“We could end up in jail” if we disclose details of the former government’s contract with Pfizer, says the country’s Health Minister.
The recently elected President of Costa Rica Rodrigo Chaves last week announced the end of compulsory vaccination against COVID-19. Speaking alongside his health minister, Joselyn Chacón, Chaves said that not only are the vaccines no longer mandatory; any action taken against anyone who does not want to get vaccinated will be against the law. Chaves also called for unvaccinated workers who had lost their jobs to be reinstated and announced the launch of an investigation into the vaccine contracts the previous government signed with Pfizer-BioNTech.
Costa Rica was the first country in Central America to implement a COVID-19 vaccine mandate. That was in September 2021, when Chaves’ predecessor, Carlos Alvarado Quesada, was holding the reins. In November 2021, Costa Rica became the first country in the world to mandate Covid-19 vaccines for minors, with all children 5 and older required to get vaccinated, barring medical exemptions. It was a highly controversial decision that represented a line in the sand for many parents.
The mandate meant that a child could get vaccinated even if their parents did not consent, said Roman Macaya Hayes, then-director of Costa Rica’s Social Security Institute. Macaya Hayes is now under investigation by the Deputy Prosecutor’s Office of the 1st Judicial Circuit of San José for alleged prevarication. So too is Daniel Salas, the former Minister of Health who now works in the US with the Pan American Health Organization (PAHO), as well as six members of the National Vaccination and Epidemiology Commission (CNVE).
Two of the CNVE members purportedly participated in decisions regarding COVID-19 immunization, despite the fact their appointments to the CNVE had expired. That alone is enough to invalidate the acts agreed upon by the CNVE, at least in the judgement of President Chaves. His government will also investigate the former government’s massive purchase of COVID-19 vaccines in April 2022, even as the vaccination campaign was losing momentum.
“We are going to investigate why it is that they bought so many vaccines when the data available showed the market was already saturated,” Chaves said in his weekly press conference last week. “Millions of dollars’ worth of vaccines were purchased at a time that the vaccination rate was already waning. I don’t know how much money was squandered on vaccines that are not going to be used and are going to expire”.
Chacón said she could not divulge any of the details of the Pfizer contract due to secrecy clauses in the contract. Chacón also alleged that Beatriz Solís Worsfold, the daughter of former President of Costa Rica Luis Guillermo Solís (2014-18), who has been a lawyer for Pfizer since 2018, was instrumental in draw up the contract: “If we release details of the contract we could end up in jail because we would be violating a contract drawn up by the daughter of former president Luis Guillermo Solís.”
Pfizer has denied the allegations. In remarks to Costa Rican fact-checking website Doble Check, the company said that Solís Worsfold’s responsibilities “do not include participation in the negotiation processes with the government of Costa Rica or with any other government for the purchase of the Pfizer-BioNTech vaccine against COVID-19.” Pfizer added that the negotiation processes for the distribution of COVID-19 vaccines are conducted by the company’s local, regional and global teams, and that these processes have been similar throughout the region and on a global scale.
Those processes have also been highly controversial wherever they have been used, including throughout Latin America, as I noted in a previous article (Pfizer’s Sordid Vaccine Sales Practices in Latin America Could Be a Big Boon for China and Russia):
It is a time-honoured custom of business that manufacturers provide certain basic guarantees to prospective buyers about their product’s quality and safety. But U.S. pharma giant Pfizer wants to turn this on its head as it sells its experimental mRNA vaccine to desperate governments around the world. For Pfizer, it’s the buyer — not the seller — that should provide all of the guarantees. And that includes countries putting up sovereign assets, such as federal bank reserves, embassy buildings military bases and even glaciers, as insurance against the cost of any future legal cases involving Pfizer BioNTech’s vaccine, reports the Bureau of International Journalism (TBIJ):
Officials from Argentina and the other Latin American country, which cannot be named as it has signed a confidentiality agreement with Pfizer, said the company’s negotiators demanded additional indemnity against any civil claims citizens might file if they experienced adverse effects after being inoculated. In Argentina and Brazil, Pfizer asked for sovereign assets to be put up as collateral for any future legal costs.
One official who was present in the unnamed country’s negotiations described Pfizer’s demands as “high-level bullying” and said the government felt like it was being “held to ransom” in order to access life-saving vaccines.
Campaigners are already warning of a “vaccine apartheid” in which rich Western countries may be inoculated years before poorer regions. Now, legal experts have raised concerns that Pfizer’s demands amount to an abuse of power.
According to Professor Lawrence Gostin, director of the World Health Organization’s Collaborating Center on National and Global Health Law, what Pfizer appears to want is total immunity from all forms of liability:
[T]he company would not be held liable for rare adverse effects or for its own acts of negligence, fraud or malice. This includes those linked to company practices – say, if Pfizer sent the wrong vaccine or made errors during manufacturing.
Some liability protection is warranted, but certainly not for fraud, gross negligence, mismanagement, failure to follow good manufacturing practices. Companies have no right to ask for indemnity for these things.
That article was published in March 2021, in the early days of the vaccine roll out when governments of countries both large and small were desperate to get their hands on enough vaccines. Now, many of those governments have vast stockpiles of unused vaccines. In addition, more information has leaked out about Pfizer’s vaccine contracts, allowing us to piece together an even more sordid picture of the company’s negotiating practices and demands. In October 2021, Public Citizen released a report revealing that Pfizer:
- Reserves the Right to Silence Governments. After reviewing a leaked copy of Brazil’s contract with Pfizer, Public Citizen was able to report that the contract included an additional term it had not seen in other Latin American agreements. The Brazilian government is essentially prohibited from making “any public announcement concerning the existence, subject matter or terms of [the] Agreement” or commenting on its relationship with Pfizer without the prior written consent of the company. Pfizer gained the power to silence Brazil. In most other contracts the non-disclosure agreement applies to both parties.
- Controls donations. The Brazilian government is also prohibited from accepting donations of Pfizer vaccines from other countries without Pfizer’s prior authorization or from donating, distributing, exporting, or otherwise transporting the vaccine outside Brazil — again, without Pfizer’s permission. Contravention of this clause would be considered an “uncurable material breach” of Brazil’s agreement with Pfizer, allowing the US pharmaceutical to immediately terminate the agreement. Upon termination, Brazil would be required to pay the full price for any remaining contracted doses.
- Secures “IP Waivers” for Itself. Despite Pfizer’s strident defence of intellectual property — at least when said property is its own — the vaccine contracts its has signed with governments shift responsibility for any intellectual property infringement that Pfizer might commit to the government purchasers. As such, the contracts affect allow Pfizer to use anyone’s intellectual property it pleases — largely without consequence.
- Can take any and all disputes to arbitration. No great surprise here. Public Citizen cites the UK as an example. In the event of a contractual dispute between Downing Street and Pfizer, a secret panel — not a national court — is empowered to make the final decision. The arbitration is conducted under the Rules of Arbitration of the International Chamber of Commerce (ICC). Both parties are required to keep everything secret. The Albania draft contract and Brazil, Chile, Colombia, Dominican Republic and Peru agreements require the governments to go even further, with contractual disputes subject to ICC arbitration applying New York law.
- Can seize state assets. In the case of Brazil, Chile and Colombia, the government “expressly and irrevocably waives any right of immunity which either it or its assets may have or acquire in the future” to enforce any arbitration award (emphasis added). For Brazil, Chile, Colombia, and the Dominican Republic, this includes “immunity against precautionary seizure of any of its assets.”
- Calls the shots on key decisions. Colombia’s contract with Pfizer includes a gem of a clause stipulating that the Colombian government must “demonstrate, in a manner satisfactory to Suppliers, that Suppliers and their affiliates will have adequate protection, as determined in Suppliers’ sole discretion” (emphasis added by Public Citizen) from liability claims. In other words, if suppliers fail to supply the goods requested by the time agreed in the contract, Colombia’s government has agreed that it will have no means of recourse.
Given the contractual conditions outlined above, it is hard to imagine any country in Latin America — let alone one as small as Costa Rica — managing to overturn or override any of the clauses in their contract with Pfizer. As Public Citizen notes at the end of its report, “Pfizer’s ability to control key decisions reflects the power imbalance in vaccine negotiations. Under the vast majority of contracts, Pfizer’s interests come first.”
Indeed, just a month ago a judge in Uruguay presiding over a case brought by parents opposing the vaccination of children over the age of five demanded that the Government present all documentation on the terms and conditions of its contract for Pfizer BioNTech’s COVID-19 vaccines as well as the full biochemical composition of the vaccine. When the government refused to comply, the judge suspended the vaccination of all children under 13. The government quickly appealed and within a couple of weeks the court of appeal overturned the judge’s decision.
Back in Costa Rica, the Chaves government has a fight on its hands to overturn the vaccine mandate. The national social security fund (CRSS) insists that the vaccine mandates implemented by the previous government remain in force, arguing that the Chaves government’s decree overturning the mandates is merely “a ‘petition’, a ‘request’ or a ‘plea’, that does not imply an obligation or imperative to do so, on the part of the body that holds said competence.”
As such, public sector employees fired for refusing the vaccine will not be reinstated in their positions. Even more disturbing is a report from the Costa Rican daily La Nación that suggests that Costa Rica’s National Vaccination Commission, while attached to Costa Rica’s Ministry of Health, has an “instrumental legal personality.” In other words, it has independent decision making powers. And those powers seemingly supersede the powers of the country’s democratically elected president.