Thursday, February 21, 2008

House of Lords debate - government committed to 12-month review of formula Regulations

Yesterday I wrote about the House of Lords debate on the Infant Formula and Follow-on Formula Regulations 2007. Baroness Finlay called for stronger regulations, but withdrew her move for weak version presented by the government to be annulled as the government indicated they would be strengthened if a 12-month review found this to be necessary.

Baroness Harnham, for the Conservatives, supported the annulment or delay of the Regulations, in line with the position of party leader, David Cameron MP, who has called for the Regulations to be scrapped. She questioned whether parents who use formula should be warned that powdered infant formula is not sterile and instructions on how to reduce the risks of possible contamination with harmful bacteria.

As I wrote on Monday, the Conservative tactic is ill-informed because if the 2007 Regulations fall, the baby food industry will immediately be criminalised as labels on the market breach the 1995 version of the Regulations, which would remain in force. We have long called for companies to be prosecuted under these and it will become more pressing to use the Regulations if the updated ones go back to the drawing board. See:

Though we were disappointed that the recommendations of the Baby Feeding Law Group and the government's own advisors were rejected in drafting the 2007 Regulations in favour of the industry plea to do the minimum possible, we prefer the review process to begin immediately. It was, therefore, very welcome that the government again voiced strong commitment to this in the House of Lords debate and for the International Code of Marketing of Breastmilk Substitutes.

Here is an extract from the Hansard record of the debate. See:

---extract begins
Baroness Thornton:[For the government] I recognise that several NGOs, including the Baby Milk Action Group, the National Childbirth Trust, the Breastfeeding Manifesto Coalition and others are calling for further regulations to ban all advertising and promotion of breastmilk substitutes, including follow-on formula, and want the Government to implement the entire WHO code on the marketing of breastmilk substitutes. The Government are determined to take tough action to stamp out marketing, promotion and advertising practices which undermine breastfeeding directly and indirectly. Indeed, this is evidenced by the Government’s Choosing Health White Paper, which made a commitment to review the relevant provisions of the Infant Formula and Follow-on Formula Regulations 1995, with a view further to restrict the promotion of infant formula. I hope that the noble Baroness, Lady Barker, will accept this reassurance.

I assure noble Lords that the Government’s new controls are as tight as possible within the constraints of the EU law and have been specifically drafted to address loopholes in the 1995 regulations which allow manufacturers to market and promote their products in ways that do not enable UK consumers clearly to differentiate between infant formula and follow-on formula when purchasing products, and which bypasses restrictions on advertising of infant formula by labelling and advertising follow-on formula in such a way that it is often difficult to distinguish the practice from advertising for infant formula. This is unacceptable and the Government are determined to take tough action to remove this confusion. In this way the new directive and regulations provide for increased consumer protection compared with the previous infant formula legislation.

The key changes include: updated rules on the composition of all types of formula; tighter rules on the labelling of all types of formula; tighter restrictions relating to the marketing and promotion of infant formula; requirements for companies to label, present and advertise infant formula and follow-on formula in such a way as to avoid confusion between them in the mind of the consumer; a requirement for companies to make clear on the product packaging that follow-on formula should be used only by infants from six months of age; restrictions on the number of health and nutrition claims that can be used on infant formula; and the introduction of national notification requirements, which allow European Union countries to monitor the marketing of new infant formula more effectively.

The Government will also be introducing robust guidance for industry and enforcement authorities on how correctly to apply the new law. The guidance will make it very clear that advertising practice for follow-on formula must change and formula for older babies must be clearly labelled and advertised such that it is clearly distinguishable from infant formula. This is necessary because advertisements for follow-on formula, which may include presentation of the packaged and labelled product, have the potential to be seen as adverts for infant formula, a practice which is specifically prohibited so as not to undermine government advice that babies should be exclusively breastfed for the first six months.

These tough new measures will give effect to the principles and aims of the WHO code on the marketing of breastmilk substitutes and will protect breastfeeding by substantially restricting advertising, requiring proper labelling and prohibiting the donation of any informational or educational material by formula manufacturers unless it has been specifically authorised by the Government, prohibiting the advertising of infant formula to the public, and prohibiting any follow-on formula advertising which promotes infant formula. I hope that this will go some way to meeting the noble Baroness’s points.

In addition, the Government have given a further and key commitment to provide an independently chaired review of the new controls. That point has been recognised by other noble Lords. If after time it is found that the new arrangements are not working effectively or delivering the necessary level of protection for babies, because the arrangements have been circumvented or because new methods of promotion emerge, the Government will respond proportionately and consider taking further legislative action.

Lord Avebury:My Lords, how can the Government take further legislative action when the noble Baroness has told us that the regulations are as tightly drawn as they possibly could have been under the directive?

Baroness Thornton:My Lords, the point is that the independent review after the controls are in place will allow us to assess whether or not this is working. If it is not working, as my honourable friend in another place said, the Government are determined to take action and to make this work. We are confident that this package is effective, proportionate and evidence-based, and, together with the independently chaired review, is a big step forwards in the protection of mothers and babies. As the noble Baroness stated, the Infant and Dietetic Foods Association is challenging the new regulations in England and Wales, which we wanted to come into force on 11 January 2008.


Clearly, we are disappointed by the IDFA’s decision to bring proceedings and the Government are fighting the case because they consider that they have implemented the transitional provisions in line with the obligations of the directive. The Government’s intention and policy objective were clear before the new directive was published in 2006. The industry has been aware since that time of the labelling changes that it will be required to make. The Government are committed to those regulations and will ensure that they apply as soon as possible, taking into account the outcome of the court proceedings.

In conclusion, I reiterate that the Government’s priority is to ensure that infant formula and follow-on formula are clearly labelled so that parents and carers who wish to use those products can do so correctly. I urge the noble Baroness to withdraw her Motion.

---extract ends

Baroness Finlay replied, in part: "I am also glad to hear that there will be an independent review and that the Government intend to take action on it and the background to the timeframe for the introduction of the current regulations, which are currently subject to judicial review. With regard to that background and to the very helpful comments from the Minister, I beg leave to withdraw the Motion."

So the only obstacles to the review process taking place and resulting in stronger regulations if the companies do not clean up their act are the Conservative party call for them to be annulled and the industry's legal challenge.

Baby Milk Action has been attending the court case in Edinburgh and has submitted evidence to the forthcoming High Court case in London. We will say more about what is happening in these cases when it is possible to do so.

We are still in desperate need of financial help for our role in the legal battles and for gathering data for the review process. If you are able to make a contribution, however small, this would be much appreciated. See:

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