Theme 5: Strengthening, enforcing and monitoring legislation in Scotland that supports the WHO International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions
Recommendation 5: Establish a long-term plan of work to strengthen the formula and follow on milk regulations, including full adoption of the International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions ('The Code') into legislation by strengthening and monitoring Infant Formula and Follow-on Formula (Scotland) Regulations 2007
Relevant BBF Scotland Gear scores: Legislation and Policies: 1.6; Political Will: 3.0; Advocacy: 2.0; Promotion: 1.7
Why is this recommendation necessary?
Misleading marketing of breastmilk substitutes undermines breastfeeding and prevents families from receiving clear, evidence based information about infant feeding. The International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions ('The Code') is deemed an effective mechanism for action, with robust legislation and enforcement associated with higher rates of exclusive breastfeeding. Yet, despite international calls for stronger regulation of the breastmilk substitute industry through implementation of the Code on a human rights basis (for example, the International Convention on the Rights of the Child advocates 'to the maximum extent possible the survival and development of the child'), progress remains slow. A 2018 joint report by WHO, IBFAN and Unicef found that most countries continue to lack an effective and sustained response to the persistent marketing practices of manufacturers and distributors of breastmilk substitutes and other foods for infants and young children. To combat continued violations, the authors call for greater political commitment to deliver and enforce comprehensive legislation alongside adequate national investment to ensure implementation and accountability.
In Scotland, there are two areas of legislation relating to infant feeding derived from a European Union Directives, developed and approved by the EU Member States, including the UK. The legislation covering foodstuffs for particular nutritional uses (PARNUTS 2007) covers 4 food areas: Infant and follow on formulas; Baby foods; Foods for medicinal purposes; and Total diet replacement and weight management. These are enforced under a statutory instrument, Foods for Specific Groups (Scotland) Regulations 2016, meaning that it is a criminal offence not to abide by the provisions of the EU regulations. The Baby Food regulations are not yet published and the Infant Formula and Follow on regulations will not come into effect until 2020-21 meaning that since they are based on EU regulations, there will be potential to relegislate under Scottish jurisdiction due to the departure from the European Union.
The existing regulations incorporate some, but not all of the Code, into law despite the UK having one of the biggest formula milk markets in the world. The WHO emphasise it is important to ensure there are meaningful safeguards on the marketing of all breastmilk substitutes. However, current UK regulations include marketing restrictions for infant formula, but do not restrict the marketing of infant milks for children aged 6 months and over. Consequently, widespread 'regulation-compliant' advertising continues, providing misleading information for both breast and bottle-feeding parents.
The Code is implemented more fully at a maternity and community level through Scotland's 100% accreditation with the Unicef UK Baby Friendly Initiative. Only the elements that sit within the remit of Unicef UK Baby Friendly Initiative or the legislative framework can be enforced, where NHS staff can be disciplined by an employer for violation. Unicef UK Baby Friendly Initiative accredited settings should ensure that there is:
- No advertising for infant feeding products anywhere within public service
- No contact between company personnel and pregnant women or mothers
- No items bearing company logos on public service premises or used by its staff
- No free samples to health professionals or mothers
- Only scientific and factual information, free from commercial bias, used in the care of babies and their parents.
Violations are dealt with by the Advertising Standards Authority for advertising of formula, while marketing and promotional violations are dealt with by Local Authorities and Environmental health agencies at a local level. There are few documented cases and none noted in Scotland. In terms of enforcement, there is no Improvement Notice warning systems for companies to comply with the regulations, rather a direct move to prosecution. There are no documented cases of enforcement in Scotland.
As part of a call to address the low breastfeeding rate, Unicef UK calls on all devolved governments to adopt the International Code of Marketing of Breastmilk Substitutes and all subsequent resolutions in full. Improving Maternal and Infant Nutrition: a Framework for Action also calls for action on regulation and monitoring of the Code across the NHS and Health Boards in Scotland.
The details of cases where the Code has been fully adopted into legislation are provided below:
What do we want to happen?
- Scottish Government Ministers, officials, and all public sectors employees should adopt the International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions principles within their work place and in dealings with the public and private sector through a Code of Conduct.
- When the legal opportunity arises, legislators and policy-makers analyse and address weaknesses or gaps in their existing legislation, and act accordingly to extend the legislation under the International Code of the Marketing of Breastmilk Substitutes and subsequent WHA resolutions and associated legislation, to promote and protect breastfeeding, and to eliminate inappropriate marketing practices.
- When the legal opportunity arises, revise regulation for Scotland to include all provisions of the International Code of the Marketing of Breastmilk Substitutes and subsequent WHA resolutions.
- Policy makers translate these obligations into clear statements of support, allocation of adequate budgets, and creation and application of budget-oversight mechanisms
- Robust and sustainable monitoring and enforcement mechanisms are put in place to implement national laws and regulations aimed at eliminating inappropriate marketing practices.
How will this be done?
- Leadership by Food Standards Scotland in partnership with Scottish Government and key expert stakeholders through a series of scheduled small meetings (free from commercial interests) to discuss the missing provisions and how to adopt them
- This work must involve all relevant government agencies authorized to monitor and enforce various elements of the Code and Guidance
- It is also critical that it is adequately funded and sourced with knowledgeable staff, and should allow for public engagement and scrutiny, including through the periodic release of implementation reports
- With Scottish Government leadership, a relevant Code of Conduct should be established for the above mentioned employees and organisations, in line with all provisions of the International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions
What is the likely impact of this recommendation?
- Families will have access to accurate information about infant feeding, free from industry influence.
- The NHS for Scotland, Health Boards and Local Authorities will deliver trusted, evidence-based information which is free from industry influence to members of the public and staff, with all appropriate staff and organisations working within the Code of Conduct.
- Violations of the International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions will be identified and sanctions delivered though a robust monitoring and enforcement system.
- Breastmilk substitute advertising will fall within the standards of the International Code of Marketing of Breastmilk Substitutes and subsequent relevant WHA resolutions.
Strengthening, enforcing and monitoring legislation in Scotland that supports the International Code of Marketing of Breastmilk Substitutes & subsequent WHA resolutions
Aim: to establish a long-term workplan to enforce and monitor the Code* through a robust framework and deliver its full adoption
Working with Scottish Government, the Food Standards Scotland and key stakeholders, this recommendation sets out to deliver the following objectives
- To devise a workplan to analyse and address weaknesses or gaps in the existing legislation under the Code*, working towards full implementation
- To translate these obligations into clear statements of support at a policy level
- To embed a Code of Conduct for all Ministers, officials, and public sectors employees to adopt the Code* principles in their work and dealings with the public
- To allocate adequate budget and a budget oversight mechanism
- To deliver robust monitoring and enforcement mechanisms
What will success look like?
Based on best evidence, this would result in…
- Women will have access to accurate infant feeding information
- Breastmilk substitute advertising will fall within the Code standards
- All ministers, public sector staff and organisations will work within the Code standards
- Violations of 'the Code' will be identified and meaningful sanctions delivered
* The Code: International Code of Marketing of Breastmilk Substitutes & subsequent WHA resolutions Government