In Part 2, David traced the history of the Code, from the early recognition that companies were promoting breastmilk substitutes products as equal to or better than human breastmilk to the international movement that finally led the World Health Assembly to adopt the Code in 1981. Decades of tireless activism led up to the adoption of the Code - and only similar vigorous advocacy and awareness raising will protect children and mothers, families and communities from harmful marketing practices.
By David Clark
During a special Facebook Live event on June 9, 2021, David responded to questions about the Code from around the world. WATCH the Q&A recording below.
As a lawyer at UNICEF, my role in supporting implementation of the Code was formally defined. I went around the world advocating for the Code to people in government – legislators, policy makers, officials charged with protecting and promoting the health of children and mothers – and a variety of stakeholders committed to the same goal. I participated in countless capacity development workshops and meetings for lawyers and breastfeeding advocates and supported Governments in guiding their draft regulations through the sometimes-treacherous legislative process.
It could be a lengthy process – I worked on and off with the Government of Thailand for over 20 years before their regulations were finally adopted in 2017. I learned to be patient and admired the continued energy and tenacity of those determined to protect the rights of mothers and children in their countries.
Rarely without intrigue and drama, my work provided an unparalleled vantage point for learning about the difficulties of implementing the Code. Perhaps above all, I learned that the industry will really stop at very little to pursue its profits.
Everyone has a role to play to protect and promote the welfare of children, mothers and families – their human rights. That’s our collective duty as human beings. The more we each contribute, the more likely we can eliminate inappropriate and harmful marketing of BMS.
We should be inspired and encouraged by the achievements to date. After the introduction of infant formulas in the 1860s up until the adoption of the Code, breastfeeding rates dropped precipitously around the world (see graphic), from an estimated 70% to just 14%. But over the past 15 years, breastfeeding rates have been slowly recovering – to about 44% for exclusive breastfeeding in 2019. This progress is impressive given the efforts and expenditures of the industry over this period. The fact that we've been able to increase breastfeeding rates is quite astonishing. Of course, much remains to be done to increase the prevalence of breastfeeding around the world.
The phrase “if you see something, say something” comes to mind when I reflect on how some breastfeeding advocates have been able to get large multinational companies to stop engaging in unethical promotional tactics.
I vividly recall a member of a small breastfeeding support group in the Caribbean calling me to complain that a large U.S. baby food company was directly promoting its products, targeting mothers in a local supermarket, in violation of the Code (although not of the local regulations, which are still inadequate). The advocate implored me: “Could you please do something about this?”
She had been able to describe to me the marketing trick being used and why it should be considered a violation of the Code. So, I suggested that she write to the local division of the company immediately, copying the head office in the U.S., as well as WHO and UNICEF.
She called me back a few days later, jubilantly reporting that the company had ceased the offensive campaign the day after receiving her communication. I think she found it hard to believe that a small group of mums had put a stop to the unethical activities of a huge, powerful corporation. But it can be done.
The role of government
Elected representatives, relevant ministers, members of cabinet and civil servants need to recognize their state’s legal obligations under the Convention on the Rights of the Child to protect, promote and support breastfeeding and fully implement and enforce the Code. While at UNICEF we worked closely with the Inter-Parliamentary Union and other partners to raise awareness of the role of Parliamentarians in realizing the nutrition rights of women and children. This included contributing to the recently released Handbook for Parliamentarians on Food Systems and Nutrition.
The 2020 WHO, UNICEF, IBFAN Code Status Report provides additional practical recommendations, including a detailed analysis of weaknesses or gaps in existing legislation, including a lack of robust and sustainable monitoring and enforcement mechanisms that include the availability of deterrent sanctions in the case of violations.
Health workers need to be made aware of their obligations under the Code, particularly their responsibility to promote and support breastfeeding and keep the baby food industry at arm’s length to avoid being utilized to promote their products unwittingly as part of the “endorsement by association” and “manipulation by assistance” tactics. The corporate sponsorship of professional associations and scientific meetings needs to cease immediately.
Civil society has played a huge role in holding the baby food industry’s feet to the fire. From Filipino mothers baring their breasts outside the Supreme Court in Manila to draw attention to the BMS industry’s attempt to challenge the Health Department’s authority to implement strengthened Code rules and regulations, to IBFAN’s regular monitoring reports, NGOs have had major successes in alerting the public and governments to the shenanigans taking place around the globe. Organizations like Save the Children, HKI’s Arch project and Alive & Thrive have also published excellent reports in recent years, an important way of raising awareness.
This needs to continue, and NGOs need to remain independent and free from the baby food industry. No-one ever bites the hand that feeds him, as industry knows very well, and it is no coincidence that NGOs were included along with the health care system when recommendations were made on avoiding conflicts of interest in the 2016 WHO guidance on ending inappropriate promotion of foods for infants and young children. Hence the concern over, for example, Nestle’s 10 million Swiss Franc donation in 2020 to the International Federation of the Red Cross and Red Crescent Societies.
A recent example of successful civil society intervention occurred in 2019 when more than 100 doctors and 13 health groups wrote to the Royal College of Paediatrics and Child Health (RCPCH), urging it not to accept sponsorship from Nestlé, Nutricia and Danone for its first international conference. As a result of the international media coverage, at its subsequent Annual General Meeting, the College resolved “to decline all future funding from Formula Milk companies.”
Media outlets that run advertisements that violate the Code need to be made aware of what’s at stake when they promote the industry’s products: doing so makes them complicit in human rights violations and contributes to placing children’s health and survival at risk.
At the same time, journalists in the media have an important “sense-maker” role to play and can help the public understand the value of breastfeeding not only to infants and mothers – but to all of society. They can powerfully expose Code violations wherever they occur, too.
I’ll never forget a meeting with health center staff in Moldova: one of the doctors walked in wearing a white coat emblazoned with the Nestle logo. She was clearly dedicated to her job and the pregnant women and mothers she was caring for, and did not understand that this “manipulation by assistance” on the part of the company was undermining her obvious support of breastfeeding. Imagine you were a mother just having given birth in that facility – and the woman who just delivered your baby is greeting you wearing the logo of a BMS manufacturer. That should be a front page story.
Understanding the industry’s tactics
Such tactics are, sadly, quite common. In my 25 years with UNICEF, I personally experienced many of the ways the baby food industry tries to advance its goal of unfettered marketing. I’ve summed up the main ones here – because to protect and promote breastfeeding, it’s important to know how they work.
Utilizing political influence to prevent or delay the adoption national regulations to implement the Code
The rearguard actions of the BMS industry over the years have been many and varied, all aimed at preventing or delaying the adoption of effective national Code regulations, or weakening proposed instruments.
For example, when the Government of the Philippines introduced strengthened revised implementing rules and regulations (RIRR) to its Milk Code in 2006, the Pharmaceutical and Health Care Association of the Philippines, whose members included three U.S. BMS manufacturers, petitioned the Supreme Court in Manila to annul the RIRR, disputing the authority of the Department of Health to issue the RIRR and the validity of a number of its provisions. It also applied for a Temporary Restraining Order to stop the department from implementing the RIRR pending the outcome of the case. And although the Supreme Court initially rejected the Association’s application for the order, it reversed that decision a month later.
During that period, the U.S. Chamber of Commerce had written to the President of the Philippines, warning her of “the risk to the reputation of the Philippines as a stable and viable destination for investment” if she did not re-examine the RIRR. In the end, the Court upheld only two of the Association’s complaints and lifted the order.
When the Government of Vietnam was in the process of strengthening its regulatory framework in 2012, the U.S. Embassy in Hanoi contacted the Chairman of the National Assembly to warn of its concerns over the planned expansion of regulation of formula milk products from 0-12 months to 0-24 months. Luckily for mothers and babies in Vietnam, the Government went ahead with the strengthened regulations.
The Governments of Viet Nam and the Philippines resisted what the Health Secretary of the latter country referred to as “veiled” threats. Others may not be so brave. Governments need to be reassured of the substantial scope of their regulatory authority (and indeed human rights obligations) when it comes to protecting public health.
Unfortunately, veiled threats often take place behind closed doors, but when they are discovered, they should be exposed and condemned. We should never allow business to be put before babies.
Engaging adversaries in dialogue to divert attention and resources
Another tactic adopted by industry is to try to engage potential critics or adversaries in dialogue. This can divert energy and resources from efforts to work on improved regulation, monitoring and enforcement, while industry tells its critics that it is working things out with the organization or NGO involved.
"Veiled threats often take place behind closed doors"
UNICEF and WHO went through a series of meetings in the early 90s with the International Association of Infant Food Manufacturers, but realized that they led to no improvement in the companies’ commitment to or respect for the Code. In the meantime, however, the industry was taking advantage of the “blue-washing” effect – pointing to the fact they were working with WHO and UNICEF on improving Code implementation to improve their standing with consumers.
In my opinion, the recent “Call to Action” issued by eight NGOs and UN agencies inviting all manufacturers BMS to make a public commitment to full compliance with the Code by 2030, is another example of a flawed attempt to improve Code compliance through dialogue and voluntary means. It has not resulted in the hoped-for commitments while wasting precious resources that could have been spent strengthening Code implementation at the national level.
Public health advocates and organizations engaged in work to improve infant and young child nutrition outcomes need to be aware of the cost of sitting down with industry in an attempt to tackle public health problems.
“What do you think would happen if a 4-foot-tall, 80-pound person is matched up with a 9-foot-tall, 500-pound person for a three-legged race?” asked Andy Bellatti, in an interesting article in 2014. “And imagine that while the 4-foot-tall individual has a goal of going left, their giant partner is intent on going right. There is no doubt that the latter’s sheer size and strength would dominate, and the 4-foot tall partner would be dragged along.”
Precious resources should be focused on supporting the implementation and enforcement of effective national Code regulations. This has proven to be the only way to actually change corporate behavior for the better – and the companies know that and fear it.
"Public health advocates and organizations engaged in work to improve infant and young child nutrition outcomes need to be aware of the cost of sitting down with industry."
Utilizing public health crises to prey upon parental fears
Similarly, BMS manufacturers sought to take full advantage of COVID-19 to raise fears in mothers’ minds about breastfeeding and promote their substitutes, in violation of the Code. In “Old Tricks, New Opportunities,” researchers identified broad themes used in the marketing tactics.
As the title of that paper indicates, the industry’s use of public health crises is an old ruse. The HIV pandemic saw the BMS companies attempt to persuade governments that given the risk of transmission of HIV through breastmilk, all HIV positive mothers should be given formula. Under the circumstances, they argued, the Code was no longer valid.
This ignored two key facts: the first being that the risk of death from not breastfeeding was far greater than the risk of transmission of HIV through breastfeeding (particularly exclusive breastfeeding) in the settings of poverty where the majority of HIV-positive women lived; the second being that the Code remained fundamental as it seeks to ensure that when BMS are necessary and used, they are prepared and fed as safely as possible. We often have to remind people that the Code was designed to protect all babies, no matter how they are fed.
International policy guidance was thus developed to enable mothers to determine which option would be the best for their baby. The guidance was also clear that where the use of BMS was considered acceptable, feasible, affordable, sustainable and safe, they should be procured and distributed in accordance with the Code, and not through supplies donated by the BMS industry, in order to avoid spillover of formula feeding to those infants who would benefit from, and whose lives might depend upon, breastfeeding. Since then, with the availability and recommended use of antiretroviral drugs to prevent postnatal transmission of HIV through breastfeeding, many countries have adopted the approach of promoting and supporting exclusive and continued breastfeeding and the provision of lifelong antiretroviral treatment.
Utilizing social media in multiple formats to influence parents
One of the more sinister developments in recent years is the prominent use of digital marketing to reach out to and target parents with promotional messages. Since the Code set out to prohibit all forms of promotion, this would include digital means, although regulators struggle to make regulations relating to the digital environment compatible with regulations in the offline environment. This requires further technical support and advice, something that the World Health Assembly should address as part of its efforts to push for effective Code implementation.
"Multinational baby formula companies, such as Nestlé and Danone, are using social media to market to consumers in South East Asia in ways that raise serious concerns they may violate World Health Organization (WHO) guidelines," according to this report published the the Bureau of Investigative Reporting.
The use of social media is particularly troubling – because we know how powerful it is. Platforms like Facebook, TikTok, Instagram, Weibo, Twitter, and all the others, should prohibit all forms of promotion of BMS, feeding bottles and teats. They already do this with various types of other content that offend human dignity and international human rights standards. What could be more offensive than violating the human rights of mothers and babies?
In Part 4: The way forward, David presents a roadmap to achieving full implementation of the Code.