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Take action to strengthen EU baby milk regulations

EU Commission fails mothers and babies
Frustrated health worker bodies call for action at the European Union this week to stop baby milk advertising

News peg 11 March 2005

(Click here to download as a pdf file).

The baby food industry is advertising breastmilk substitutes with virtual impunity in the UK as enforcement bodies (Ofcom, Advertising Standards Authority, Trading Standards) point to weaknesses in the law. Complaints about advertising of formula on television and radio and in the press are generally dismissed out of hand as the government has failed to fully implement the International Code of Marketing of Breastmilk Substitutes, nearly 25 years after it was adopted by the World Health Assembly.

Although the government promised action to implement the Code after a United Nations Committee on the Rights of the Child report in 2003, nothing has yet been done to improve marketing controls.

Farley’s advertised its formula as ‘Closer by nature’ in a month-long TV campaign last year and directed parents to a website which suggests the formulas are equivalent to breastmilk. The authorities have taken no action. View the advertisement below.

Public Health Minister, Melanie Johnson MP, has said the government is pursuing changes to an EU directive being revised this week, with a critical expert meeting in Brussels on 11 March. The present draft will do little to strengthen the hand of the enforcement authorities and if approved unchanged may force a confrontation with Brussels if the government is to act unilaterally to protect UK infants and mothers from aggressive marketing. Government Minister, Dr. Stephen Ladyman, assured a meeting of health experts at the House of Commons on 21 February 2005 that he will investigate what steps can be taken when Britain holds the EU presidency later this year and what action can be taken if changes cannot be won at EU level.

Patti Rundall OBE, Baby Milk Action’s Policy Director, said:

“Thousands of NGOs, MEPs and Member states have been calling over the years for the greater protection of breastfeeding and infant health through the implementation of World Health Assembly marketing standards, which ban of all promotion of breastmilk substitutes, as law in Europe. In pushing ahead with proposals that so clearly favour the infant feeding industry the European Commission is ignoring these concerns and the overwhelming scientific evidence that demonstrates the risks of artificial infant feeding and the importance of exclusive breastfeeding. The proposals are also in conflict with the Commission’s own advisors and with other Commission initiatives which are designed to tackle the obesity epidemic that is sweeping across Europe. The World Health Organisation (WHO)’s recently published seven-year study shows that babies exclusively breastfed for six months are healthier and leaner than artificially fed babies.”

Health worker bodies, representing about half a million UK health workers, including the Royal College of Nurses, Royal College of Midwives, Royal College of Paediatrics and Child Health, National Childbirth Trust, other members of the Baby Feeding Law Group and the National Heart Forum have written or endorsed strong letters to the Food Standards Agency and EU Commission on the draft EU Commission Directive on Infant Formulae and Follow-on Formulae (click here to view a selection of letters). Health experts want a total ban on the advertising and promotion of all breastmilk substitutes, feeding bottles and teats, in accordance with the International Code and subsequent World Health Assembly Resolutions. The Code and Resolutions limit companies to providing scientific and factual information to health workers and give health workers responsibility for advising parents on infant and young child feeding. Health experts are also demanding a ban on the use of health claims. Companies are increasingly claiming formulas boost intelligence and protect against infection, claims which have dubious scientific bases and imply the formulas are equivalent or superior to breastfeeding. (Click here to send a letter supporting strengthening of the EU Directive - it will only take 5 minutes).

Monitoring conducted by the Baby Feeding Law Group and launched at the House of Commons on 13 May 2004 prompted widespread support for an Early Day Motion, tabled by Lynne Jones MP, calling for action (click here for launch press release). Dr. Jones wrote to Public Health Minister, Melanie Johnson MP, last week pointing out that enforcement authorities are still unable to act over most of the types of violations taking place in the UK.

Mike Brady, Campaigns and Networking Coordinator at Baby Milk Action, who coordinated the Baby Feeding Law Group's monitoring project, made possible by a grant from the King's Fund (click here for the UK monitoring report), said:

"We will be reporting to the UN Committee on the Rights of the Child on the action the government has taken to implement the Code and enforce it using existing legislation. To date, it is failing infants, mothers and their families miserably. Until the government takes action to hold the companies to account the millions it invests in breastfeeding promotion is largely wasted, because the baby food companies can and do outspend it many times over."

Rosie Dodds, Policy Research Officer at the National Childbirth Trust said:

"Manufacturers should not be able to get away with using misleading or frankly inaccurate information and continuing to promote their products. Our government has consistently supported the Code and subsequent Resolutions internationally, when are mothers and babies in this country going to get the safeguard they are designed to provide?"

Professor David. C.Morley. MD. CBE. Emeritus Professor of Tropical Child Health said:

"I strongly approve of the stand taken by IBFAN. Organisations in the developing world take note of what measures are adopted in Europe and the health of many children in these areas may be impaired."

As a graphic example, the following television sponsorship and advertising campaign for Farley's milks has been reported to all enforcement authorities, but no action is being taken.

For further information contact: Mike Brady on 01223 464420 or 07986 736179, Patti Rundall on 0778652349, or Rosie Dodds on 020 8752 2330.

Notes for Editors

Scientific evidence has consistently demonstrated that artificial feeding increases mortality rates, increases rates for illnesses such as infectious diseases, chronic diseases and auto-immune diseases, offers less than optimal development and growth, lowers cognitive and visual development and increases the risk of obesity. (See The Guardian 5 February 2005 for a report on how WHO's recent research has led to it revising its baby growth charts).

The draft EU Directive permits the promotion of breastmilk substitutes and legitimizes new claims on labels which will mislead parents and undermine breastfeeding. They will permit new products to be marketed with health claims without first being proved safe or of benefit. Baby Milk Action’s position is that if an ingredient has undisputed health benefits proven by independent research, it ought to be a legally required ingredient in all formulas. Health claims are deceptive, intended to create a perceived advantage and to idealize, so undermining breastfeeding.

Case study: Farley's television advertising

You can view the advertisement using the player below (you need quicktime to do so).

The advertisements ran during a 'baby talk' season on Discovery Health Channel in September 2004, sponsored by Farley's.

The only text shown in the advertisement is: "Safeguard. Baby Talk in association with Farley's. Closer by nature."

The voice over says: "I feel like I want to safeguard him all the time. Baby Talk in association with Farley's. Closer by nature."

This example of the advertisement was broadcast at 14:00 on 4 September 2004 immediately after a Farley's-sponsored programme which ended with a mother mixing up formula to give to her new-born infant.

The website offers free samples of breastmilk substitutes to mothers who register and promotes the full product range (image from the site shown below).

Prior to the promotional campaign of which this television advertisement is a part, Farley's re-designed the packaging to make labels for the infant formula and follow-on formulas appear identical appart from the colour, and to make the Farley's name more prominent (for further information on how companies use follow-on formulas to promote their entire range of breastmilk substitutes, click here to download a briefing paper).

Even if the products were distinct, follow-on milks are still breastmilk substitutes and their promotion is prohibited by the International Code. The advertising and free samples are blatant violations.

Ofcom's response

Ofcom has accepted Farley's argument that as the pack shot in the advertisement is for a follow-on formula (the purple pack) rather than an infant formula (the yellow and green), it does not infringe the UK Infant Formula and Follow-on Formula Regulations 1995, which only prohibit the advertising of infant formula to the general public. Baby Milk Action has argued that even by this measure the advertising is illegal as the packaging of the follow-on is virtually identical to the infant formula and there is no other reference to follow-on formula in the advertisement text. Nearly all of the members of the public who have contacted Baby Milk Action have mistakenly referred to the advertisement as being for infant formula.

The National Childbirth Trust found in an on-line survey that 36% of respondents thought they had seen an infant formula advertisement in the preceding 4 weeks (from 7,729 respondents).

The advertising of follow-on milk is prohibited by the Code, but Ofcom cannot act on this basis because the Code and subsequent, relevant Resolutions of the World Health Assembly have not been fully implemented in the UK.

Ofcom referred Baby MIlk Action to the Advertising Standards Authority (ASA) as this has been contracted to regulate broadcast advertising.

The Advertising Standards Authority's response

The ASA claimed it could only judge advertisements on a strict interpretation of legality, despite the fact that the advertising code requires advertisement to be 'legal, decent, honest and truthful.'

While itself claiming the International Code has 'moral authority' the ASA said it does not require advertisements to comply with it. Baby Milk Action argues this is a failure to apply the tests of 'decent, honest and truthful'.

With specific regard to the Farley's advertisement. the ASA referred Baby Milk Action back to Ofcom, saying the ASA does not regulate sponsorship of television programmes. Ofcom said it does not rule on the legality of sponsorship campaigns and said this was an issue for Trading Standards.

Trading Standards' response

The Trading Standards home authority for Farley's has said it was not aware it had responsibility for regulating broadcast advertising and has asked LACORS (Local Authorities Coordinators of Regulatory Services) for guidance.

Trading Standards officers are sometimes active in stopping the all-to-common illegal promotion of infant formula when alerted by members of the public and won a court case against SMA in 2003 over a magazine advertisement where the infant formula brand was not specifically mentioned. Despite this precedent, companies continue to promote their breastmilk substitute range unchallenged if they refer specifically only to the follow-on formula.

Again, Trading Standards Officers find their hands are tied when it comes to most violations of the Code and Resolutions due to the failure of the government to implement these measures. As the Look What They're Doing in the UK monitoring report shows, advertising of breastmilk substitutes, gifts to mothers and healthworkers and contact with mothers are widespread.

Article 11.3 of the International Code states:

"Independently of any other measures taken for implementation of this Code, manufacturers and distributors of products within the scope of this Code should regard themselves as responsible for monitoring their marketing practices according to the principles and aim of this Code, and for taking steps to ensure that their conduct at every level conforms to them."

Judicial review?

Baby Milk Action is investigating seeking a judicial review of the failure of the regulatory authorities to act, but this cannot proceed until it is clear where the buck stops.

Companies promote brestfeeding myths

During National Breastfeeding Awareness Week in May 2004 the Department of Health published the results of a survey entitled: "Myths stop women giving babies the best start in life", highlighting:

"Over a third (34%) of women believe that modern infant formula milks are very similar or the same as breast milk.”

The Farley's website promoted in the television advertisement and other advertising states:

"Farley's are the first to tell you that breast milk is the most nutritious and natural way to feed your baby. We know this because of or involvement and support into some of the world’s leading research into infant nutrition.

"That's why we use the natural goodness of breast milk as a template for creating our most advanced formulas ever. Farley's First Milk and Farley's Second Milk, include many of the special nutrients naturally found in breast milk, such as nucleotides and LCPs to help improve your baby's immune system and maintain good growth."

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