Understanding the Milk Code

I have been receiving several queries from various groups in connection with the sponsorship of bottle companies of their events and activities. I decided to put my JD and LLM to use and write this discussion about the Milk Code and its effects. However, what is wonderful about the law is that it is subject to various interpretations and each litigant actually has a chance, depending on the creativity of your lawyer :D. Hence, the following discussion is based on my own interpretation and is open to rebuttal or counterarguments.

Almost 1 year ago, I wrote about the Supreme Court decision striking down several provisions of the Rules and Regulations Implementing the Milk Code as unconstitutional. The Milk Code or Executive Order No. 51 was signed into law by former President Corazon Aquino on 10 October 1986. I think some form of implementing rules and regulations were issued after that however the IRR appeared to have watered down the Milk Code. Almost 10 years after, former Health Sec. Francisco Duque spearheaded the issuance of Revised Implementing Rules and Regulations seeking to strengthen the Milk Code.

What is the Milk Code? The title is "National Code of Marketing of Breastmilk Substitutes, Breastmilk Supplement and Other Related Products." This law is different from the breastfeeding promotion act, which was originally Republic Act No. 7600 or "The Rooming In and Breastfeeding Act of 1992." RA 7600 is the law being amended by Republic Act No. 10028 or "Expanded Breastfeeding Promotion Act of 2009". I previously provided a brief summary of the changes brought about by RA10028. In a nutshell, EO 51 targets marketing and milk companies while RA7600 and RA10028 are focused on the rights of nursing moms. The Milk Code is actually based on the International Code of Marketing Milk Substitutes of 1981 - of which the Philippines is a signatory. Wendy of PumpEase already wrote a comprehensive summary of the WHO Code so check it out!

So why is the Milk Code so controversial? I think it would be because of Section 6 of the Code:

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products, within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

(b) Manufacturers and distributors shall not be permitted to give, directly, or indirectly, samples and supplies of products within the scope of this Code or gifts of any sort to any member of the general public, including members of their families, to hospitals and other health institutions, as well as to personnel within the health care system, save as otherwise provided in this Code.

(c) There shall be no point-of-sale advertising, giving of samples or any other promotion devices to induce sales directly to the consumers at the retail level, such as special displays, discount coupons, premiums, special sales, bonus and tie-in sales for the products within the scope of this Code. This provision shall not restrict the establishment of pricing policies and practices intended to provide products at lower prices on a long term basis.

(d) Manufacturers and distributors shall not distribute to pregnant women or mothers of infants any gifts or articles or utensils which may promote the use of breastmilk substitutes or bottle feeding, nor shall any other groups, institutions or individuals distribute such gifts, utensils or products provided by this Code.

(e) Marketing personnel shall be prohibited from advertising or promoting in any other manner the products covered by this Code, either directly or indirectly, to pregnant women or with mother of infants, except as otherwise provided by this Code.

(f) Nothing herein contained shall prevent donations from manufacturers and distributors of products within the scope of this Code upon request by or with the approval of the Ministry of Health.

Essentially, there is no advertising, donations, marketing, promotion, sampling, gifts, give-aways, buy one take ones, premiums, specials, coupons, discounts, bonuses of products covered by the Milk Code. Next, let us check what are the products covered by the Milk Code:

Sec. 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products: breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information concerning their use.

It is not only formula but also other products when marketed as partial or total replacement of breastmilk PLUS feeding bottles and teats. Since the Milk Code targets milk companies, amendments to strictly enforce regulation resulted in strong opposition from giant companies, as expected. In the Philippines, once the law is passed, it usually doesn't mean that it will be implemented immediately. More often than not, implementing agencies usually wait for the release of implementing rules and regulations before fully implementing the law. In the case of the Milk Code, implementing rules and regulations were signed on 26 May 1987 or about 7 months after the Milk Code was signed on 20 October 1986. However, blatant violations were still being committed by milk companies and the DOH realized that this was a serious health issue. Thus, almost a decade later, then Secretary Francisco Duque issued the Revised Rules and Regulations (RIRR) which put more teeth to the Milk Code.

Under the RIRR, the coverage was expanded for products intended for children up to 24 months (not just 12 months). Most importantly, coverage is not limited to manufacturers and distributors - but milk companies (meaning if your mother company is a milk company, then you are covered!). Other salient improvements would be total ban on gifts of any sort (e.g. play groups, parties, magazines, trips), non-involvement in any activity on breastfeeding promotion, education, classes/seminars for women, prohibition on health/nutrition claims (higher IQ, gifted child, etc.) and the consideration on the 'total effect' of the advertising material (on whether it undermines breastfeeding) and not just the specific claims.

Because it had more teeth, the Revised Rules and Regulations became subject of the Supreme Court case filed by the Pharmaceutical and Healthcare Association of the Philippines against Secretary Duque, with PHAP, turning a health issue into a trade one. For a quick summary of the Supreme Court Ruling, check this blog.

Essentially, what the Supreme Court struck down was the absolute prohibition of the advertising, promotion or sponsorships of the products covered by the Code (e.g. infant formula, breastmilk substitutes, feeding bottles, teats, related products) and the imposition of administrative penalties. But it does not mean that it is now permitted. Instead, there needs to be prior approval by the Inter-Agency Committee established the Milk Code for activities, advertisements and similar activities. Until now, milk companies are supposed to be prohibited from any involvement in breastfeeding promotion, education, production of breastfeeding materials, seminars/classes for women and children's activities. However, violations are still rampant due to lack of policing. Further, milk companies have found new and creative ways to market their products such as partnerships with the DSWD, forming trade associations allegedly for infant nutrition and more recently, joining the "Oh my Gulay" campaign.

It is an uphill battle and milk companies will not give up the P20++billion annual spending on formula milk without a fight. This is why even though the Milk Code and RIRR are existing, milk companies continue to violate and unethically promote their products. What is P30,000 pesos fine compared to the P20++billion industry? Although the Milk Code has criminal penalties, no one has been convicted and punished with imprisonment.

So what can we do? Be vigilant. Report violations and don't support events or activities that have milk companies as sponsors, exhibitors or research speakers.