Baby Milk Action press release 20 July 2016

The UK Government and devolved authorities have today introduced Statutory Instruments updating formula and baby food marketing laws in line with new EU regulations. Although the Regulations fall far short of international minimum standards repeatedly called for by UN human rights bodies, Baby Milk Action welcomes the improvements that have been made following its campaigns. Department of Health proposals to decriminalise certain provisions of the laws have been shelved and instead a new “Improvement Notice” regime will have legal force. It will be a criminal offence under the Statutory Instruments for England, Northern Ireland (NI) and Wales/Cymru for a company not to act by the specified deadline on an Improvement Notice issued by an enforcement authority.

It will also be a criminal offence under Scotland’s Statutory Instrument not to abide by certain provisions of the EU Regulations, but no Improvement Notice warning system is being introduced.

Mike Brady, Campaigns and Networking Coordinator at Baby Milk Action, said:

“We mounted a campaign in Parliament specifically calling for Improvement Notices to have deadlines attached, to lead to criminal prosecutions if they are ignored and for them to be public. Two of these three calls have been met in the legislation. We will now ask for Improvement Notices to be issued and made public for the many breaches of the regulations that have gone unpunished.

“The UN Committee on the Rights of Child (CRC) has called three times, in 2002, 2008 and 2016, for the UK government to fully implement the International Code of Marketing of Breastmilk Substitutes and subsequent, relevant Resolutions of the World Health Assembly after noting that aggressive marketing is common in the UK. The Government could have used this Statutory Instrument to make these changes, but has failed to do so once again.”

Patti Rundall, Baby Milk Action’s Policy Director, said:

“In this confusing Brexit time, it is important to remember that while the EU has not implemented all the safeguards parents and children need, it has been through the EU that some very important legal controls on the way baby foods are marketed and manufactured.have been adopted. The purpose of the Precautionary Principle, one of the EU’s fundamental principles, is to prevent risky products and technologies – GMOs, hormone-laced beef and milk, misleading marketing etc. And just a few months ago European MPs voted for radical reductions in sugar in baby foods. Before opening up the UK market to risky products from the USA, China or wherever, the Government needs to guarantee that these safeguards will not only be retained but strengthened so that the marketing that has misled parents and turned the UK into an obesogenic environment is ended.”

Baby Milk Action and its partners in the Baby Feeding Law Group (a coalition of leading health professional and mother support groups) has, over many years, participated in consultations with the European Commission and the European Parliament to adopt and strengthen EU Regulations. Before EU Directives were adopted in 1991 and 92 there were no specific controls on the safety, marketing or export of formulas and foods for babies. The UK relied on weak voluntary agreements with industry. Advertising was totally unregulated and free samples and free supplies of infant formula were common in all hospitals until these EU Directives were introduced.

The Statutory Instrument for England (SI 2016 No 688) is to enforce the provisions of EU Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control. Similar SI have been introduced by the devolved authorities for Northern Ireland, Scotland and Wales. The EU Regulation comes into force on 20 July 2016, giving companies have several years to bring practices into line with specific requirements set out in Delegated Acts for specific types of products. See the explanation below for the different regulations and timescales.

It remains to be seen how the UK leaving the EU (Brexit) will change the situation and whether the Government will build on the EU Regulations and bring in the extra controls that are so badly needed.

Ms Yeong Joo Kean, Legal Adviser, International Code Documentation Centre (ICDC), IBFAN, said:

“This new legislation will be a useful precedent for countries looking for innovative ways to hold companies to account and to improve their marketing behavior. Despite BREXIT, I hope other EU countries will realise that they still need to introduce enforcement provisions in their laws before EU Regulation 609/2013 can be enforceable. This is so welcome.”

For further information contact:

Mike Brady or Patti Rundall on 07786 523493.

Understanding the EU Regulations

The countries of the UK (England, Northern Ireland, Scotland and Wales) have regulations for the marketing of formulas, baby foods and other nutritional products. These derive from European Union Directives, developed by the European Commission (the civil service of the EU) and approved by the European Council (made up of representatives of Member States) and the European Parliament.

For example, the Infant Formula and Follow-on Formula Regulations (2007) have been introduced as identical legislation in the four countries to implement Directive 2006/141/EC.

This Directive are being replaced by EU Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control. This comes into force on 20 July 2016, giving manufacturers notice to comply with additional regulations for specific classes of products are set out in EU Delegated Acts, which come into force at a later date.

For example, there is: Commission Delegated Regulation (EU) 2016/127 of 25 September 2015 supplementing Regulation (EU) No 609/2013 of the European Parliament and of the Council as regards the specific compositional and information requirements for infant formula and follow-on formula and as regards requirements on information relating to infant and young child feeding.

This will apply from 22 February 2020 (except in respect of infant formula and follow-on formula manufactured from protein hydrolysates, which apply from 22 February 2021).

The existing formula directive, 2006/141/EC, will be repealed on 22 February 2020 (except the provisions on the formulas from protein hydrolysates, will continue until 2021).

The full list of Delegated Acts can be found here:

Understanding the Statutory Instrument

There are two aspects to the Statutory Instrument signed by the Secretary of State for Health for England (similar measures are required in each of the countries making up the UK).

The first give force to EU Regulation 609/2013 by modifying the Food Safety Act (1990). The changes to the Food Safety Act make it a criminal offence not to abide by EU Regulations. People failing to do so can be warned with an Improvement Notice by the appropriate authority and then prosecuted if they do not act by the deadline. As explained above, the provisions for specific types of products will not come in for several years, but companies know they will have a legal requirement to make the changes by the deadline (unless Brexit changes the situation).

The second aspect of the Statutory Instrument is that it modifies existing regulations, such as the Infant Formula and Follow-on Formula Regulations (2007). These changes introduce the Improvement Notice regime applicable to certain provisions, such as composition, labelling, advertising and presentation, making it clear that it is a criminal offense not to act on an Improvement Notice by the deadline, though appeal can be made in court against them. A summary conviction will lead to a fine.

Baby Milk Action will call for Improvement Notices to be issued for the many breaches of existing regulations that have gone unpunished. As the provisions are the same in most cases in the new EU Regulations, there is no reason for enforcement authorities to delay taking action.

The Statutory Instrument also avoids duplication by deleting requirements in the current laws regarding export of products outside the European Union. As the new EU Regulations make clear, these requirements appear elsewhere in EU law.

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