Bill Jeffery is a public interest food lawyer and Executive Director of the Ottawa, Canada-based Centre for Health Science and Law. He was the Canadian National Coordinator of the Centre for Science in the Public Interest for 19 years. He is a member of the Steering Group of the global Conflict of Interest Coalition (a network of 160 groups and coalitions representing more than 2,000 group signatories to a statement of concern about conflicts of interest and health policy-making) and participated in the United Nations High Level Meetings on the Prevention and Control of NCDs in 2011 and 2014 and the WHO’s Technical Consultation on Conflicts of Interest and Nutrition in Geneva in 2015. He is vice-president of the Geneva Global Health Hub.
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WHO Framework of engagement with non-State actors (FENSA): Drawing bright lines or abandoning safeguards?
In May 2016, the World Health Assembly adopted the Framework of engagement with non-State actors (FENSA) which includes several ambiguous and seemingly internally contradictory approaches to addressing conflicts of interest, including:
- expressly allowing business interest groups to participate in governance of the WHO (which had been largely, if not consistently, disallowed by past policy), while nevertheless stressing the importance of safeguarding against conflicts of interest; and
- conferring extensive discretionary powers on WHO staff to institute safeguards, while consistently refraining from stipulating potentially problematic industries or quantifying a maximum permissible degree of financial influence.
FENSA assigns WHO staff the duty of spelling-out important details of the new conflict of interest safeguards and fully implementing FENSA by May 2018 for a report to the World Health Assembly.
By Bill Jeffery
The Framework Convention on Tobacco Control (FCTC) contains a specific and unequivocal prohibition against the involvement of the tobacco industry in the development and implementation of tobacco control policies Article 5(3)). Similarly, the International Code of Marketing of Breast-milk Substitutes calls upon Member States to ban all commercial marketing of breast-milk substitutes in consideration of the special vulnerabilities of mothers to commercial influence (Article 5(1)). This high caliber of clarity and certitude is so at odds with the expressed ambiguity in the final text of FENSA that an outside observer is invited to assume that either the WHO’s governing body, the World Health Assembly, has decided to permit the influence of trillion-dollar global food, alcohol, pharmaceutical drug, and medical technology industries — or that WHO staff requested and were delegated an unfettered discretionary power to exclude industry to an extent that appears to be at odds with other aspects of the text. The FENSA text states only that:
- 26: For WHO, the potential risk of institutional conflicts of interest could be the highest in situations where the interest of non-State actors, in particular economic, commercial or financial, are in conflict with WHO’s public health policies, constitutional mandate and interests, in particular the Organization’s independence and impartiality in setting policies, norms and standards…
- 44 bis: WHO will exercise particular caution, especially while conducting due diligence, risk assessment and risk management, when engaging with private sector entities and other non-State actors whose policies or activities are negatively affecting human health and are not in line with WHO’s policies, norms and standards, in particular those related to noncommunicable diseases and their determinants.
None of the text draws the lines required to stipulate what would constitute a conflict of interest beyond the tobacco and arms industries that have long been singled-out by the World Health Organization.
The final FENSA agreement presumes that commercial organizations and industry associations might be motivated to engage with WHO at their own expense for a benevolent purpose, but not motivated by interests that might give rise to a conflict of interest. The Framework leaves the distinct impression that such companies represent tolerable conflicts or that WHO staff and decision-making structures have extraordinary personal capacities for discerning and ignoring the influence of funders and financially-motivated benefactors — capacities that lawyers, judges, scientists, journalists, and public servants do not, and are not presumed to, possess.
FENSA also proposes, for example, “pooling” financial contributions from competing companies in a given sector as a countermeasure to offset conflicts of interest (thereby creating “competitive neutrality”), an approach that contradicts, strikingly, the WHO’s own technical guidance to Member States published a few weeks before the FENSA arrangement was adopted, and which states:
“Legal experts stated that including a diverse range of participants in a joint venture, partnership or committee might have value as a mechanism to ensure representation of various interest groups, but it does not effectively cope with conflicts of interest. The conflict of interest of one actor does not balance out the conflict of interest of another.” (Source: WHO. Addressing and Managing Conflicts of Interest in the Planning and Delivery of Nutrition Programmes at Country Level. Report of a technical consultation convened in Geneva, Switzerland, on 8–9 October 2015)
- Implementation Timeline: The WHO Framework of engagement with non-State actors (FENSA) is to be fully implemented by May 2018, in time for a progress update to the World Health Assembly. Presumably, the dates of implementation will not be effected by the transition to a new Director General in May 2017. However, the considerable discretion conferred on WHO staff – to, for instance, determine what constitutes a conflict of interest, and how conflicts of interest should be addressed – could be influenced by the priorities and resolve of the new Director General.
- Global Coordinating Mechanism: The WHO Global Coordination Mechanism on prevention and control of NCDs (GCM/NCD) and its committees meet periodically. In October 2016, there is a Global Dialogue Meeting on the “Role of non-State actors in supporting Member States in their national efforts to tackle noncommunicable Diseases (NCDs) as part of the 2030 Agenda for Sustainable Development”, 19 – 21 October 2016 Balaclava, Mauritius.
- WHO Regional Offices: WHO regional offices periodically hold consultations and may hold meetings about COI or reflect new approaches to addressing COI in meetings related to WHO reform or substantive health policy topics, e.g., related to nutrition or pharmaceutical topics.
Civil society coalitions already engaged in this process
See the following joint-statements endorsed by hundreds of groups and networks representing more than 2,000 health and public interest groups world-wide:
- Statement of concern endorsed by 60 groups and networks at the May 2016 WHA meeting: http://healthscienceandlaw.ca/wp-content/uploads/2016/06/60-group.statement.Conflicts-of-Interest.pdf
- 2014 COIC Statement of Concern published at the United Nations General Assembly meeting in New York City in July 2014 (endorsed by 175 groups and networks, representing more than 2,000 non-profit associations internationally): http://healthscienceandlaw.ca/wp-content/uploads/2016/09/Conflict-of-interest-safeguardsHealth-trump-trade.July2014.pdf
- 2011 COIC Statement of Concern published at the United Nations General Assembly meeting in New York City in September 2011 (endorsed by 160 groups and networks, representing more than 2,000 non-profit associations internationally): http://healthscienceandlaw.ca/wp-content/uploads/2016/09/conflict-of-interest.2011Statement.pdf
Watch FENSA implementation!
Call for civil society engagement
Possible actions will be shared, vetted, built-up, and discussed internally among subscribers of a dedicated G2H2 listserv. Contact BillJeffery@HealthScienceAndLaw.ca to get an invitation to the list. Participation in the listserv is open to G2H2 member organizations on request, and to experts and other participants on application by registering at www.G2H2.org. Contact Bill Jeffery with questions.
- Framework of Engagement with non-State Actors (FENSA). Sixty-Ninth World Health Assembly. May 28, 2016 A69/10. Available at: http://apps.who.int/gb/ebwha/pdf_files/WHA69/A69_R10-en.pdf?ua=1
- May 28, 2016 Centre for Health Science and Law comment on the May 2016 WHA’s adoption of FENSA. “World Health Organization weakens conflict of interest safeguards” http://healthscienceandlaw.ca/wp-content/uploads/2016/06/WHO.Critique.Conflicts-of-Interest.pdf
- WHO Basic Documents of the World Health Organization. 2014. Available at: http://apps.who.int/gb/bd/PDF/bd48/basic-documents-48th-edition-en.pdf
- Technical Report: Planning and Delivery of Nutrition Programmes at Country Level. Report of a technical consultation convened in Geneva, Switzerland, on 8–9 October 2015. 2016. WHO. Geneva. Available at: http://apps.who.int/iris/bitstream/10665/206554/1/9789241510530_eng.pdf?ua=1
- List of NGOs currently in Official Relations with WHO: http://who.int/civilsociety/relations/NGOs-in-Official-Relations-with-WHO.pdf?ua=1
- Amandine Garde, Bill Jeffery, Neville Rigby. “Food Marketing and Conflicts of Interest.” October 2016. European Journal on Risk Regulation: [forthcoming]
- Paul Lincoln, Patti Rundall, Bill Jeffery, Gigi Kellett, Tim Lobstein, Lida Lhotska, Kate Allen, Arun Gupta. Conflicts of interest and the UN high-level meeting on non-communicable diseases. Sept 2011. The Lancet. 378 November 12, 2011 at e6. Available at: http://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(11)61463-3.pdf
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