Wednesday, October 10, 2007

Philippines court ruling: formula health claims banned, warnings on labels required

I have now gone through the ruling from the Supreme Court in the Philippines and posted a press release about this on our website at:

As I wrote yesterday, there is disappointing news that the outright ban on advertising of milks for young children has not been upheld. The schedule of fines proposed by the Department of Health has also been rejected.

But everything else in the Revised Implementing Rules and Regulations (RIRR) stands!

The press release and a document analysing the ruling gives full details.

Here I want to flag up some of the protection that has been won regarding labelling. On Friday I wrote about the court case in Belgium where a couple lost their legal action agasint Nestlé over contaminated formula. Nestlé does not warn on its labels that powdered infant formula is not sterile and may contain harmful bacteria and how to reduce the risks. But the Judge found for Nestlé as it complied with the legislation.

Well, the regulations that now come into force in the Philippines with the lifting of the Temporary Restraining Order do require warnings on labels. The industry was trying to strike this down. It doesn't want to warn people of the risks, no doubt fearing it may effect sales.

The Supreme Court threw the objections out. The ruling states:

---Extract begins
The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being present in infant formula and other related products when these are prepared and used inappropriately.

[The industry’s] Petitioner’s counsel has 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.

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including the possibility of contamination with pathogenic micororganisms is in accordance with Section 5(b) of the Milk Code.

---extract ends

So there you have it. The industry admitted formula is prone to contamination, but challenged the requirement that warn people!

Now they will have to. At least in the Philippines. We, and our partners in the Baby Feeding Law Group, are calling for the UK Government to take similar action as set out in the report Protecting breastfeeding. Protecting infants fed on formula.

The Supreme Court also rejected the industry challenge to the rules on health claims. The ruling states:

---Extract begins
[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.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code.
---extract ends

If you have visited this blog before you may well be familiar with Nestlé's claim in the Philippines that its formula contains 'brain building blocks' which, as well as being idealzing, is not substantiated by the science. See, for example:

The UK authorities embarked on a crackdown on illegal claims here at the turn of the year, which was picked up in the media in the Philippines and, who knows, may have helped set an example for the authorities there. We need to maximise the protection for infant health and parents by learning from each other.

While the Supreme Court rejected the outright ban on advertising in the Philippines, this was on the technical grounds that the Department of Health had over stretched its right to 'control' advertising. As the press release explains, an Inter-Agency Committee will have the power to pre-approve all advertising and marketing materials and require changes or disapprove anything that is not scientific and factual or implies formula feeding is equivalent or superior to breastfeeding. Properly exercised this will stop the type of promotion exposed in the UNICEF film, Formula for Disaster.

However, we know from experience in the UK that regulatory authorities are not always effective and we advocate an outright ban on company promotion in the UK as well as in the Philippines. In both places we call on legislators to strengthen laws.

Given the power of the baby food industry it is a tough job and it is not always possible to achieve all goals in one go. As the examples of the gains set out above show, the authorities now have strengthened tools, even if not as sharp as we might like. The campaigning must continue, including monitoring to see what does and does not change in the coming weeks and months.

As Senator Pia S. Cayetano, Chair of the Health Committee said today: "From the judiciary, the battlefront has just shifted to the legislature. Admittedly, the process may take time and could be drawn-out. But this would be the proper course of action, as the Supreme Court itself had recommended in its decision." See:
Battle over infant formula ad ban now shifts to Congress

Many thanks once again for your support in the phase of the campaign for the Philippines that has just ended.

We hope you are as tireless as we and our partners try to be.

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