Significant protection for infant health in the Philippines achieved as Court rejects 'restraint of trade' argument - but more needed

Press release 10 October 2007

See on-line version for links, images and supporting documents at:
 http://www.babymilkaction.org/press/press10oct07.html

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 on line) found 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 its statement welcoming the Court's decision, WHO Philippines said:

"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 Breastfeeding Action Group (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."

[Our emphasis, and thanks to everyone who signed our petition of solidarity with the Philippines]

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 released a film earlier in the year exposing industry practices and their impact (view the film via the on-line version).

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 (further details on line).

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 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.”

Contact

Mike Brady, Campaigns and Networking Coordinator, Baby Milk Action 07986 736179.

See on-line version for links, images and supporting documents at:
 http://www.babymilkaction.org/press/press10oct07.html

Also see my blog entry:
 http://boycottnestle.blogspot.com/2007/10/philippines-health-claims-ban.html