The World Health Organization is developing a pandemic treaty that it contends will help prevent pandemics and increase preparedness to save lives, reduce disease burden and protect livelihoods. The WHO said it’s doing this because the international community’s response to COVID-19 was a “catastrophic failure.” 

However, a bipartisan group of senators is telling the Biden administration it is concerned the treaty could undermine intellectual property laws and, in turn, disincentivize research and development into vaccines. 

A draft of the treaty reveals it could require countries to provide “real-time access by WHO to 20% of the production of safe, efficacious and effective pandemic-related products, including diagnostics, vaccines, personal protective equipment and therapeutics, to enable equitable distribution…” 

“This means that if a company successfully develops a pandemic-related product, that company will not be able to realize any return on investment,” Sens. Chris Coons, D-Del., Mazie Hirono, D-Hawaii, Thom Tillis, R-N.C., and James Lankford, R-Okla., wrote in a letter to National Security Advisor Jake Sullivan.   

“Alarmingly, such a provision may lead companies to refrain altogether from developing new pandemic-related products and instead choose to invest in other areas that do not involve the same legal risks,” the letter says. “If such a policy had been in place ahead of the COVID-19 pandemic, it could have prevented innovations critical to ending the global public health emergency, such as mRNA vaccines or Paxlovid.”

A public comment period on these treaty provisions closed on Jan. 22. The Health and Human Services Department asked the public to specifically address incentives, research and collaboration when providing responses.

The senators are asking the Biden administration to seek significantly more public feedback through hearings and studies. 

“The draft agreement under consideration, however, contains many provisions that would undercut — if not destroy — the very aspects of our innovation ecosystem that just recently produced such positive results,” the senators wrote.

The WHO wants to finalize the draft of the treaty so it can be formally debated and considered at the World Health Assembly, which begins May 27.