaborative projects with the corporate sector,
* the publication of the decisions of this committee for comments by WHO Member States and NGOs,
From this draft of the guidelines it appears that WHO is aware that corporations might use any interaction for marketing purposes. However the risk of corporations using its interactions with WHO to influence international health politics (either through intelligence, increased lobbying opportunities such as improved access to policy makers, regulators and other important decision makers) seems still inadequately addressed.