Legal battle over UK formula marketing regulations
Press release 27 February 2008
Administrative COURT 28 Before MR JUSTICE MITTING
Thursday 28 February, 2008 10.30
CO/230/2008 The Queen on the application of The Infant And Dietetic Foods Association Ltd v SS Health
Judicial Review proceedings in England and Wales on the implementation of European Union (EU) legislation on infant and follow-on formula will take place on 28 and 29 February in Court 28 at the Administrative Court in London.
Baby Milk Action has been allowed by the court to intervene as an 'Interested Party' within the proceedings on behalf of the Baby Feeding Law Group and the Breastfeeding Manifesto Coalition, which bring together 38 health professional and lay organisations, including 5 Royal Colleges and two major unions. The industry, represented by the Infant and Dietetic Food Association (IDFA), indicated it would oppose Baby Milk Action being allowed to make oral submissions in court. We have provided written evidence and submissions. IDFA also opposed Baby Milk Action presenting evidence to a similar hearing in Scotland which began on 19 February and Baby Milk Action was only able to attend as observers. The results of that Hearing are awaited. The case in Northern Ireland has been postponed until the completion of the English Hearing.
As the Food Standards Agency (FSA) explains on its website, new EU legislation on infant formula and follow-on formula for England and Wales was due to come into force on 11 January, but was suspended following IDFA’s application for a judicial review. IDFA is challenging the date by which baby milk companies need to comply with the labelling requirements in the new legislation. In the Scottish Hearing IDFA stressed the practical difficulty of doing so and argued that the labelling rules should not be enforced until the beginning of 2010.
Baby Milk Action coordinates a monitoring project on behalf of the Baby Feeding Law Group (BFLG) which has found the labels used by IDFA members breach both the 1995 Regulations, the EU legislation (introduced in 2006) and the 2007 Regulations. Companies have also been informed by Trading Standards that they must change their labels. There is no practical reason why the companies cannot comply with the 2007 Regulations when they do so. One IDFA member, Nutricia has brought out a new product with a non-compliant label in February 2008.
A Parliamentary campaign was launched by Lynne Jones MP in 2007 calling for the 1995 Regulations to be enforced and our press release about this includes details of the non-compliant claims used to idealise products. See: http://archive.babymilkaction.org/press/press20july07.html
Patti Rundall OBE, Policy Director for Baby Milk Action, said:
“In our view the legal action by the industry has no legal merit, and we agree with the Government’s defence. We see the industry ‘cherry picking’ the bits of the new Regulations that it likes – such as the new claims that are only permitted under the new Regulations which they are challenging – but refusing to comply with the sections which will protect health – the requirement to make a clear distinction between follow-on formula for older babies and infant formula for newborns (note 1).
"The Regulations under discussion are not nearly as strong as those called for by the BFLG, the Government’s Scientific Advisory Committee on Nutrition and LACORS (representing the enforcement authorities). However, the Government has promised a 12-month review with a possible strengthening of the regulations if this is shown to be necessary. We see this Judicial Review – being taken out in three separate courts at extensive cost to the public purse - as undermining this review and delaying compliance with Regulations as long as possible. We hope the evidence we have submitted to the High Court will persuade the Judge of the pressing need for action to protect breastfeeding and babies fed on formula.”
A consultation on Guidance Notes to accompany the Regulations has just finished. Baby Milk Action submitted a report on behalf of BFLG and the Breastfeeding Manifesto Coalition called: “Trying to make the UK’s weak formula law work.” Available at:
Patti Rundall mobile: 07786 523493
Mike Brady: 020 3239 9222
The controls called for by health advocates protect the right of all parents - those who bottlefeed and those who breastfeed - to base their decisions on evidence-based independent information rather than misleading commercial promotion.
Health costs: The 2006 National Institute for Health and Clinical Excellence (NICE) clinical guidelines on ‘Postnatal care: Routine postnatal care of women and their babies’ Reference: CG37 outlines these costs: Cost assumptions on an increase of breastfeeding of 11% is estimated to save approximately £5m per annum (for 3 just three illnesses, otitis media, asthma and gastroenteritis)
Breastfeeding reduces the risk of babies developing many illnesses. The lower incidence of illness is associated with a reduced risk of later childhood disease as well as protecting the mother’s health. It has been suggested that the lower incidence of illness which would be associated with higher breastfeeding rates could also lead to significant cost savings in the treatment of some illnesses, such as gastro-enteritis, otitis media and asthma. Breastfeeding also provides an ideal window of opportunity for obesity prevention, and exclusive breastfeeding protects against rapid weight gain during infancy.
The UK has breastfeeding rates amongst the lowest in the industrialised world. Despite government commitments to improve breastfeeding rates there has been little change, with initiation rates of just 76%, meaning a quarter of infants receive no breastmilk at all. Breastfeeding rates then decline rapidly as the promotion by the manufacturers represented by the Claimants, and exposed in Baby Feeding Law Group monitoring shows undermines breastfeeding and encourages mothers to use formula. In the UK few infants are breastfed at 6 months. Government figures show just 48% are breastfed at 6 weeks
The baby formula market is increasing steadily and has almost doubled since 1995. It is now worth aprox £199 million per year. Marketing practices that breach the provisions of the Code and Resolutions are receiving ever greater resources from the industry.