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WHO moves ‘almost far enough‘ on sun-setting of the Code – 10,000 support IBFAN’s call
148th WHO Executive Board Meeting (EB148) (18 – 26th January 2021)
In November we wrote about the proposals to Sun-set reporting on the Code. Since then we have we had a series of meetings and correspondence with WHO Senior Staff, several Member States have called for reporting to the World Health Assembly to continue after 2030 and a La League International petition has attracted over 7,500 signatures.
We warmly welcome WHO’s assurance that:
- There is no proposal to sunset the code, a crucial public health instrument.
- WHO is strongly committed to the Code and the protection of breastfeeding;
- WHO regrets any unintended consequence of a broader governance issue implying a lack of WHO’s support for the Code and says this should be corrected.
- well before 2029 WHO will be consulting on promotion, protection and support of breastfeeding, digital marketing, underlying determinants of poor breastfeeding and the public health relevance of adequate breastfeeding (deaths accounted for)
However, ambiguity remains because the Decision passed in November (WHA73/26 ) still calls for reporting – but only ‘until 2030’. The pressures on WHO to work in partnership with the private sector rather than hold companies accountable are clearly increasing. Will the reporting obligations embedded in the Code and WHO Constitution be forgotten or overlooked? The food industry has wanted the Code removed from the WHO agenda for decades, knowing that Member States reports to the Assembly prompt new resolutions that keep pace with continually evolving marketing. WHO has a duty to keep watch on all commercial promotion that has the potential to harm health – whether on baby foods, tobacco. junk foods, or alcohol.
In a new Document EB148/33, published for WHO’s Executive meeting the Code is not on the list of 47 Resolutions proposed for ‘sun-setting.’ There are also several new safeguards: “the sun-setting of reporting requirements aims to improve agenda management and does not signify that work pursuant to the relevant resolution has ceased.(para 7), “the Secretariat proposes to clearly indicate to the governing bodies when a final report on progress is presented to the governing bodies, such that Member States may provide any additional guidance in terms of future reporting.” (para 8)
In order to ensure there is no misunderstanding in coming years, IBFAN is calling on Member States to intervene during the debate on EB148/33 (Pillar 4, Agenda Item 19.2 WHO Reform) to insert the following clarifying amendments:
- If it is possible to open WHA73/26, Add a footnote referring to EB148/33 making it clear that reporting on the Code will continue beyond 2030.
- Add the following amendments to the list of exceptions in Para 5 of EB148/33 :
- The International Code of Marketing of Breastmilk Substitutes is an exception because it is in a ‘class of its own’ in terms of international human rights instruments and the WHO Constitution. It places affirmative obligations on Member States and on the WHO Director General to implement it and on commercial companies to comply with it.
- The reporting obligations under Article 11.6 of the Code refer to article 62 of the WHO Constitution. It follows that reporting by Member States is part of their obligations under Article 62 of the Constitution. Therefore, any interference with this obligation, or any attempt to change it, would be incompatible with the Constitution.
Note on the Human Rights implications. UN CRC General Comment no. 15 and 16 (2013) and UN ECOSOC General Comment no. 24 (2017) in combination with International Court of Justice Judgement of 30 November 2010 concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo). Also see Extraterritorial Obligations and the Code_Feb 2018 Discussion paper, February 2018 The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights and the International Code of Marketing of Breastmilk Substitutes.
Background
Although 2021 is not a reporting year for the International Code of Marketing of Breastmilk Substitutes, it is the 40th Anniversary of its adoption, so it is important that this is celebrated as a critical public health instrument to protect children’s and women’s lives from marketing practices that interfere with informed infant and young child feeding decisions and undermine breastfeeding.
However, IBFAN was taken by surprise in 2020 by a WHO proposal to end reporting of Resolutions that are more than 6 years old. The problems started in February 2020, during the EB146 when the WHO Secretariat (as part of its Reform Process) proposed that biennial reporting on Maternal, Infant and Child Nutrition (including the Code) should end by 2026. We mounted a campaign calling on WHO and Member States to reconsider.
In June the BMS Call to Action was launched claiming to be a ‘fresh’ and ‘industry savvy’ strategy to achieve voluntary Code compliance by 2030. IBFAN published a Counter-Call – asking WHO and UNICEF to disassociate themselves and focus instead on helping Member States adopt legislation.
In November, a revised sun-setting Decision was adopted – this time with the longer deadline of 2030. IBFAN and our partners remained concerned because this still amounted to ‘sun-setting’, albeit 4 years later. Several Member states asked for reporting to continue beyond 2030
In December La Leche League International (Mexico) started a petition supporting IBFAN’s Counter-call and sun-setting. The petition now has attracted over 7,500 signatories.
We had a series of meetings and correspondence with WHO Senior Staff to explain that:
- The reporting requirements of the November Decision (WHA73/26) have not been amended and still refer to reporting continuing ‘until 2030’.
- There is no evidence that marketing that harms children is decreasing nor is it likely to end by 2030;
- WHO and Member States Code have obligations under the WHO Constitution and the Code to report biennially to the World Health Assembly on their progress in implementing the Code;
- 19 Resolutions have been adopted since 1981 that have helped governments keep pace with evolving marketing strategies and adopt legislation on health and nutrition claims, free and low-cost supplies of breastmilk substitutes and conflicts of interest in health care and monitoring.
- The Code is not a time-specific action plan or goal like the MDGs or SDGs.
- The removal of the reporting obligations embedded in the Code will have serious consequences for maternal and child health.
_EB Participants List___________________________________________________________________
This article highlights key touchstones for reflections on WHO’s role in the international health arena and raises a number of possibilities, relating to language, propaganda even, and power, which could contribute to reclaiming WHO’s capacity to unequivocally work for peoples’ health
Defending and Reclaiming WHO’s Capacity to Fulfil its Mandate
No ‘sunset clause’ please! NGOs call for vigilance on harmful marketing
No ‘sunset clause’ please! NGOs call for vigilance on harmful marketing
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Some other items on the agenda EB148/1(annotated) Provisional agenda (annotated)
Below are the three IBFAN statements we submitted – however due to technical difficulties and Chairs decisions we weren’t able to deliver them orally. But they are on the WHO NSA website.
EB148/39. Agenda Item 19.5. Report on the implementation of the Framework of Engagement with Non-State Actors (FENSA)
IBFAN and many public interest organisations have consistently worked to protect WHO from undue commercial and political influence – long before the development of FENSA. Member States refusal to lift the long-standing ban on raising assessed Member state contributions to WHO, has placed WHO into a severe institutional conflict of interest – a conflict between its mandate (its ‘primary interest’) and the need to collect funds.
The development of FENSA , which calls all kind of actors ‘stakeholders’ or ‘partners’ blurs the fundamental differences between actors in terms of power, interests, and legitimate roles. It has certainly, as we feared, drawn WHO, Member States and public interest NGOs deeper into a world that favours business and private philanthropies’ interests.
Sadly, WHO has failed to correct its conflict of interest definition, which is based on a Gates-funded project and used by the Scaling-Up Nutrition (SUN) initiative, a public-private hybrid that IBFAN has criticised from its inception. SUN and FENSA promote the idea that complex problems can only be solved if ‘all stakeholders’ work together in ‘partnership.’ In reality when there are no shared goals, inappropriate partnerships can seriously undermine WHO’s purpose.
For IBFAN and those working on issues related to marketing, we can feel the pressure to move away from independent monitoring, strong regulations and holding corporations accountable for their actions, to start trusting and believing corporate promises and multi-stakeholder partnerships – all the while pretending this is moving us forward to a safer and more equitable world.
Sadly, none of these fundamental issues are properly addressed in the FENSA evaluation. The COVID crisis has shown the world the importance of having a strong and brave WHO – please lets make it can also be independent.
Item 5 Global action on Patient safety. (Due to technical problems at WHO we were not able to read the Statement. It will be on WHO’s NSA platform until WHA74.
IBFAN, is the 40-year old global network working in partnership with WHO to end harmful marketing that undermines breastfeeding and child health. We are pleased to contribute to the debate on patient safety and Universal Health Coverage, on behalf the world’s youngest citizens, newborn babies, and their right to be safely delivered into an environment free from commercial influence.
We appreciate WHO and UNICEF’s COVID-19 guidance on the care and feeding of newborns that is being widely adopted and helping to ensure that mothers and babies are not cruelly separated from each other unnecessarily on the basis of false information.
IBFAN has on-the-ground experience of how baby food companies are exploiting the pandemic and adding to such misinformation. Companies have devised YouTube channels with doctors suggesting that mothers stay 6 feet away from their babies, they sponsor the training of medical students, they promote breastmilk substitutes with false claims that they build immunity and protect against viruses. Such marketing violates WHO’s clear guidance on marketing and conflicts of interest and puts babies health at risk. Yet companies persist, pretending their support is ‘Humanitarian’ and that they are suitable partners in nutrition. Poorly-resourced health workers who are not well informed will not know who to trust.
When considering funding for UHC we must remember the 8 WHA Resolutions that call for Conflicts of Interest safeguards – forbidding the baby food industry from funding or influencing the infant and young child feeding arena. Partners who work against public health goals do not help. Strong legislation is the way to make harmful practices and misinformation a thing of the past. Thank you
IBFAN statement on 19.1 WHO Transformation
As a global network working in partnership with WHO for over 40 years, IBFAN is pleased contribute to this debate. IBFAN’s primary work centres around the International Code of Marketing of Breastmilk Substitutes and its 19 clarifying Resolutions.
When implemented well, the Code helps Member States hold corporations accountable for practices that harm health and will help ensure that the WHO Reform does not subvert WHO’s constitutional mandate of health for all and the world’s regulatory and standard setting body in international health matters.
Unless checked, increased emphasis on technological approaches can drain national resources and undermine essential primary health care that save lives.
It is not wise that ‘all stakeholders’ work together in partnership. Partners that work against public health goals are not good partners – however friendly they may sound. We have seen how the baby food industry exploits COVID-19, undermining WHO guidance and ignoring the 8 WHO resolutions on Conflicts of Interest. This industry should have no role in funding or influencing infant feeding.
We are pleased to have WHO’s reassurance that the International code will not be sun-setted. However an ambiguity remains in WHA73/26 that still calls for reporting ‘until 2030’.
We call on Member states to clarify EB148/33 with an amendment to Paragraph 5. Any interference with WHO and Members states obligation to report to the WHA would be incompatible with WHO’s Constitution.
EB148. Agenda Item 14.1. Covid-19 response
EB148/35 WHO reform Involvement of non-State actors in WHO’s governing bodies
EB148/39 Report on the implementation of the Framework of Engagement with Non-State Actors(FENSA)
EB148/40 Agenda Item 19.5 Engagement with non-State actors. Non-State actors in official relations with WHO
Documents EB148/7, EB148/7 Add.1 and EB148/7 Add.2 Political declaration of the third high-level meeting of the General Assembly on the prevention and control of non-communicable diseases
EB148/9 Expanding access to effective treatments for cancer and rare and orphan diseases, including medicines, vaccines, medical devices, diagnostics, assistive products, cell- and gene-based therapies and other health technologies; and improving the transparency of markets for medicines, vaccines, and other health products