[Editor’s note: This story originally was published by Real Clear Wire.]
By Jerry Rogers
Real Clear Wire
As the Covid-19 pandemic continues to wreak havoc on public health, the International Trade Commission (ITC), a government agency that is supposed to protect the domestic economy against unfair trade, has shown yet again that it is open to abusive cases that jeopardize the health and safety of U.S. consumers. A recent case involving swabs used for Covid-19 testing provides the latest unfortunate example of how the agency has lost its way and is fundamentally failing to protect the public interest.
The ITC is investigating whether to block imports of flocked swabs, a specialty type of swab with plastic bristles on the end used to conduct Covid-19 tests. We all remember how they were in drastically short supply in the early days of the pandemic. In fact, all levels of government, including multiple federal agencies like FEMA and the Department of Health and Human Services, were involved in efforts to find and purchase any available international supplies while concurrently making every effort to ramp up domestic production of testing materials.
But while the U.S. government was doing all it could to ramp up access to these critical swabs, the complainant in the ITC was not. Copan Industries, an Italian swab supplier with a factory in Puerto Rico, filed its complaint with the ITC under a federal law known as Section 337. This law allows the ITC to police unfair trade practices, including patent infringement by foreign imports, ostensibly to protect a domestic US industry. But the ITC is not supposed to ban products if it would harm the public interest. Copan asked the ITC to issue an exclusion order banning the importation of flocked swabs that it claimed were infringing its patents.
As mentioned, there is a safeguard under Section 337 supposed to protect the broader American public: the ITC can only issue this kind of ban when the public interest—specifically including public health and welfare—does not preclude the action. In theory, the ITC’s staff is supposed to help the agency evaluate these important public interest issues; in a select set of cases, the agency even asks staff to participate and file briefs explaining how an exclusion order would affect U.S. interests. But in the limited set of investigations where ITC staff has participated, they have taken a disturbingly lax approach to assessing the public interest.
The swabs case is an especially concerning example. The importers Copan sued have argued that an exclusion order threatens shortages that would hobble public health, particularly during a Covid-19 surge when widespread testing is critical. But ITC’s staff filed a brief brushing aside those public interest arguments as “speculative.” In the staff’s view, “the unpredictable and uncertain future of the ongoing Covid-19 pandemic” meant that excluding these testing swabs was no cause for concern. Unlike other parts of the agency, which regularly provide experts to analyze and assess future conditions in the US economy in detail, the staff would not even try to use common sense to consider the serious future risks inherent in the pandemic.
The staff’s apathy was especially confounding because it acknowledged that the only two domestic manufacturers of these swabs—i.e., those that would need to fill the entire demand if Copan won its exclusion order—did not manufacture at full capacity throughout the pandemic, and could not supply the overwhelming, unmet need for testing supplies. And Copan’s responses to these grave public interest concerns are cold comfort: It argued in a recent brief that Americans can simply use foam swabs if flocked swabs are excluded, even while admitting that flocked swabs are “vastly superior.” And it cynically described the banning of swabs from the United States as a “market opportunity,” despite overwhelming evidence that the remaining suppliers could not possibly fulfill consumer demand.
You don’t need to be a health expert or need a crystal ball to understand that new waves of Covid-19 will continue to come. As we all learn how to live with this pandemic, the last thing we need is an order from a government agency that would significantly impact the supply of tests—especially when the domestic suppliers could not plausibly fill the gap. If there was ever a time when a public interest exemption should be used, surely a case involving COVID-19 tests would fit the bill. But history tells us there is little hope of protecting the broad public interest at the ITC.
Unfortunately, the ITC’s myopic approach to the public interest has been reflected over and over again in 337 decisions, despite the clear statutory requirements. The ITC has been extremely reluctant to deny an exclusion order on the grounds of public interest, to the point that it has done so just three times, the last such action coming more than 35 years ago. And in ITC decisions allowing exclusion orders to take effect, the agency consistently relies on the argument that any detrimental effects of an exclusion order, no matter how devastating, no matter how common sense, are too “speculative” to warrant a different outcome.
Congress can play a key role in ensuring that the ITC takes the public interest seriously. The Advancing America’s Interests Act (AAIA) would prioritize the public interest when exclusion orders are considered, modernize the way the ITC operates, and make it more difficult for bad actors to misuse the ITC solely for their own financial gains.
The AAIA would help get the ITC back on track, and this is critical; we certainly do not need further harmful decisions for our country’s health.
Jerry Rogers is the editor of RealClearHealth and the host of the ‘Jerry Rogers Show’ on WBAL NewsRadio. Follow him on Twitter @JerryRogersShow.
[Editor’s note: This story originally was published by Real Clear Wire.]
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