Marketing infant formula

Times of Malta, Business Section, December 2012

Anthia Zammit LL.B, LL.D

Infant formula – milk and soy-based products designed to nourish babies – is an industry reportedly worth $30 billion, and set to rise as the working woman gets busier in every part of the globe. Or will it? Legislation protects the woman’s right to breastfeed her child, even at the workplace, but the reach of the law’s long arm does not stop there.

The 1981 World Health Organisation’s International Code of Marketing of breast-milk substitutes initiated legislators’ global commitment to maintaining and reviving the practice of breastfeeding in the best interest of infant health and nutrition – primarily by regulating the sales promotion of infant formulas.

This commitment was ultimately enshrined in legislation, notably European Directive 2006/141. This was transposed to regulations under Malta’s Food Safety Act. Infant formulas and follow-on formulas (the principal food for infants when complimentary feeding is introduced in a progressively diversified diet) may be placed on the market only if they comply with these regulations.

An infant (defined by the regulations as a child under 12 months) has particular nutritional requirements, which must be met to ensure proper growth and well-being. The WHO recommends that infants in good health be exclusively breast-fed for the first six months, and continued to be breast-fed up to two years of age.

Where this is not possible, infant formulas (defined as “foodstuffs intended for particular nutritional use by infants during the first months of life and satisfying by themselves the nutritional requirements of such infants until the introduction of appropriate complementary feeding”) is the only product that can be sold, marketed or represented as suitable for satisfying, on its own, the nutritional requirements of healthy infants during the first months of life, until the introduction of suitable complementary feeding. This is, however, a regulated niche.

Maltese law imposes restrictions on the advertising and sales promotion of infant formulas. Point-of-sale advertising, distribution of samples or any other promotional activities marketing infant formula directly to the consumer at retail level, including special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales are explicitly prohibited.

Manufacturers and distributors of infant formulas are also not allowed to provide to the public or to pregnant women or members of their families free or low-priced products, samples or any other promotional gifts, either directly or indirectly through the health care system or health workers. Health care professionals also face restrictions in the provision of samples and promotional materials.

The Food Safety Act explicitly provides that “where there is reasonable cause to believe that the provisions of the Food Safety Act or any regulations made thereunder have been contravened, the police shall, on report of the health authority, institute criminal proceedings against the offender before the competent court”. The penalty on conviction of a first offence is a fine of up to €4,658.75 and a term of imprisonment not exceeding two years, while conviction of subsequent offences bears a fine of up to €11,646.87 and a term of imprisonment not exceeding four years.

It has long been recognised, that infant malnutrition is sadly rooted in poverty, lack of education and other social problems. The health of infants is inextricably linked to the health, nutrition and socioeconomic status of women – and their role as mothers.

The law’s objective is ultimately to balance the accessibility of adequate and nutritious infant formulas with the protection and encouragement of breastfeeding as an important aspect of infant health.

The regulation of infant formulas marketing is a stark example of consumer protection during a vulnerable period (i.e. after giving birth) and raises the issue of manufacturers’ and distributors’ legal obligations to their consumers.