PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES V. HEALTH SECRETARY AND ORS.
Philippines
Title:
Pharmaceutical and Health Care Association of the Philippines v. Health
Secretary and Ors.
Court:
Supreme Court of the Republic of the Philippines
Date:
9 October 2007
CRC Provisions:
Article 24: Health and health services
Other International Provisions:
International Covenant on Economic, Social and Cultural Rights
Convention on the Elimination of All Forms of Discrimination Against Women
Universal Declaration of Human Rights
International Code of Marketing of Breastmilk Substitutes (ICMBS)
Domestic Provisions:
Constitution of the Republic of the Philippines 1987
Executive Order No. 51 (Milk Code)
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing
Rules and Regulations of Executive Order No. 51, Otherwise Known as The
“Milk Code,” Relevant International Agreements, Penalizing Violations
Thereof, and for Other Purposes (RIRR)
Case Summary:
Background:
This case concerns a petition challenging the validity of a Department of
Health (DOH) Administrative Order (RIRR), claiming that it contained
provisions, including a ban on the advertising of breastmilk substitutes, that
were not constitutional and went beyond the scope of the law it was
supposed to implement (Milk Code). The Milk Code gave effect to the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code
adopted by the World Health Assembly (WHA). The WHA had since adopted
several Resolutions to the effect that breastfeeding should be supported,
promoted and protected.
Issue and resolution:
Constitutionality of the provisions of the RIRR. The Court partially granted the
petition, declaring certain provisions of the RIRR that prohibited the
advertising and promotion of breastmilk substitutes and provided for
administrative sanctions not found in the Milk Code in contravention of the
Milk Code, and therefore null and void.
Court reasoning:
The Court considered whether certain international instruments are part of
the law of the Philippines. The Court noted that the CRC does not contain
specific provisions regarding the use or marketing of breastmilk substitutes.
Instead, the relevant provisions are contained in the ICMBS and various
WHA Resolutions. The ICMBS had been transformed into domestic law
through local legislation, the Milk Code, and consequently it is the Milk Code
that has the force and effect of law in the Philippines, and not the ICMBS per
se. However, the Milk Code did not adopt the provision in the ICMBS
absolutely prohibiting advertising of breastmilk substitutes, but instead
created the Inter-Agency Committee to regulate such advertising. By
contrast, the subsequent WHA Resolutions specifically prohibiting
advertisements and promotions of breastmilk substitutes have not been
adopted as domestic law. Moreover, such Resolutions do not form part of
customary international law. Instead, they may constitute “soft law” or non-
binding norms, principles and practices that influence state behavior (such as
the Universal Declaration of Human Rights).
On the issue of whether the the RIRR is in accordance with the Milk Code,
the Court found that sections 4(f) and 11 (prohibition on the advertising and
promotion of breastmilk substitutes) and 46 (providing for administrative
sanctions that are not found in the Milk Code) went beyond the DOH’s
authority and contravened the Milk Code, and were therefore null and avoid.
The Court found that the rest of the provisions of the RIRR are consistent
with the Milk Code. Finally, the Court dismissed the petitioner’s argument
that the RIRR is unnecessary and oppressive, and offensive to the due
process clause of the Constitution insofar as it amounts to a restraint of
trade, because trade must be subjected to some form of regulation for the
public good and public interests must trump business interests.