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5 October 2014

Mr. Ryan Jeremiah Quan


Manila
Dear Mr. Quan,
This legal opinion seeks to answer your question as to whether or not the regulation
limiting the minutes allowed for television commercials for powdered milk or milk substitute
issued by the appropriate agencies of the Philippine government is not valid as it contains
provisions that are not constitutional and go beyond the law it is supposed to implement.
The Facts
Per our discussion and the documents you have shown me, the following are the
pertinent facts:
The World Health Organization issued an advisory promoting breastfeeding as studies
showed that breast milk is beneficial for every child. The same advisory required all countries
that are part of the United Nation to do everything to promote breastfeeding and the use of
breast milk. The Philippine government, through appropriate agencies, issued a regulation
limiting the minutes allowed for television commercials for powdered milk or milk substitute.
Malnutrition has been responsible, directly or indirectly, for 60% of the 10.9
million deaths annually among children under five. Well over two-thirds of these deaths,
which are often associated with inappropriate feeding practices, occur during the first year
of life. No more than 35% of infants worldwide are exclusively breastfed during the first
four months of life; complementary feeding frequently begins too early or too late, and
foods are often nutritionally inadequate and unsafe. Malnourished children who survive
are more frequently sick and suffer the life-long consequences of impaired development.
Rising incidences of overweight and obesity in children are also a matter of serious
concern. Because poor feeding practices are a major threat to social and economic
development, they are among the most serious obstacles to attaining and maintaining
health that face this age group. 1
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
1 World Health Organization, Global Strategy for Infant and Young Child Feeding, 5 (2003).

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. 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.2
The World Health Organization recommends that infants start breastfeeding within
one hour of life, are exclusively breastfed for six months, with timely introduction of
adequate, safe and properly fed complementary foods while continuing breastfeeding for
up to two years of age or beyond.
Promoting sound feeding practices is one of the main programme areas that the
Department of Nutrition for Health and Development focuses on. Activities include the
production of sound, evidence-based technical information, development of guidelines and
counselling courses, provision of guidance for the protection, promotion and support of
infant and young child feeding at policy, health service and community levels, production
of appropriate indicators and maintenance of a Global Data Bank on Infant and Young
Child Feeding.3
The Applicable Law
The applicable law is Section 21 of Article VII of the 1987 Philippine Constitution. It
provides that:
No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.4

The Applicable Jurisprudence

2 World Health Organization, Global Strategy for Infant and Young Child Feeding, 7 (2003).

3 World Health Organization, Promoting proper feeding for infants and young children, available at
http://www.who.int/nutrition/topics/infantfeeding/en/ (last accessed September 25, 2015).

4 Phil. Consti. art. VII, 21.

The World Health Assembly adopted the International Code of Marketing of Breastmilk Substitutes in 1981 to protect and promote breastfeeding, through the provision of
adequate information on appropriate infant feeding and the regulation of the marketing of
breastmilk substitutes, bottles and teats. In subsequent years additional resolutions have
further defined and strengthened the Code.
The code stipulates that there should be absolutely no promotion of breastmilk substitutes,
bottles and teats to the general public; that neither health facilities nor health professionals
should have a role in promoting breastmilk substitutes; and that free samples should not be
provided to pregnant women, new mothers or families. All governments should adopt the
Code into national legislation. Since 1981, 84 countries have enacted legislation
implementing all or many of the provisions of the Code and subsequent relevant World
Health Assembly resolutions. In addition, 14 countries have draft laws awaiting adoption.
The latest update of the state of the code by country provides an overview of all countries.
UNICEF is working with legislators and lawyers to ensure the Code and maternity protection
laws are implemented in more countries. 5
On October 28, 1986, President Corazon Aquino issued Executive Order No. 51
otherwise known as the Milk Code. The Milk Code", is a law that ensures safe and
adequate nutrition for infants through the promotion of breastfeeding and the regulation of
promotion, distribution, selling, advertising, product public relations, and information
services artificial milk formulas and other covered products.6
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the general public of products within
the scope of the ICMBS. Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if such materials are duly authorized
and approved by the Inter-Agency Committee (IAC).7
5 United Nation Childrens Fund, International Code of Marketing of Breast-milk Substitutes, available at
http://www.unicef.org/nutrition/index_24805.html (last accessed September 25, 2015).

6 Milk Code Philippine, What is Milk Code, available at http://www.milkcodephilippines.org/abouteo51.php


(last accessed September 25, 2015).

7 Pharmaceutical and Health Care Association of the Philippines vs. Duque III, 535 SCRA 265, 290 (2007).

On May 15, 2006, the Department of Health issued the Administrative Order (A.O.)
No. 2006-0012 entitled, Revised Implementing Rules and Regulation of Executive Order No.
51, otherwise known as the Milk Code, Relevant International Agreements, Penalizing
Violations Thereof, and for other Purposes (RIRR).

The Legislative Intent behind Section 2 of Article VII


Analysis and Conclusion
Recommendation