International trade standards and the regulatory powers of governments at the end of the 20th century - with special emphasis on public health standards and the Canadian public health system

Study by Gottlieb & Pearson
commissioned by the Canadian Health Coalition

ISSUE: Do the commitments made by Canada as a Party to the WTO and NAFTA erode the ability of governments, both federal and provincial, to maintain high standards as well as generally preserving the public health system created under the Canada Health Act and related federal and provincial laws?

In particular, the following issues will be canvassed:

1. What threats are posed to the Canadian health system by the Agreement on Sanitary and Phytosanitary Standards and Chapter 7 of NAFTA?
2. What is the impact of the Agreement on Trade in Services (GATS) and Chapter 12 of NAFTA on the right of non-Canadians to supply medical services?
3. What is the impact of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Chapter 17 of NAFTA upon the Canadian Health system?
4. The impact of WTO and NAFTA dispute settlement procedures on the Canadian health system.
5. What course of action can be recommended to deal with these issues.

GENERAL CONSIDERATIONS

A number of factors currently contribute to raising the profile of these questions. Free Trade in the form of the FTA and NAFTA has been in existence for Canada during the last ten years. It is now possible to take stock of the impact on Canada of these agreements over time. Secondly, the multilateral trading order, in the shape of the World Trade Organization (WTO) and the General Agreement on Tariffs and Trade 1994 (GATT 1994), also took a quantum leap in scope and complexity five years ago and it is beginning to be possible to take stock of the impact of these agreements upon Canada. Furthermore, both at the regional level, with the Free Trade Agreement of the Americas and, at the multilateral level, with the December WTO Ministerial Meeting in Seattle and a possible new Round of Multilateral Trade Negotiations, it appears that important new negotiations are contemplated.

Added to these international and legal considerations is the current crisis in funding the health care system. The crisis is not unique to Canada. Even Germany, at one time the richest and most successful social democratic country has now embarked upon a course of public service and health cuts (because of tremendous costs associated with reunification). The federal government and provincial governments in Québec and Ontario, particularly associated with health spending cuts, have all been to power in recent elections, but provincial elections in Nova Scotia, New Brunswick and Manitoba were defeated, at least partially, on the basis of a poor record of public health delivery.

The model chosen for health insurance and hospitalization in the 1950's and 1960's was that of a publicly funded health system. Most health services, except dentistry and cosmetic surgery, are covered and doctors are required to opt for practice in or outside the public scheme. Most health care facilities, especially hospitals are publicly owned and operated facilities where "private" medicine is not encouraged and generally prohibited under the Canada Health Act system. Private insurance, mandated and regulated by law does not play the part it has in Europe and Japan, and doctors are not allowed to practice both in and outside the public system, as they do in the U.K. The contrast with the situation in the USA, where private insurance and private managed care (supplemented by immense public investment in medical research), is the rule, except for those over age 65, is even more striking.

The Canadian health system is held up to be the very best in the industrialized world. This may well be the case. Health is recognized as an essential public good that shapes the fabric of Canadian society. Unlike the U.S., Canadian do not treat health as commodity, but rather support the maintenance and improvement of the health system and its principle of universality.

An issue that should not be neglected in considering potential threats to the Canadian health system is the impact of Chapter 11 of NAFTA. This chapter deals with the rights of cross border investors in the three countries. It contains provisions repeating the duty of states to compensate investors whose interests are expropriated. These articles were adopted with the Mexican energy expropriations of the 1920's in mind as well as the bad American memories of the adoption of the Canadian National Energy Programme of the 1970-80's. The object is to protect property owners in the event of a public taking of their property. However, in a number of instances (See Soloway, Note in the 1999 Canadian Yearbook of International Law) Companies subject to regulatory action by the NAFTA governments have argued that their property has been expropriated, or have otherwise suffered damage through a violation of Chapter 11. In one instance, where the Canadian government closed its borders to the importation of the gasoline additive MMT, without at the same time banning the production of the chemical in Canada, the company alleged and successfully won damages from the Federal Government on the grounds that their investment in Canada had been expropriated. This is arguably a very forced interpretation of the concept of expropriation but it was successful. During the controversy surrounding the adoption of federal tobacco advertising legislation, lawyers for the American tobacco industry threatened to invoke this provision, as well as the TRIPS Agreement, in the event that the use of their trade marks were restrained by plain packaging.

The concern that regulatory action in respect of public health will be characterized as expropriation is thus a serious issue. It would be all the more so if negotiations to adopt a successor to the Multilateral Agreement on Investment (MAI) were to be taken up again in the context of a new round of Multilateral Trade Negotiations - something that has been proposed by some WTO Members but not as yet supported by Canada.

1) What threats are posed to the Canadian health system by the Agreement on Sanitary and Phytosanitary Standards (SPS) and Chapter 7 of NAFTA?

The GATT Article XX:b allows WTO Members to take non-conforming measures when they are "necessary to protect human, animal or plant life or health." The Agreement on Sanitary and Phytosanitary Standards (SPS) and Chapter 7 of NAFTA are designed to expand the very general commitments made in the GATT in Article XX that sanitary standards not be used by states as a means of restraining international trade. They are among a number of legal instruments developed since 1968 to deal with the potential impact of non-tariff barriers upon international trade. A parallel agreement under the WTO deals with technical standards - the equivalent in NAFTA being Chapter 9. In recent years the SPS Agreement has been the object of considerable controversy between Canada and the USA, on one side, and the European Union on the other respecting the EU ban on the importation of beef which has been fed a number of growth hormones. Comparable and even more serious disputes appear to be developing concerning the extensive EU restraints placed upon the sale and importation of genetically modified organisms. (See inter alia Regulation (EC) No 258/97).

The SPS Agreement is founded on the general commitment not to use SPS measures to frustrate international trade and not to arbitrarily discriminate between WTO Members where similar conditions prevail. SPS standards which are compatible with the Agreement are deemed to meet the tests of the GATT Article XX:b exception of measures "necessary to protect human, animal or plant life or health." These principles are unexceptionable, however, problems have arisen from the criteria which the SPS Agreement sets up for conformity and the manner that they have been interpreted. SPS Agreement Article 2:2 is the key operative provision:

2. Members shall ensure that any SPS measure is applied only to the extent necessary to protect human, animal and plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence....."

A WTO dispute settlement panel in the 1998 Beef-Hormones Case ( Canada and the USA v EC) has interpreted this text as implying that the EC could not ban the importation of beef from cattle fed on five different hormones from its market since the ban was not supported by a scientific consensus and since the ban was not in conformity with the non-binding standards for use of the hormones developed by the World Health Organization Codex Alimentarius Commission. The Appellate Body attenuated this position somewhat by stating that a WTO Member had the right to adopt higher standards than those prevailing internationally but that these higher standards must be the result of a careful and impartial risk analysis process. In doing so the WTO dispute settlement process reached a conclusion which is arguably more radical than that which would be reached under either NAFTA or the law of the EU - a curious situation since the latter agreements imply a much greater degree of economic integration and surrender of sovereignty than does the GATT 1994. Equally worrying is the doubt cast by the WTO dispute settlement process on the status of the protective principle as a rule of GATT law or even as a rule of public international law. This approach has been maintained in the admittedly easier 1999 Salmon (Canada v Australia) case involving the Australian ban on the importation of fresh and chilled salmon.

At the present time, Canada has taken a complaint before the WTO against France, alleging that the French ban on the use of asbestos in France cannot be justified under the SPS Agreement. Canada is relying on the Beef - Hormones decision to make its case. A decision is expected before the end of 1999. Should Canada win (an unlikely outcome), this would be a further blow to the authority of WTO Members to adopt SPS measures.

The weight given to scientific opinion and international standards, even when non-binding, and the rejection of the protective principle allowing states to set the level of health protection above that which scientists in the exporting country consider necessary constitutes a serious limit on the capacity of states to protect public health. It is an interpretation of the SPS Agreement which appears to put producer interests far above those of consumers in importing countries and as such should be the object of concern.

This interpretation of the SPS Agreement appears to be the result of a badly-worded text. It is not clear that the comparable NAFTA text, Chapter 7 would produce the same result as the wording on the result to take higher standards is stronger than that of the WTO text. Interestingly, in the related area of environmental standards and their relation to the rules of international trade a similar tension exists. At first, in the 1991 and 1994 Tuna-Dolphin I and II Cases (Mexico & EU v USA), GATT panels reached conclusions which suggested that environmental rules (environmental conventions using trade rules, extraterritorial environmental rules or rules relating to the production process rather than the product itself) would have to give way to the rules of the GATT in the event of conflict. These positions were taken on the basis of the exceptions Article XX which does not even mention environmental protection, thus leaving the panels to work on the basis of very general and rather inarticulate general principles. Environmentalists, many of whom wish to see states use trade sanctions to promote environmental goals, were taken aback by these panel reports and reached the conclusion that GATT law was hostile to environmental values. However, in the 1998 Shrimp-Turtle Case (Thailand et al v USA), the WTO Appellate Body appeared to be sensitive to the criticisms levelled by environmentalists at the earlier rulings. In this case the Appellate Body insisted that WTO Members have an unquestioned right to set high standards of environmental protection and in some circumstances are justified in taking measures to protect natural resources beyond their own jurisdiction.

It would thus seem that WTO panels can reach decisions which reconcile trade law with other values on the basis of general principle, but when faced with very specific texts such as the SPS Agreement, the reconciliation of seemingly conflicting values becomes very difficult. It is probable that the only way out of the present impasse with respect to SPS standards is a revision of the language of the SPS Agreement. At the present time there seems to be some discrepancy between the approaches taken to domestic regulation on SPS and environmental issues by WTO dispute settlement panels.

A related issue concerns labeling standards. In the Tuna I Case the GATT panel ruled that non-discriminatory labeling standards concerning the manner of production of the goods were compatible with GATT law. The standards in this case were the rules of the USA governing "green" labeling. Given the significance of labels in the process of consumer choice this ruling is of great significance, not only for environmental labels, but also for labeling schemes whose purpose is the reinforcement of SPS rules. The principles appear to be the same in both cases. It will thus be important that future negotiations under the WTO not have the effect of weakening the right of WTO Members, or of private parties in the market, to adopt non-discriminatory labeling schemes. The WTO Committee on Trade and the Environment has been studying these issues for some years. The work of this committee should be scrutinized as it would be brought forward to the negotiations in the event of a new round of Multilateral Trade Negotiations.

2) What is the impact of the Agreement on Trade in Services (GATS) and Chapter 12 of NAFTA on the right of non-Canadians to supply medical services?

The Agreement on Trade in Services (GATS) and Chapter 12 of NAFTA were adopted in order to protect cross border trade in services from discriminatory measures which restrain or frustrate the ability of service providers to offer their services in other countries. As such these provisions reflect the desire of the WTO and NAFTA Member States to extend the protections of trade law beyond the traditional area of goods into the rapidly expanding area of services.

The question for the health sector is to determine whether the potential advantages of the extension of service protections to health services would be of sufficient benefit to Canadian health providers abroad to justify the probable disruption to the existing domestic health system.

This is thus first an foremost a matter of domestic policy for Canada. To benefit from exports of health services in the long run Canada may be forced to open at least some of its health service markets. If Canada desires to retain a largely autonomous made-in-Canada health system, the trade-off may be that Canadians will not benefit from export markets. What is clear is that Canada is already coming under pressure to open its health service markets to foreign service providers. Canada's trading partners, principally the U.S., are preparing a position for the Ministerial meeting in Seattle in December, which states that Medicare (i.e. all public health systems, particularly those that do not permit foreign private competition) are not compatible with the GATS protection for liberalized service markets. This is an ominous development for supporters of universal Canadian health care.

The GATS and Chapter 12 of NAFTA operate somewhat differently. Under the GATS WTO Members must grant MFN treatment to the cross border services of all Members if they grant them to any one Member. This is subject to the right to grant additional rights to a restricted number of Members in the contect of a free trade a agreement such as NAFTA. The MFN is subject to a further and rather unusual right to refuse MFN treatment in areas chosen by the WTO Member State. The result of this is that MFN treatment may not apply to many service areas if foreign service providers are not allowed into the country and there is the additional protection of the right of restriction of the ambit of MFN treatment. In the field of health care Canada has allowed few foreign health providers into the country so that it owes little MFN treatment in the sector. Unfortunately, Canada did not take specific MFN reservations in the health care sector.

National treatment (NT) under the GATS is not generally granted as it is under the GATT to goods, rather it is only available to those services where a WTO Member specifically offers it in its Schedule of NT concessions. Canada has made a concessions in eight service areas but has made no NT concessions in the area of health services.

The GATS is thus very much a work in progress. Many of its basic articles are yet to be fully fleshed out (eg safeguards) and the advantages to service providers of WTO Members, although tangible, are limited. The most dynamic areas affected by the GATS are the financial and telecommunications service sectors where major negotiations were conducted after 1994, leading to the conclusion of important Protocols in both service sectors. Other negotiations are continuing in the area of professional services. These do not currently extend to the health sector but could be extended - they deal with such issues as the right to work in the sector and mutual recognition of professional qualifications. What is certain is that if there is a new round of Multilateral Trade Negotiations services and in particular, health care services, will be on the agenda. The EC and the United States have been pressing for further negotiations on services and they are almost certain to occur. When this happens, it will be important to ensure that the Canadian position on foreign access to the health service sector reflects on the future universal, public good nature of the Canadian health system.

NAFTA operates somewhat differently, in that both MFN and NT are required to be given to cross border services and service providers coming from the other NAFTA countries. However this duty is subject to a broad right to list service areas which are to be exempted from MFN and NT. Canada has taken a general reservation with respect to health services in Annex II to NAFTA. Since the health sector is largely under provincial jurisdiction and since the Provinces are subject to the same duties as the Federal Government under NAFTA it was necessary for them to list excepted areas in the same manner. This process was to have taken two years for provincial and state governments. But when it became apparent that the provinces and states would not make this deadline, a general reservation for all provincial health sectors was agreed upon and is still in force. However this situation may become untenable over time and there will be increasing pressure from other Canadian and American service sectors to liberalize provincial and state rules. If this happens the health sector will be under renewed scrutiny and those services providers who have an interest in entering the Canadian health sector will bring pressure on provincial governments to be allowed to do so. To the extent NAFTA parties have expressed a willingness to reconsider Chapter 11 (Canada, to a lesser extent the U.S., while Mexico has, to date, rejected the suggestion), it will be important to advocate for a renewed commitment to reserve Canada's public health system from a revised Chapter 11.

A further area of concern arises from the expropriation provisions of Chapter 11 of NAFTA. As outlined above these provisions have been interpreted by some companies as providing not just a protection from takings of property but also as affording protection from what is termed in the United States "regulatory takings." This reading of the text, one which is not necessarily the correct or the intended meaning, would encourage health providers from the United States and Mexico who are allowed to enter the Canadian health sector to insist upon the right to remain there in the face of legislative and regulatory change unless they are expropriated. A possible case in point might be the home care sector where some provinces purchase such services from private Canadian and American service providers. Should a provincial government subsequently decide to take back the service or to restrict it to Canadian providers, it would almost certainly be faced with claims under Chapter 11. Whether these claims would succeed is unlikely in law but there is little doubt that the claims would be made.

For the same reasons, it would be important to ensure that any future Multilateral Trade Negotiations not lead to an outcome with respect to foreign investment protection which would restrain Canadian governments from regulating the health sector as they thought best protected public health in Canada.

Both the GATT 1994 and NAFTA protect the right of governments to maintain monopolies and state enterprises. NAFTA contains more specific provisions requiring these entities to respect rights of other states and to act upon commercial considerations when purchasing the monopoly good or service and to offer non-discriminatory treatment of foreign investor in the monopoly good or service. As yet no link has been made in a trade dispute or in negotiations between there provisions and the health care sector. However two points should be made. First, it is possible that the next round of Multilateral Trade Negotiations will take up the broad issue of trade and competition and that health care will be drawn into the negotiations. Second, health care in Canada is largely a governmental monopoly and the invocation of Chapter 15 of NAFTA by private health care providers in the future cannot be ruled out.

3) What is the impact of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Chapter 17 of NAFTA upon the Canadian Health system?

The TRIPS Agreement and its counterpart Chapter 17 of NAFTA are among the most important and ambitious additions in recent years to international trade law. The TRIPS Agreement stems from the recognition of the great impact that intellectual property (IP) rules, such as patents, trade marks copyright, rules of origin and their more modern forms of protection for trade secrets, integrated circuits, data bases, phonograms and the extension of traditional protections to new life forms, upon international trade. IP rules can promote or seriously frustrate international trade. The absence of protection has been seen by rights holders as profoundly unfair if not confiscatory and the source of unacceptable competition form products produced in violation of existing rights. Action by the GATT/WTO trade law community came as a result of profound dissatisfaction with what was perceived to be slow and inadequate progress in the securing of IP rights and international conventions under the aegis of the World Intellectual Property Organization (WIPO). The result of action by the WTO and under NAFTA has been a very great strengthening of IP protections both substantive and procedural. Some of these results have been highly beneficial while others have had unexpected and for many unsettleling consequences. This appears to be true of the health sector.

The TRIPS Agreement operates both by incorporating by reference obligations existing under a number of traditional and more modern IP conventions as well as requiring MFN and NT in respect of the application of these conventions and more particularly by setting a number of important substantive rules. The result is that (subject to a five year moratorium for developing countries) WTO Members have been required to abide by a minimum set of standards set by the listed conventions as well as to make specific amendments to their IP laws in order to comply with the TRIPS. An example affecting the Canadian health system is the requirement of Article 32 that all patents be protected for 20 years from the date of filing. This provision had an immediate impact on the generic drug industry and the previous governmental policy of encouraging the production of generic drugs. The object is to attract and protect the results of research by drug companies. One effect in Canada is the increase in price of the cost of drugs. Arguably the advantages offset the disadvantages but the Canadian Government had no choice but to go along with this provision.

There are other perhaps less clearly expected effects of the TRIPS Agreement on the Canadian health system such as the claiming of TRIPS and NAFTA by tobacco manufacturers in their resistance to the tobacco advertizing legislation, in particular to defend their resistance to plain packaging of cigarettes.

Several TRIPS articles are of relevance to this discussion. Article 8:1 states:

Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with this agreement."

This formulation, which has yet to be the object of interpretation in a dispute settlement proceeding, seems to set out a broad and generous principle and then to restrict it severely. Thus Article 8 would have to be read with Article 32 and there is no doubt that the latter could not be invoked by Canada to justify protection of the generic drug industry.

Article 27 deals with the vexed concept of patentability. Article 27:2 states:

Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, providing that such exclusion is not made merely because the exploitation is prohibited by their law.

Article 27:3 also allows members to exclude from patentability "diagnostic, therapeutic and surgical methods for the treatment of humans or animals." The same article also provides for the potential exclusion from patentability of "plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes." This is subject to the duty to maintain a system of protection of plant varieties. Furthermore the article provides for the review of this controversial exclusion four years after 1995. These negotiations on the possible patent protection for genetically modified organisms (GMO) took place in Vienna during the week of September 20 1999 and will reconvene in Montréal in January 2000. It is thus clear that the effort to secure full patent protection for GMO's continues unabated and will be the object of further negotiations both outside and within the context of a possible new round of Multilateral Trade Negotiations.

It should be noted that NAFTA Article 1709 mirrors some of the public health and public order exceptions to patentability but provides additional protection to previously unpatented "pharmaceutical or agricultural chemicals." It should also be noted that dispute settlement procedures have been taken against India for failing to meet its limited obligations as a developing country under the WTO, while the EC has taken two proceedings against Canada for alleged failure to fulfil its obligations under the TRIPS Agreement. These proceedings should be terminated about the end of 1999, but appeals may continue into 2000.

Drug prices, genetically modified organisms, plain packaging provisions of a law designed to restrict tobacco advertising, these are three issues where the TRIPS Agreement has already been raised in a debate over public health policy in Canada. It can be confidently predicted that the TRIPS Agreement and NAFTA Chapter 17 will continue to have an impact - often unexpected - on the public health system in Canada.

Finally, the potential link between rights granted under the TRIPS Agreement and the expropriation provisions of Chapter 11 of NAFTA should not be ignored; even more so if the investment protection negotiations are taken up in a new round of Multilateral Trade Negotiations. Producers and patent holders of GMO's in particular will be seeking to enhance the protections for their products by means of both new patent and new investment protections. It is also possible that future regulatory decisions on such issues as GMO's, taken for health reasons, might be characterized as regulatory takings should they restrain the use that producers make of their products in the Canadian market. The tobacco threatened complaints of breach of the TRIPS Agreement should plain packaging be introduced in Canada.

4) The impact of the WTO and NAFTA dispute settlement systems upon the Canadian public health system.

The WTO and the GATT before it have witnessed disputes relating to health standards. Canada was one of the complainants in the Beef - Hormones Case and is the complainant in the current Asbestos Case. A number of environmental decisions have a direct impact upon the applicable principles. Other cases in which Canada has been involved such as the 1996 Split-Run Periodicals Case also involved the effort to reconcile trade values with other values - in that case the protection of cultural industries. This being the situation, one can expect that there may be other cases before the WTO and NAFTA in which the values of health protection may be weighed against those of international trade. It is therefore important to know whether these proceedings are open to consumer as well as producer interests and whether interest groups in Canada are able to make their views known before WTO and NAFTA panels. The answer to date seems to be largely negative, although the situation may be changing.

In principle WTO and NAFTA Chapter 20 proceedings are between governments. Private citizens have no standing and still less capacity to initiate proceedings. It is virtually out of the question to imagine that private citizens could initiate proceedings, however in the face of pressure from private interest groups - both producers and consumers - the governments in the WTO and to a lesser extent in NAFTA have been discussing measures to bring greater transparency to dispute settlement proceedings. It is difficult to justify closed proceedings where public observation is not permitted. This is now the case but could be changed easily. What is more complex is to contemplate public involvement in the dispute itself. But already it is the practice of the Canadian government to consult producer interests in formulating and arguing its position. Why should it not consult consumer and other public interest groups just as widely? A further step would be to allow and encourage the presentation of public interest amicus briefs before the panel. This is in fact possible under the WTO as a result of the Appellate Body's ruling concerning expert reports that had been passed on to the panel by a government in the Shrimp - Turtle Case and which the panel had rejected out of hand. The Appellate Body reversed this on the ground that the panel was free, but not obliged, to seek information from a wide variety of sources. The WTO could thus be encouraged to open dispute settlement proceedings to public interest amicus briefs as a matter of course.

A further issue relates to the public availability of documents and pleadings filed with a panel. These have been considered confidential by most governments, but in the last few years the United States Government has released them routinely to interested groups and the Canadian government has indicated that it may do the same thing in these proceedings as well as in NAFTA Chapter 11 proceedings.

There is thus a broad issue of transparency of dispute settlement proceedings that could be taken up with the Canadian Government and where much could be done to open the proceedings to public scrutiny by individual governments or by the WTO. The transparency of dispute settlement proceedings is likely to become a major issue in the next round of Multilateral Trade Negotiations. If this happens it should be possible for public health groups to influence the debate in order to ensure that their views are more easily heard by panels.

5) What course of action can be recommended to deal with these issues.

The following steps are proposed to ensure that the Canadian public health system does not come into conflict with international trade law. These proposals involve a variety of actions some political, some legal, some involving changes to existing texts, others suggesting the exercise of vigilance during a period of negotiation and change of the rules of international trade law. Central to these proposals is the suggestion that it is important to convince Canadian governments - federal and provincial - and preferably other governments also, that the consumer interest deserves as much attention and protection as the producer interest, and that the time has come to engage in a process of reconciliation of a variety of important social interests with those of international trade.

1. The precautionary principle should be built much more explicitly into the GATT 1994 and NAFTA. High health standards should not be at risk.
2. The SPS and TRIPS Agreements should be modified to ensure that WTO Members have the right to set non-discriminatory health standards that are higher than those prevailing internationally when such standards are motivated by a concern for human health.
3. The exceptions provisions of the GATT Article XX should be strengthened to reinforce recommendations a & b.
4. The exceptions Article XX:b should be amended to include protection of the environment as well as public health. One would reinforce the other.
5. The forthcoming negotiations should not be permitted to erode the right of WTO members and their citizens to adopt non-discriminatory labeling systems.
6. The GATS and NAFTA should not be eroded to weaken the right of Members to maintain monopolies and state enterprises in the public health sector and to continue to reserve this sector to their own nationals.
7. Arguments under Chapter 11 of NAFTA that legislative measures in the health sector are regulatory takings should be strongly resisted by the Government of Canada which should maintain the principle that it and provincial governments have the right to legislate to maintain a comprehensive public health system in this country. Regulation is not expropriation.
8. Any further negotiations on investments should be monitored to ensure that they do not erode the capacity of WTO Members to regulate public health.
9. Any further negotiations over the TRIPS Agreement should be monitored to ensue that changes are not adopted to restrict the rights of WTO Members to protect public health. Further negotiations over the patentability of GMO's should be closely monitored.
10. The dispute settlement procedures under the WTO and NAFTA should be open to public scrutiny in the same manner that domestic judicial proceedings are public and transparent. A democracy like Canada can support no other principle.
11. In WTO and NAFTA dispute settlement proceedings, the consumer and public interests should be presented directly to panels without being filtered by governments or producer interests.