Comment posted to my blog
The comment given below was posted to my Blog, Stop TTIP – the Transatlantic Trade and Investment Partnership by someone calling themselves ‘Informed Counsel’ and giving their URL as http://www.itssd.org/.
ITSSD is the Institute for Trade, Standards and Sustainable Development, Inc. ITSSD has been publishing articles and papers, that mirror baby food industry arguments in particular, that Hong Kong’s draft code is trade restrictive. ITSSD has promoted the Australian, New Zealand and UK marketing measures as models to be followed. As we explain below, the UK law contains numerous loopholes and all leading UK health professional bodies, mother support groups and even the government’s own experts have called for them to be strengthened. This is one of the reasons we are so concerned about the lobby activities of ITSSD.
Below it we have corrected some of its inaccuracies and stated our actual position.
The comment as posted in full
Baby Milk Action’s reporting of ITSSD’s Lexis-Nexis articles have been ideological, hyperbolic and less than truthful.
Contrary to your organization’s reporting, the articles (one discussing Hong Kong’s laws and the other discussing the laws of the Philippines) clearly set forth the general presumption incorporated within the World Trade Organization Sanitary and Phytosanitary (“SPS”), Technical Barriers to Trade (“TBT”) and Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) Agreements, which clearly recognize that states possess and maintain the sovereign right to regulate for the purpose of protecting public health and the environment.
The WTO SPS, TBT and TRIPS Agreements, however, also provide that states’ sovereign right to regulate on such bases is, however, subject to override where the facts demonstrate (as ITSSD’s articles argue) that the design or effects of the health or environmental regulation(s) is/are discriminatory in nature OR present(s) an unnecessary obstacle to trade (i.e., it serves as a disguised protectionist mechanism). In other words, these WTO agreements oblige contracting states to ensure that their rules are neither designed nor have the effect of discriminating between otherwise ‘like’ products, and that the rule(s) selected are the least trade-restrictive (and/or least trademark-encumbering) alternative available.
Contrary to your assertion, therefore, ITSSD’s analyses did NOT entail a “clever use [of] selected parts of trade agreements without recognising that governments have sovereign rights and duties to protect health”. Thus, your organization’s portrayal of ITSSD’s arguments as “flawed” is patently false. Rather, it is Baby Milk Action’s argument that is technically flawed.
In addition, your organization’s portrayal of ITSSD’s publishing of its Hong Kong analysis so that it may be reviewed by Hong Kong Government officials as a “bullying tactic” is a grand hyperbolic misrepresentation deserving of a drama award.
Rather, ITSSD’s publishing of its analyses was an effort to inject rational discourse into the heated emotional and ideological debate that Baby Milk Action has fomented, with the help of local UN agency offices, to frighten the public into believing what the organization and the UN wishes them to believe. ITSSD’s published Lexis-Nexis analyses of existing Philippine executive laws also was intended for such purpose – i.e. , to break the logjam of thinking that prevails in these governments because of the misinformation campaigns that Baby Milk Action and others have shamelessly propagated.
It is the duty of Hong Kong Government (and Philippine Government) officials to review ITSSD’s analyses, along with other analyses on the subject (including contrary arguments), if they provide essential information that Baby Milk Action’s distortive public ‘information’ campaign intentionally fails to provide.
Furthermore, Baby Milk Action does not wish to acknowledge the lack of verifiable “science” underlying its calls for total breastfeeding through 3 years of age, especially in Hong Kong where there are minimal concerns about unsanitary drinking water required for use of powdered follow-on formula. It also does not wish to acknowledge the lack of verifiable “science” underlying its allegations that follow-on formula is not nutritious for young children older than 1 year. The UN Food and Agricultural Organization (“UN-FAO”)’s Codex Alimentarius Commission (“Codex”) is currently reviewing food safety and nutrition standards for complimentary foods for children 3 years and older, and the World Health Organization and Codex are considering the review of nutrition standards. But, at the time of the writing of the ITSSD analyses, there were then NO current standards that covered such products consumed by children between 1 and 3 years of age. Indeed, what the Hong Kong studies have shown is a local preference for a sedentary lifestyle without much exercise and a cultural preference favoring certain foods to the exclusion of others.
Moreover, in some countries, like the Philippines, the quality of the food imports from China has much to be desired in terms of food safety. As a result, mothers might prefer to use follow-on formula that is manufactured in-country (using Philippine labor and technology) rather than rely on such imports for young children more than one year of age.
What Baby Milk Action would prefer is for Hong Kong’s proposed rule to be based on Europe’s post-modern precautionary principle so that causation-based science need not be applied. Under that scenario, there would be no need to prove a causal link between the consumption of follow-on formula by a child older than one year of age and either direct or indirect latent health (nutrition) effects years into the future (in adulthood). All that would be necessary to make a claim of future harm is some remote possible correlation – i.e., an opinion or ideological or fabricated ‘cultural’ preference.
Lastly, in the absence of such science, Baby Milk Action fails to acknowledge women’s right to choose whether or not to breastfeed their children older than one year of age through three years of age. The WHO standard, however, recognizes this right which it incorporates into its recommendation for partial breastfeeding, if so chosen, by the mother.
It is time for Baby Milk Action to come clean and let the public in Hong Kong, the Philippines and other East Asian nations know the truth – that, there is NO verifiable scientific evidence demonstrating the ill health or nutrition effects of consumption of follow-on formula by young children over one year of age. Sadly, Baby Milk Action is not in the business of conveying truthful information.
Baby Milk Action comments on the above comment
ITSSD’s has held up the UK Infant Formula and Follow-on Formula Regulations (2007) as a model to be followed, claiming it:
‘ensures against the discouragement of breastfeeding by limiting the marketing of infant formula products intended for infants 0-6 months of age to science and trade publications, and permits only scientifically substantiated follow-on formula health and nutrition claims. It also ensures that follow-on formula products intended for infants 6-12 months of age and young children 1-3 years of age are clearly distinguishable from infant formula products to prevent against consumer confusion that can lead to follow-on formula being inappropriately passed-off as infant formula.’
Can ITSSD identify which of the following products in the UK is infant formula, follow-on formula and growing-up milk?
In truth, the UK Law has not provided clarity to consumers about follow on formula, and over 30% of families have been reported to give follow on formula to children under 6 months of age in a national Government survey. In addition, in surveys a third of mothers believe they have seen infant formula advertised even though this is not allowed by UK regulations, because products are branded in a similar way. An example of such advertising and the misleading claims it contains are given below.
The World Health Organisation has stated that follow-on formulas are unnecessary and are breastmilk substitutes if promoted as such. Baby Milk Action’s position reflects this expert opinion, so is not ideological and unsubstantiated as suggested in the comment.
The author claims that ITSSD’s analyses were an effort to inject “rational discourse into the heated emotional and ideological debate that Baby Milk Action has fomented, with the help of local UN agency offices, to frighten the public into believing what the organization and the UN wishes them to believe.” WHO and UNICEF have responsibility for advising Member States on implementation of the International Code, so we believe that it is illogical to blame Baby Milk Action if the UN is simply doing its job properly.
The author says we are calling for “total breastfeeding through 3 years of age.” This is totally untrue. Not only are we not in the business of telling mothers what they should and shouldn’t do, but we are not aware of anyone who promotes ‘total’ breastfeeding to 3 years.
Our purpose – repeated many times in our publications (see about us page) – is to protect ALL mothers – those who decide to breastfeed AND those who decide to use formula. We help ensure that no parent is misled, that products are as safe and nutritious as possible. We have worked for years for safer composition, labelling and marketing standards in the EU and at Codex – where the powerful producer countries and corporations are currently pushing to expand the market for formulas for older babies. One of our roles is to remind Member States, that as primary duty bearers, they have an obligation to protect health and ensure – through appropriate legislation – that ‘marketing and advertising do not have adverse impacts on children’s rights.’ (1) They must also provide the enabling environment women need to breastfeed optimally.(2)
Our position on breastfeeding – the biological norm – reflects that of the World Health Assembly: “As a global public health recommendation, infants should be exclusively breastfed for the first six months of life to achieve optimal growth, development and health.Thereafter, to meet their evolving nutritional requirements, infants should receive nutritionally adequate and safe complementary foods while breastfeeding continues for up to two years of age or beyond.”(3)
Because the UK Infant Formula and Follow-on Formula Regulations (2007) has failed to implement at the International Code of Marketing of Breastmilk Substitutes and subsequent, relevant World Health Assembly Resolutions correctly, companies are able to use follow-on formula advertising to promote unnecessary and expensive products with misleading claims. This advertising cross-promotes infant formula brands. The example, left, is a Danone advertisement for its Aptamil brand, part of a series that suggest its formula benefits babies’ eye, brain and bone development. The eye claim was challenged by a majority of European Parliamentarians in 2011 – but because of EU rules, it was not possible to stop the claim being authorised. It is now commonly used in the UK and elsewhere. This advertisement was cleared by the Advertising Standards Authority last month specifically because of the follow-on formula loophole in the UK legislation.
The leading UK health worker associations, UK and EU parliamentarians, mother support groups and even the government’s own Scientific Advisory Committee on Nutrition have criticised the UK Regulations for being too weak as they permit such strategies. The European Food Safety Authority has also stated that ‘growing up’ formulas are not necessary and after an extensive literature review. found no scientific evidence, or insufficient evidence, to support the inclusion of many of the ingredients commonly used in formulas.
Numerous health bodies are raising concerns about the risks of prolonging the bottle feeding period and the use of sweetened products, not least their impact on children’s eating habits and taste profiles and of course obesity. (5)
If countries such as Hong Kong and the Philippines follow ITSSD’s suggested approach they will be opening their doors to industry’s misleading strategies. It is Baby Milk Action’s role to share this evidence. For further analysis see the monitoring reports we produce on behalf of the Baby Feeding Law Group.
In May, the UN Special Rapporteur on the right to food, Olivier De Schutter, welcomed the moves towards regulating the advertising of formulas in Hong Kong and the Philippines and described suggestions that implementing World Health Assembly measures could violate WTO law as ‘simply false.” (6)
1 General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights* Para 20 “States should ensure that marketing and advertising do not have adverse impacts on children’s rights by adopting appropriate regulation and encouraging business enterprises to adhere to codes of conduct and use clear and accurate product labelling and information that allow parents and children to make informed consumer decisions.” crc/c/gc/16 site:www2.ohchr.org 16
16 June 2011, the UN Human Rights Council endorsed the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” proposed by UN Special Representative John Ruggie. http://www.business-humanrights.org/UNGuidingPrinciplesPortal/Home http://www.ohchr.org/documents/issues/business/A.HRC.17.31.pdf
2 Convention on the Rights of the Child (CRC) recognises the right of mothers to breastfeed, to appropriate assistance in the performance of child-rearing responsibilities and the development of institutions, facilities and services for the care of children. Children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
3 WHO, Global Strategy for Infant and Young Child Feeding, 2003 Promoting appropriate feeding for infants and young children 10. Breastfeeding is an unequalled way of providing ideal food for the healthy growth and development of infants; it is also an integral part of the reproductive process with important implications for the health of mothers. As a global public health recommendation, infants should be exclusively breastfed for the first six months of life to achieve optimal growth, development and health.(1) Thereafter, to meet their evolving nutritional requirements, infants should receive nutritionally adequate and safe complementary foods while breastfeeding continues for up to two years of age or beyond. Exclusive breastfeeding from birth is possible except for a few medical conditions, and unrestricted exclusive breastfeeding results in ample milk production.
4 Committee on the Rights of the Child, General comment No. 15 (2013)The right of the child to the enjoyment of the highest attainable standard of health (Article. 24) 14 March 2013, CRC/C/GC/15
Exclusive breastfeeding for infants up to 6 months should be protected and promoted and breastfeeding should continue together with appropriate complementary foods preferably until two years of age as feasible. States’ obligations in this area are defined in the “protect, promote and support framework”, adopted unanimously by the World Health Assembly….. States are required to introduce into national law, implement and enforce internationally agreed standards concerning children’ right to health, including the International Code on Marketing of Breast-milk Substitutes, as well as the WHO Framework Convention on Tobacco Control. Special measures should be taken to promote community and workplace support to mothers in relation to pregnancy and lactation, and feasible and affordable child-care services, and compliance to the ILO Maternity Protection Convention 2000 (No. 183).
Convention on the Rights of the Child, Convention on the Rights of the Child (CRC) recognises the right of mothers to breastfeed, to appropriate assistance in the performance of child-rearing responsibilities and the development of institutions, facilities and services for the care of children. Children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
5 FIRST STEPS NUTRITION has many excellent reports including:
Fortified milks for children: A worldwide review of fortified milks marketed for children over 1 year First Steps Nutrition Trust http://www.firststepsnutrition.org/newpages/fortified_milks_for_children.html
In 2011 the German Federal Institute for Risk Assessment found no advantage of growing-up milks compared to reduced fat cow milk and German Consumer Centres found they were 4 times as expensive as normal milk.
In 2012 the Australian Government’s infant feeding guidelines said: ‘Toddler milks and special and/or supplementary foods for toddlers are not required for healthy children.’
In 2013 the European Food Safety Authority concluded that GUMs have no additional value to a balanced diet.
6 “Governments should move forward with these measures, which are essential to ensure that people are protected from aggressive misinformation campaigns,” he said. “They are also crucial to implement the WHO International Code of Marketing of Breast-milk Substitutes and subsequent World Health Assembly recommendations. Suggestions that these steps could violate WTO law by restricting international trade are simply false,” he added. May 2014 UN Special Rapporteur on the right to food, Olivier De Schutter