By Ana Santos Rutschman
The COVID-19 pandemic has brought into sharp relief longstanding equity problems surrounding the allocation of newly developed vaccines against emerging pathogens.
In my upcoming book, Vaccines as Technology: Innovation, Barriers, and the Public Health, I examine these problems and look into possible solutions to incrementally build more equitable frameworks of access to vaccines targeting emerging pathogens. These solutions focus on ensuring that vaccines are made available affordably to the populations that need them the most according to public health parameters.
While the expressions vaccine nationalism and vaccine colonialism permeated mainstream discourses during the COVID-19 pandemic, they reference allocative imbalances and distributive justice deficits observable throughout the twentieth and early twenty-first centuries — from the rollout of the smallpox and polio vaccines to that of H1N1 vaccines during the 2009 swine flu pandemic.
The causes of this deeply rooted inequity are legion. They include the production of vaccines largely according to market-driven models of R&D rather than public health needs and preparedness principles; the limitations of transnational modes of governance in the public health space; and the absence of mechanisms of international and domestic solidarity that may compensate the skewed allocation of critically needed health goods. The book surveys different options to address these issues, both in the United States and at the international level.
A first set of solutions draws on the roster of push and pull mechanisms that theorists of innovation policy often call non-IP incentives to research and development (R&D). These mechanisms include grants, prizes, and tax credits.
So far, these mechanisms have been predominantly used as carrots to attract funding for work on vaccines (or whichever health good an institution may be interested in). In my work, I suggest that, in addition to increasing the amounts made available for vaccine-related research, policymakers should be more deliberate in tying at least a portion of this funding to the acceptance of contractual frameworks mandating that the resulting vaccines be commercialized at affordable prices.
Another important piece in this puzzle is the role of the legal infrastructure that can be used to facilitate the development and transfer of vaccine technology. Consider, for example, patent pools — contractual arrangements through which a plurality of patent holders agree to license one or more of their patents amongst themselves, and possibly to parties outside the pool.
During COVID-19, Costa Rica asked the World Health Organization to oversee the swift formation of a patent pool focusing on technology needed for the response to COVID-19. Costa Rica specifically framed the need for a pandemic patent pool as a way to attract rightsholders interested in making their products available at affordable prices and on an equitable basis. The proposal was supported by several other countries, and resulted in the formation of the COVID-19 Technology Access Pool (C-TAP) in May 2020. However, C-TAP failed to attract any meaningful technology commitments.
To avoid replicating this outcome, the book makes the case for an approach based on technological specificity: it proposes the creation of a vaccine-dedicated pool, formed preferably outside the context of a pandemic or large-scale epidemic. Importantly, the book also explains that participation in the pool can be encouraged through non-IP incentives. For example, policy makers using grants or prizes to fund vaccine R&D may reserve some of those grants and prizes for players willing to pool the resulting technology. And the same contracts requiring participation in the pool should include explicit affordability and equitable distribution commitments from awardees.
In addition to contractual frameworks, there is also an institutional dimension to the puzzle of vaccine equity. A growing number of vaccine-dedicated partnerships play an increasingly important role in funding vaccine development and procurement. These structures, operating as public-private partnerships, include Gavi, which has long focused on vaccine procurement for the Global South; CEPI, which was created in the wake of the 2014–16 Ebola outbreak to help fund vaccine-related R&D; and COVAX, a COVID-19 pandemic-induced partnership that attempts to procure vaccines for countries in both the Global South and the Global North. In previous work, I have highlighted some of the shortcomings of these partnerships, joining the ongoing criticism of the strategy behind COVAX, which resulted in a largely under-funded structure — and one that was designed in a way that treats wealthier countries in more favorable ways than lower-income countries.
Yet, I remain a firm believer in the relevance and likely increasing strategic importance of these vaccine-dedicated partnerships. They are better equipped to cater to the idiosyncrasies of vaccine markets than general-purpose structures, especially if they have some degree of permanency, as is the case with Gavi and CEPI — and maybe, someday, COVAX. These types of technology-specific partnerships — and, in particular, those funding vaccine R&D — should make more deliberate use of policies designed to increase affordability and more equitable distribution of vaccines. For instance, they can tie all or part of the funding they provide to acceptance of contractual provisions mandating that awardees commit at least a set percentage of their supply to distribution based on public health needs — such as the places shouldering the highest burden of disease during a pandemic or epidemic. Obtaining these kinds of commitments ahead of a large-scale public health crisis would at least reduce the impact of vaccine supply that is bound to be allocated through bilateral agreements with governments in wealthier countries.
The proposals outlined above are meant to spur incremental change in a multi-layered political economy. They might not be particularly enticing to larger firms, for whom vaccines — and particularly those needed in response to pandemics and epidemics — are typically financially unappealing. But they might attract the attention of medium-sized firms that seek or are able to enter the vaccine R&D space and hope for a possible breakthrough, should a pandemic or epidemic occur. Importantly, their collective goal is to attach contractually enforceable obligations to the frameworks that affect the ways in which vaccines are ultimately made available to populations in need.
There are, of course, other ways to pursue goals of vaccine equity. For instance, there are ongoing discussions about the possibility of a pandemic treaty, which could establish a framework for transnational allocation of vaccines in situations of product scarcity. Given the magnitude of inequitable allocation of vaccines against emerging pathogens — a Duke study calculates that many populations in lower-income countries might have to wait until 2024 to be vaccinated against COVID-19 — I argue that it is high time that we consider the mix-and-match approaches outlined above alongside other possible solutions.
Ana Santos Rutschman is an Assistant Professor of Law at Saint Louis University School of Law.
