DOH wins breastmilk case vs multinationals

By Joel R. San Juan, BusinessMirror

Posted at Jun 13 2012 08:12 AM | Updated as of Jun 13 2012 05:04 PM

MANILA, Philipines - The Department of Justice has upheld the legality of a government memorandum prohibiting multinational firms that manufacture infant milk and other nutrition products in the country from using registered trademarks that may erode the efforts of the government to promote breast-feeding.

The justice department said the September 5, 2011, memorandum of the Department of Health (DOH) was aimed at “protecting public welfare.”
In a seven-page legal opinion on May 11, Justice Secretary Leila de Lima said the health department was the primary government agency given the authority to issue orders and regulations concerning the implementation of the government’s health policies.
De Lima also noted that Section 12 (b) of Executive Order 51, otherwise known as the Milk Code, gave the DOH the power to promulgate rules necessary for the proper implementation of the code.
The Supreme Court has also upheld the implementing rules that the DOH issued to carry out the objectives of the Milk Code, which includes “reasonable regulation of an industry which affects pubic health and welfare.”
“When it comes to matters concerning public health and safety, the DOH is the primary government agency in charge, and in view of the presumptions in favor of the regularity in the performance of official duty and functions and of the legality and validity of administrative regulations issued pursuant to law, said issuances remain effective unless and until declared otherwise by the courts, or amended, revised or revoked,” the DOJ ruled.
Health Undersecretary Gerardo Bayugo had sought the justice department’s legal opinion on whether the DOH could prohibit milk companies from using their intellectual property-registered trademarks in line with the provisions of the Milk Code and its IRR.
Bayugo made the request after the Infant and Pediatric Nutrition Association of the Philippines (Ipnap) wrote the DOH on December 12 last year seeking reconsideration of its memorandum.
Ipnap is a registered association composed of multinational companies from New Zealand, Switzerland and the United States that manufacture infant-nutrition products in the country.  It’s members include Abbot Laboratories, Fontera Brands, Mead Johnson Nutrition, Nestle and Wyeth.
The memorandum was addressed to the Food and Drug Administration (FDA), reiterating the DOH’s existing policies that prohibit the use of trademarks that contain health and nutrition claims that may undermine breast-feeding and breastmilk on the labels of infant formula.
Bayugo said the memorandum was issued after the Infant and Young Child Feeding (IYCF) 2008 data showed that the country has a very weak breast-feeding culture.
Based on the data, only 34 percent of Filipino infants less than six months of age exclusively breast-feed, thus, leading to under nutrition. It attributed the weak breast-feeding culture to the manufacturers and distributors of infant formula and other breastmilk substitutes that have taken undue advantage of the loopholes in existing laws relative to breast-feeding and infant and young-child feeding.
It added that milk companies are able to glamorize infant formula and breastmilk substitutes through false health claims and other attractive marketing strategies that are deemed to undermine breast-feeding.
In its letter to the health department, IPNAP said the memorandum and other regulations issued by the DOH violated the Agreement on Trade-Related Aspects of Intellectual Property Rights, and the Agreement on Technical Barriers to Trade.
But, the DOJ countered that Ipnap’s members are not being prohibited from engaging in business or in advertising their products, provided their marketing materials, including the labels of their milk products comply with the rules issued by the DOH.
Ipnap also said there is no basis in fact and law that the trademarks used as milk labels fall under the prohibitions provided under the rules.
It said that prohibiting a trademark owner the right to use his own registered mark in the labels of its milk products was tantamount to deprivation of property without due process of law.  But the DOJ said “deceptive marks and misdescriptive marks are absolutely unregistrable.”
“Ipnap members companies, in the exercise of their property rights, also have a responsibility to the public. Just because they have the marks containing health and nutrition claims trademarked does not mean that their use cannot be regulated for the greater good,” the DOJ said.