Everybody is happy.
The United Nations Children's Fund (UNICEF) Philippines declared its delight with the Supreme Court October 9, 2007 decision to lift the temporary restraining order on the Revised Implementing Rules and Regulations (RIRR) of the National Milk Code (EO51). Arugaan decried as untruths the stream of news reports claiming that the Supreme Court decision was a blow to breastfeeding advocates. Neonatologist and pediatricians believe the Supreme Court decision was a major victory for mothers and infants.
So why is ARCSEA crying over spilt mother's milk?
Because ARCSEA believes we were duped. We were taken for a ride. The heart of the matter in what ARCSEA deems as a major setback in the battle for the protection of exclusive breastfeeding among infants from birth to six months lies precisely in the sections stricken out by the Supreme Court.
Viewed by breast feeding advocates world wide as a crucial test of corporate social responsibility toward consumers, this case of PHAP versus the Department of Health shows how rich and powerful multinational milk companies , in this case represented by the Pharmaceutical and Health Care Association of the Philippines (PHAP), can lay claim to the justice system in furtherance of their profits objectives, all at the expense of the lives of at least 16,000 infants annually, especially those from the marginalized sectors of society.
Background
• In May 2006, the Revised Implementing Rules and Regulations of the Milk Code was passed by the Secretary of Health. The RIRR was crafted to strengthen the "teeth" of the Milk Code and enable the implementation of the law to be really protective of children's right to health and nutrition.
• In July 2006, the Pharmaceutical Health Care Association of the Philippines (PHAP) filed a suit against the Secretary of Health and petitioned the Supreme Court for a temporary restraining order or TRO. The Supreme Court denied the TRO.
• In August 2006, the Supreme Court overturned its own decision and granted a TRO in favor of PHAP's request. Atty. Fely Aquino represented PHAP, wife of Sen Joker Arroyo who, in 1986, signed the Milk Code.
• On October 9, 2007, the Supreme Court found the rest of the RIRR in consonance with the Milk Code while unanimously declaring null and void the following provisions: (1) SECTION 4(f): Advertising, promotions, or sponsorship of infant formula, breast milk substitutes and other related products are prohibited; (2) SECTION 11: No advertising, promotions, sponsorships or marketing materials and activities for breast milk substitutes intended for infants and young children up to twenty four (24) months; and (3) SECTION 46: The imposition of administrative sanctions against any person, juridical or natural, found to have violated the provisions of the Code and its Implementing Rules and Regulations amounting up to PhP1 million for the 5th and succeeding repeated violations (maximum).
ARCSEA is crying over spilt mother's milk because the Supreme Court could have penned a milestone in Philippine jurisprudence by upholding en toto the RIRR but it chose not to and buckled down under the pressure of profit-taking giant milk companies. Exceptions to advertisements may now be allowed by an "Inter-Agency Committee." ARCSEA's take on this is that at this time when corruption in government is such a hot and real issue, there is big room for doubt how long and how steadfast members of the Inter-Agency Committee can withstand attempts of bribery to facilitate advertisements that undermine breast feeding practices, especially among poor and marginalized mothers. Moreover, aggressive promotional campaign for infant formula which has been identified as a major reason why mothers are discouraged from breastfeeding their babies.
The Revised Implementing Rules and Regulations also intended to give "stronger teeth" to the Milk Code, with Section 46 which provides for administrative sanctions and a heavy fine (PhP1million) for violators. Who among the big multinational milk companies will be afraid of violating the RIRR when the strongest penalty imposed on violators at the moment is a mere "slap in the wrist" criminal penalty of two (2) months to one (1) year imprisonment and a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000) or both? A fine of P30,000 is a drop in the bucket in the face of how much Filipino mothers are estimated to spend annually on infant formula (about US$469 million). By striking out the "teeth" of the RIRR, the Supreme Court sent a message to mothers, children, health care professionals, child rights advocates and the artificial infant milk industry that indeed, in the Philippines, the logic of profit rules at the expense of at least 16,000 infant deaths a year. Where is justice in that?