Significant protection for infant health in the Philippines achieved as Court rejects 'restraint of trade' argument - but more needed
Press release 10 October 2007
A long-awaited ruling by the Supreme Court in the Philippines lifts the Temporary Restraining Order on regulations for the marketing of baby foods introduced by the Department of Health, with few changes. The Revised Implementing Rules and Regulations (RIRR), which were challenged by transnational corporations, will now come into force and have the potential to stop much of the aggressive marketing of formula. They also require changes to product labels. An outright ban on formula advertising was rejected by the Court, however, as requiring changes to the primary legislation. The industry's argument that the Regulations were unconstitutional as a 'restraint of trade' was rejected.
While not supporting an outright ban on advertising of milks for infants and children and rejecting a schedule of fines proposed by the Department of Health, the Supreme Court upheld all other provisions against the challenge brought by the industry body, the Pharmaceutical and Health Care Association of the Philippines (which includes Abbott Ross, Gerber, Mead Johnson and Wyeth/SMA).
Specifically the Court ruling (available below) finds in favour of the Department of Health on the following:
Coverage of products – scope including products for older children upheld
Department of Health's right to issue regulations - upheld
Labelling provisions - right to specify warnings and ban claims upheld
Powers with regard to regulating advertising - upheld
Company information for women distributed through the health care system – ban upheld
Independence of research – requirement for ethical clearance upheld
Independence in policy making – ban on company involvement upheld
Donations from companies – prohibition upheld
In public statements welcoming the court's decision both UNICEF Philippines (click here) and WHO Philippines (click here) thanked national and international campaigners for their efforts. WHO said:
"We congratulate the DOH for its commitment to the revised Implementing Rules and Regulations of the Milk Code. We are delighted that amidst the many challenges in the past two years to find resolve on this matter, the DOH, along with local and international breastfeeding advocates, like UNICEF Philippines, Save the Babies Coalition led by Arugaan, the World Alliance for Breastfeeding Action (WABA), IBFAN Network, Baby Milk Action UK, La Leche League, and many others remained faithful in their role to protect Philippine children’s health and welfare."
Of particular note in the ruling are the following:
Obstacle to trade – argument rejected
The industry argued: the RIRR “is unnecessary and oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in restraint of trade” [emphasis as in original]
The Court concluded: “The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public interest must be upheld over business interests.”
Control of advertising
The Court upheld the powers of an Inter-Agency Committee formed by the Minister of Health (Chair), Minister of Trade and Industry, Minster of Justice and Minister of Social Services and Development in pre-approving all advertising and marketing materials for breastmilk substitutes and other products intended for children up to two years of age.
The Committee has the power to: "approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution, exhibition and broadcast of" materials.
As companies currently promote their products as turning children into geniuses and providing immune protection, there is urgent need for these powers to be exercised. UNICEF Philippines release a film earlier in the year exposing industry practices and their impact (click here to view the film).
Warnings on labels and ban on claims
The Court upheld provisions for : "labelling requirements, specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. [Another section] of the RIRR prohibits all health and nutrition claims for products within the scope of the Milk code, such as claims of increased emotional and intellectual abilities of the infant and young child.”
The judgement notes the industry's counsel: "admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet no technology that allows production of powdered infant formula that eliminates all forms of contamination."
It is particularly relevant that the requirements for warnings has been upheld. At the beginning of October a court in Belgium rejected a claim against Nestlé by parents whose child had died as a result of formula contaminated with Enterobacter Sakazakii on the grounds that Nestlé had complied with Belgian law, which did not require a warning be given. See the Campaign Coordinator's blog. Companies in the UK have yet to provide parents with the required information. See press release 10 August 2007.
The ruling gives the Department of Health the power to prohibit Nestlé's claim its formula contains 'brain building blocks'.
Nestlé is not part of the Pharmaceutical and Health Care Association of the Philippines (though it recently bought Gerber), but opposed aspects of the regulations and at the end of 2006 called for the dismissal of the WHO and UNICEF representatives in the Philippines for speaking out against aggressive company marketing. See the Campaign Coordinator's blog.
Baby Milk Action organised and presented a petition of international solidarity with the Philippines. Partners in the International Baby Food Action Network (IBFAN) organised in other countries and the IBFAN partner in the Philippines (ARUGAAN) held a series of demonstrations and events.
Mike Brady, Campaigns and Networking Coordinator at Baby Milk Action, said:
“The many people and organisations around the world who signed our petition of solidarity with the people of the Philippines will welcome the news that the right of the Department of Health to issue the regulations called for by EO51 has been upheld.
"However, I understand the ruling does strike down the outright ban on advertising of breastmilk substitutes pointing instead to improved vetting of these. The proposed outright ban would undoubtedly have done more to protect infant health, providing clarity for all involved. The claims made by companies about formula feeding are shockingly idealizing and we hope that the vetting committee will take a strong line in prohibiting these claims.
“Health campaigners in the Philippines have had to withstand great pressure from the industry in putting infant health first and they are an inspiration to others around the world. It is never easy holding powerful vested interests to account and this partial victory offers great encouragement to us all.”
Mike Brady, Campaigns and Networking Coordinator, Baby Milk Action 07986 736179.
Notes for Editors:
For an analysis of the Supreme Court ruling click here. For the full text click here.
The International Baby Food Action Network (IBFAN) consists of over 200 groups in more than 100 countries. IBFAN groups work for the implementation of the International Code of Marketing of Breastmilk Substitutes and subsequent, relevant Resolutions and monitor company practices against these. Nestlé is found to be the worst of the companies and so the target of an international consumer boycott.
The campaign to defend the Philippines regulations was initiated by ARUGGAN, the Philippines member of IBFAN. The organisation has been conducting imaginative campaigns such as gathering over 1,000 women with decorated umbrellas in Manila (click here for pictures).
Baby Milk Action is a not-for-profit organisation and the UK member of the International Baby Food Action Network (IBFAN). It is funded by membership fees, merchandise sales and donations, along with grants from development organisations and charitable trusts.
For information on baby food marketing malpractice see the codewatch and boycott sections of this website.
Endorsements for the petition of solidarity have been received from over 350 individuals and organisations from around the world including Australia, Brazil, Canada, France, Greece, Italy, Netherlands, New Zealand, Sweden, United States and United Kingdom.
- Baby Milk Action;
- IBFAN Europe (representing 58 groups in 35 countries, including Baby Milk Action);
- INFACT Canada;
- IBFAN Italy;
- The Italian Nestlé Boycott Network;
- NAFIA, the Nordic Work Group for International Breastfeeding Issues;
- Australian Lactation Consultants Association;
- National Childbirth Trust, UK
- The Breastfeeding Network, UK
- Oxfam GB
- Infant Feeding Association of New Zealand;
- Associazione Culturale Pediatri;
- Italy (Paediatric Cultural Association);
- Peoples Health Movement, USA;
- KASAPI HELLAS (Greek organisation of Filipino migrants);
- Sumisibol (US-Philippines teen cultural exchange organisation);
- Philippine Solidarity Group Netherlands;
- Universidade Federal de Ouro Preto (Federal University of Ouro Preto, Brazil);
- Movimento amigos do circuito das äguas Mineiro (Movement of Friends of the Waters of Minas Gerais, Brazil);
- The University Of Sheffield Union Of Students;
- Churchties Vlaardingen-La Granja/Bacolod, Netherlands.
ARUGAAN mobilises a thousand mothers
ARUGGAN has been conducting imaginative campaigns in defence of the new Regulations. See http://www.unicef.org/philippines/news/060901.html This begins: "More than a thousand breastfeeding mothers together with civic organizations unite to protect breastfeeding through a forum and a colorful public display of a thousand slogan umbrellas at the Risen Garden, Quezon City Hall. The slogans, written in English, Filipino and local dialects, embodied the voice and sentiments of the mothers in light of the Supreme Court's recent decision to temporarily suspend the implementation of the Executive Order 51 or the Philippine Milk Code. The code aims to protect mothers and infants through promoting breastfeeding and regulating advertisements of breastmilk substitutes."
For other media coverage see the round-up here.
Click for large versions. Photo credit: ARUGAAN (IBFAN Philippines), 2006.