Pfizer/BioNTech, Moderna, Johnson & Johnson, Merck, and other Big Pharma companies solidified their secrecy protections during the COVID-19 pandemic to maximize their ability to profiteer and control the supply and distribution of vaccines and life-saving medicines. With few exceptions, mainly the U.S., they required governments to sign non-disclosure agreements on the price of vaccines and medicines and on supply, indemnification, and delivery terms in drug purchase agreements. They did so even if national law of the contracting countries, like South Africa, or regional entities, like the European Union, require price-term transparency in government procurement contracts. They did the same with respect to COVID antiviral treatments, like Pfizer’s Paxlovid, in agreements with UNICEF and the Global Fund to Fight AIDS, Tuberculosis, and Malaria, which negotiated option agreements on behalf of the Access to COVID-19 Tools Accelerator (ACT-A).
The biopharmaceutical industry made record profits on COVID countermeasures in no small part by prioritizing high-price sales to high-income countries and enforcing secret tiered prices on upper-middle-income countries for delayed and piecemeal deliveries. Even the concessionary access prices on vaccine sales to Gavi were not always transparent.
Big Pharma is now trying to expand its secrecy shield where full medicines price disclosure had previously been the norm. As the latest example, Médecins Sans Frontières (MSF) reports that ViiV has insisted on price and contract-provision non-disclosure for its attempted purchase of pitiably small quantities of long-acting cabotegravir (CAB-LA) for PrEP for use in low- and middle-income countries. Drug prices for antiretroviral medicines to treat and prevent HIV have been shared publicly as a matter of course, including ViiV’s prices for dolutegravir, a backbone of current HIV treatment regimens worldwide. For years, MSF was able to publish a comprehensive guide on HIV medicines prices called Untangling the Web and companies routinely reported their ARV prices on public websites.
How is it possible that information that was once considered “public” is now being treated as trade-secret protected confidential information? How is it that governments are being coerced – and allowing themselves to be coerced – to keep purchase agreement conditions and price terms confidential even when national law requires full disclosure? The answer is monopoly power and governments’—and multilaterals’—craven capitulation to unconscionable Big Pharma demands.
Activists in South Africa have taken the government to court—and won— in a case to lift secrecy on the government’s purchase of Johnson & Johnson COVID vaccines. There is ongoing controversy in the European Union over the secrecy of vaccine agreements Pfizer negotiated with the President of the European Commission. Although the Biden Administration chose to resist non-disclosure and publicize price terms for COVID vaccines and medicines, it has taken the unprecedented step of bypassing transparency laws and directing its contractor, Chemonics, to sign an unprecedented obligatory non-disclosure agreement with ViiV for PEPFAR’s procurement and distribution of CAB-LA. This should be challenged in court.
The world cannot afford – literally and morally – to allow the world’s most profitable industry to use self-defined secrecy shields to hide critical pricing information that is readily accessible and even mandatory on jars of peanut butter in grocery stores. ViiV and other Big Pharma companies maliciously use non-disclosure to prevent countries from seeking better prices negotiated by other purchasers. They require secrecy about unconscionable delivery terms so that they can consistently put poorer countries at the back of the line. While daily oral PrEP regimens are safe and effective, research has found that CAB-LA, taken every two months, is superior to oral PrEP for HIV prevention, including among transgender women, cisgender adolescent girls and women, gay men and other men who have sex with men—populations that are made extremely vulnerable to HIV infection because of discrimination, criminalization, and marginalization. Adherence to a daily oral PrEP regimen is a persistent obstacle undermining the effectiveness of oral PrEP as an HIV prevention tool particularly for adolescent girls and young women in sub-Saharan Africa. Five thousand new HIV infections occur weekly among women and girls aged 15-24 years. CAB-LA has the potential to be a game-changing advancement in ending the HIV pandemic—but ViiV is the biggest barrier to accessibility, hoarding CAB-LA volumes for prevention and treatment in the wealthiest countries.
The biopharmaceutical industry’s misuse of trade secret rules extends beyond purchase agreements. Moderna and Pfizer/BioNTech maintain stringent control over information, manufacturing know-how, and materials needed to manufacture mRNA vaccines. These companies refused to share their “secret proprietary knowledge” with other producers who could have helped the world vaccinate itself against COVID-19 much more quickly and equitably. Even now, industry is touting its ability to respond to pandemic demand through purely voluntary measures, including tiered pricing, even though it wants the agreements and prices to be shrouded in secrecy and unaccountable as companies laugh all the way to the bank.
Governments must rein in rules on trade secrets and confidential information and ban the use of non-disclosure agreements in biopharmaceutical procurement contracts. They need to create broad public interest and public health exceptions to trade secrets and/or allow compulsory licensing of trade secrets. Trade secrets on medical products need to be waived in response to pandemics and other global health emergencies, and this should be addressed at the WTO and in WHO negotiations on amendments to the International Health Regulations and on a new Pandemic Prevention, Preparedness, and Response Treaty.
More immediately, ViiV should immediately drop its insistence on secrecy in its CAB-LA purchase agreements with MSF, PEPFAR, Global Fund, and others, and should also commit to rapidly expanding production capacity so it can meet unmet need for PrEP by women, girls, and key populations across the global South.
