Thursday, December 13, 2007

Do not fear the European Commission

Bear with me, this blog is on an issue of critical importance, though for some very tedious. This information could determine whether the UK continues to be highlighted as particularly lax in regulating the baby food industry, or takes the action its own advisers and a broad coalition of health worker and mother support groups are calling for.

Only the baby food industry is opposing stronger Infant Formula and Follow-on Formula Regulations. But it is getting its way? It is not for economic reasons. The UK economy stands to save far more money by protecting babies and parents from aggressive marketing than it gains in tax on sales of formula.

It is not because of 'freedom of choice', because the regulations health advocates want do not ban the sale of formula. On the contrary they aim to ensure that parents who use formula receive accurate independent information about the different types on the market and clear instructions on how to prepare it. The promotional materials from the companies do not provide this.

What it seems to come down to is the government is scared of the European Commission. While the Department of Health in the Philippines battled for a year in the Supreme Court to successfully defend its regulations from industry attack, I have the impression the UK government is worried it may have its knuckles rapped for going further than the Commission wants it to go. And remember the European Union is a trading block so has an in-built bias to increase sales of products such as formula.

UK health worker bodies and mother support groups, along with development agencies such as Save the Children and UNICEF and trade unions such as UNISON and UNITE are together in saying the government will have their support if it implements the World Health Assembly marketing requirements, as many other countries have done. Countries such as Italy have drafted proposals bringing in some of the measures the UK fears will put it in the Commission's bad books.

But, at present, there is a lack of political leadership in the UK. So let us take a closer look to see if the apparent fear is justified.

It comes down to whether the EU Directive that Members States have to implement is a minimum standard or a maximum standard. Do Member States have to do everything in the Directive and no more - a process called total harmonisation - or do they have flexibility to do what they feel is best as long as it fulfils the aim of the Directive and puts in place a common framework, where relevant - so-called partial harmonisation.

The official line from the Commission is that some things are set. For example, there are minimum composition standards for formula. This is a good thing - we campaigned to make them as good as possible. At the same time the Commission wanted to allow optional ingredients to be added such as probiotics, which companies are clamouring to be able to make health claims about as a marketing tool, while many Member States were more cautious and want to see a scientific case made first and any beneficial and safe ingredients to be included in all formulas. As the UK Government's Scientific Advisory Committee (SACN) on Nutrition said in its submission to the consultation:

---extract begins
We find the case for labelling infant formula or follow on formula with health or nutrition claims entirely unsupportable. If an ingredient is unequivocally beneficial as demonstrated by independent review of scientific data it would be unethical to withhold it for commercial reasons. Rather it should be made a required ingredient of infant formula in order to reduce existing risks associated with artificial feeding. To do otherwise is not in the best interests of children, and fails to recognise the crucial distinction between these products and other foods.
---extract ends

While the government has rejected the advice of SACN, the fact that Member States can choose whether to allow optional ingredients shows it is partial harmonisation.

The Commission says at the end of the day it would come down to a ruling by the European Court of Justice, should there be a challenge to a government line. Is a challenge likely? I don't think so, and if it arose then I would like to see our government stand up for the rights of its citizens as the government of the Philippines did this year.

Other countries within Europe are also standing up to the Commission in other areas. For example, the German Government recently achieved a significant victory at the European Court of Justice over regulations for foreign agencies posting workers to work in Germany. The German authorities wanted contracts and certain other documents regarding the pay and conditions of the workers to be available in the German language in Germany. The Commission challenged this as an infringement of Directive 96/71/EC, arguing that co-operation between Member States meant such measures were superfluous. The Court dismissed most of the Commission's challenge in July, in what John Monks, General Secretary of the European Trade Union Confederation, heralded as a common-sense ruling for effective monitoring and worker protection. See:

Another case cited by John Monks as a common-sense ruling by the Court relates to compulsory retirement agreements in Spain. A challenge came to the court suggesting this was age discrimination. The Court ruled that though age was undoubtedly an issue, workplace agreements for compulsory retirement at the age set by national legislation when retirement benefits became available were permissible. It concluded that Directives on age discrimination were not being infringed stating:

---extract begins
It is, therefore, for the competent authorities of the Member States to find the right balance between the different interests involved. However, it is important to ensure that the national measures laid down in that context do not go beyond what is appropriate and necessary to achieve the aim pursued by the Member State concerned.
---extract ends

This is a key judgement and should reassure UK politicians if they feel held back by the risk of an appearance at the European Court of Justice. Implementing internationally-agreed measures for the marketing of breastmilk substitutes, as has been done in many other countries, cannot be portrayed as 'unbalanced'. It is proportionate to the need to protect infant health and mothers' rights. Everyone from the World Health Assembly and the UN Committee on the Rights of the Child to the government's own advisers, enforcement authorities and health advocates are calling for such action.

The aim of implementing the International Code of Marketing of Breastmilk Substitutes and subsequent, relevant Resolutions of the World Health Assembly is entirely consistent with the of the Directive itself and so cannot be deemed to go beyond it. The Directive states:

---Directive 2006/141/EC extract
(27) In an effort to provide better protection for the health of infants, the rules of composition, labelling and advertising laid down in this Directive should be in conformity with the principles and the aims of the International Code of Marketing of Breast-milk Substitutes adopted by the 34th World Health Assembly, bearing in mind the particular legal and factual situations existing in the Community.

(28) Given the important role which information on infant feeding plays in choosing, by pregnant women and mothers of infants, the type of nourishment provided to their children, it is necessary for Member States to take appropriate measures in order that this information ensures an adequate use of the products in question and is not counter to the promotion of breast feeding.

---extract ends

So in the unlikely event of a challenge, the government has a very strong case for defending implementing the Code and Resolutions. It has the support of all relevant organisations in the UK, except the baby food industry. And the European Court of Justice has shown it does not bow to demands from the Commission, but can take a common-sense approach.

Why then does the government not act? Exactly. There is no good reason, so let us see if can persuade them before it is too late.

There is still time. You can send a message to the Ministers responsible using the simple form you will find at:

The message has been updated to reflect the lack of response of the government to the consultation, so please do send this message, even if you have sent one before.

No comments: