While all EU states recognise that European Union (EU) law has primacy over the laws of the Member States, the Romanian development demonstrates this country’s  commitment to fulfilling its international obligations to protect children’s rights to health. It also raises the question of what a country should do when the EU does not regulate a given area effectively and allows commercial practices that do not promote the high level of public health protection that the EU has a mandate to ensure in all its policies.

Because the EU regulations are not fully harmonised in all aspects  Member States may adopt rules at national level in areas that are not harmonised at EU level – provided that these national rules are proportionate, justified and do not conflict with rules of EU law (in particular the rules of the Treaty). National measures on advertising of follow-on formulae would have to be notified to the Commission, which would evaluate their compatibility with EU law on a case-by-case basis.

The International Code  of Marketing of Breast milk Substitutes and the subsequent WHA resolutions that accompany it,  are essential  safeguards for all babies – those who are breastfed and those who are not.  Mothers themselves have no obligation to breastfeed their child and always remain fully sovereign over their own body, but States do have an obligation to remove obstacles to breastfeeding and children’s rights to optimal health. Below are some considerations that Member States can take into account in their nutrition and health planning.

• All EU Member States have been consistently endorsed the International Code of Marketing of Breast milk Substitutes and all subsequent relevant resolutions of the World Health Assembly (WHA)
• All EU Member States have ratified the Convention on the Rights of the Child (CRC) that requires them to provide all necessary support and protection to mothers and their infants and young children to facilitate optimal feeding practices. UN human rights experts and bodies call upon all States to “adopt comprehensive and enforceable legal and regulatory measures to protect babies and mothers from such practices, and fully align with the recommendations contained in the International Code and the aforementioned new WHO Guidance. Adopting such measures must be recognized as part of States’ core obligations under the Convention on the Rights of the Child and other relevant UN human rights instruments…”
  • The CRC Committee has urged Romania and many countries to adopt the International Code and Resolutions. France and the UK were both specifically recommended to implement the International Code in 2016. Austria and Portugal in 2012 and 2014, were urged to strengthen their monitoring of existing regulations relating to the marketing of Breast-milk Substitutes in order to tackle the Code violations highlighted by the CRC Committee.
• There was consensus at the 2016 Codex nutrition meeting  (38th CCNFSDU) regarding the need to make reference token the 2016 WHO Guidance  on ending the  inappropriate Marketing of foods for Infants and Young Children  This Guidance clearly calls for the commercial promotion of all formulas for babies 0-36 months to end.  The Guidance also clarifies WHO’s position on commercial sponsorship. Bad diet is now acknowledged to be the biggest cause of death and disability and the costs of diet-related diseases are fast consuming health budgets. At the Codex meeting the EU in particular highlighted its concern with the growing obesity rates in children in the EU.
• The Codex Code of Ethics for International Trade in Food (CAC/RCP 20-1979  4.4) states that “national authorities should be aware of their obligations under the International Health Regulations (2005) with regard to food safety events, including notification, reporting or verification of events to the World Health Organisation (WHO). They should also make sure that the International Code of Marketing of Breast milk Substitutes and relevant resolutions of the World Health Assembly (WHA) setting forth principles for the protection and promotion of breast-feeding be observed.”
• International Health Regulations (2005) with regard to food safety events, including notification, reporting or verification of events to the World Health Organisation (WHO).
• The European Treaty states that “A high level of Physical and Mental health protection shall be ensured in the definition and implementation of all Community policies and activities”
• Regulation 2016/127 includes the many clarifying paragraphs that highlight the importance of the International Code, the risks of commercial promotion and the EU Action Plan on Childhood Obesity 2014-2020:
• Processed, expensive, sweetened and flavored milks targeting 6-36 month old children account for 50% of absolute growth in a formula market that is set to rise by 55% from US$45 billion to US$70 billion by 2019. CLICK HERE

Further considerations:

A joint study by the WHO and WTO secretariat says on §20: “(iii) The MFN (most-favoured nation) principle and public health  20. How is the MFN principle applied in practice? For example, health authorities in a country may decide to restrict the level of pesticides on fruit because of an unacceptable health risk. This will affect trade to the extent that imported fruit does not meet the specified requirement. This is a perfectly legitimate health concern translated into a regulatory action at the border, which, if applied in a non-discriminatory way, and based on scientific principles, is a justifiable trade barrier under WTO rules. In respect of discrimination, if the intention is to protect the consumer, it should not matter where the health risk originates, unless there is evidence that some countries have a higher level of risk. The point is that the requirement has to be the same, irrespective of where the product originates. Fruit from countries that do not fulfil the sanitary requirement could, justifiably, be banned. But the same fruit with an acceptable level of pesticide residues would be allowed in. “https://www.wto.org/english/res_e/booksp_e/who_wto_e.pdf)

It follows that  health authorities can decide to restrict the access to their territory for certain goods which would imply an unacceptable health risk. This public health reserve could be used to justify that if certain EU products, packaged in violation of the Code, are restricted in certain other countries, it does not constitute a barrier to trade. Indeed, WTO members including EU have the right to introduce what is called technical barriers to trade (TBT) if justified by “legitimate objectives” under the TBT Agreement. “Protection of human, animal, plant and environmental health are among the legitimate objectives for which product requirements may be developed. Of all TBT regulations notified to the WTO in 2000, the largest single group (254 notifications, out of the total of 725 that were received) had human health or safety as their objective.” (see WTO agreements and Public Health: a joint study by the WHO and WTO secretariat, §30).

When establishing such TBT, States are encouraged to use international standards. “If a Member considers certain WHO standards appropriate to be adopted as national standards or technical regulations, it should use them. Nevertheless, Members are free to set standards at a level they consider appropriate, but have to be able to justify their decisions if requested by another Member to do so. ” (§31) The International Code and subsequent relevant WHA are WHO standards and should never be called TBT when implemented and enforced to protect public health.

Regulation 2016/127 
(22) Regulation (EU) No 609/2013 provides that the labelling, presentation and advertising of infant formula and follow-on formula is to be designed so as not to discourage breastfeeding. There is scientific consensus that breast milk is the preferred food for healthy infants and the Union and its Member States are continuously committed to supporting breastfeeding. The conclusions adopted by the Council on nutrition and physical activity (1) invited Member States to promote and support adequate breastfeeding and welcomed the Member States’ agreement on an EU Action Plan on Childhood Obesity 2014-2020, which includes a series of actions aimed at increasing breastfeeding rates in the Union. In this context, the EU Action Plan recognised the continuous importance of the World Health Organisation (WHO) International Code of Marketing of Breast-milk Substitutes, on which Directive 2006/141/EC was based. The WHO Code, adopted by the 34th World Health Assembly, aims at contributing to the provision of safe and adequate nutrition for infants, by the protection and promotion of breast-feeding, and by ensuring the proper use of breast-milk substitutes. It includes a series of principles related to, among others, marketing, information and responsibilities of health authorities.
(23) In order to protect the health of infants, the rules laid down in this Regulation and in particular those on labelling, presentation and advertising, and promotional and commercial practices should continue being in conformity with the principles and the aims of the International Code of Marketing of Breast-milk Substitutes bearing in mind the particular legal and factual situation existing in the Union. In particular, evidence shows that advertising directly to the consumer and other marketing techniques influence parents and caregivers in their decisions on how to feed their infants. For this reason, and taking into account the particular role of infant formula in the diet of infants, specific restrictions should be laid down in this Regulation on advertising and other marketing techniques for this type of product. However, this Regulation should not concern the conditions of sale of publications specialising in baby care and of scientific publications.
(24) In addition, information given on infant and young child feeding influences pregnant women, parents and caregivers when choosing the type of nourishment for children. It is therefore necessary to lay down requirements in order that such information ensures an adequate use of the products in question and is not counter to the promotion of breast feeding, in line with the principles of the WHO code.

The particular case of Romania

Essentially Romania has amongst highest rates of small for gestational age infants and highest gender inequality in EU and other MCH indices are amongst the worst e.g. Teenage pregnancy…  Hygiene and sanitary risks are also high because of poor infrastructure.  There are many negative consequences that could be reduced by higher breastfeeding rates.  It is therefore really important that the Romanian health care system ensures that  women and families get the best possible start in life and are not undermined.

Romanian National Institute for Mother and Child Health study

Percentage breastfed babies: 92.2% at discharge from maternity – At the age of 3 months 59.3% – At the age of 6 months (exclusively breastfed) 36.9% – At the age of 1 year 13% Although most mothers breast feed their babies at discharge from maternity subsequent lack of sustained support from others discourages continue breast-feeding

Statistics related to breastfeeding in the National study on Reproductive Health 2004 include the following:

Percentage breastfed babies: percentage of children born in the last 5 years, 88% breastfed a variable time percentage breastfed babies the first day 65% percentage of children breastfed in the first hour 12% percentage of children breastfed at 6 months of age (exclusively breastfed) 16% percentage of children breastfed at the age of 9 months, complementary foods 32% the average age at weaning six months the average age of introduction of complementary food 4 months Continued breastfeeding rate at 12 months was 21.3% in 2010.

Code violations in Romania: The baby food industry is up to all their usual tricks in Romania. In addition to advertising,  the main way that companies  undermine breastfeeding is by influencing health workers – pediatricians, neo-natologysts,  family doctors, midwives through training, dinners and sponsorship – including fully paid trips abroad and donations to Maternity Hospitals who order formula.

Here’s the  link to the  Nutraingredients by Annie-Rose Harrison-Dunn, 08-Nov-2016

Romania goes beyond EU minimum with infant formula restrictions

Censoring choice?  SNE concerned about Romanian Plans http://www.nutraingredients.com/Regulation-Policy/SNE-concerned-about-Romanian-infant-formula-censorship

SUMMARY REPORT OF THE STANDING COMMITTEE ON PLANTS, ANIMALS, FOOD AND FEED HELD IN BRUSSELS ON 07 MARCH 2017

Monitoring report from Romania  2012. Annex 1 – Raport monitorizare Cod