Failing mothers and babies: authorities unable to stop baby food companies advertising formula - health worker bodies call for government action this week at the European Union 7 March 2005 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 have either not been investigated or have been 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. Public Health Minister, Melanie Johnson MP, has said the government is pursuing changes to an EU directive being revised this week. 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. Health worker bodies including the Royal College of Nurses, Royal College of Midwives, National Childbirth Trust, other members of the Baby Feeding Law Group and the National Heart Forum have written strong letters to the Food Standard Agency, which is collecting comments on the 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, and a ban on the use of health claims. Companies are increasingly claiming formulas boost intelligence and protect against infection, claims which have dubious scientific basis and imply the formulas are equivalent or superior to breastfeeding. 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 money 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?" 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. 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. www.farleyscloserbynature.com)" 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 www.farleycloserbynature.com 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. Many of the members of the public who have contacted Baby Milk Action have mistakenly referred to the advertisement as 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."