Wyeth/SMA convicted of illegal infant formula advertising

“A cynical and deliberate breach of the Regulations” says Judge

31 July 2003

(News reports: Guardian 1/08/03, Birmingham Post 31/07/03)

Wyeth, parent company of SMA Nutrition, has been found guilty of illegal advertising after an 8-day trial at Birmingham Magistrates Court, which saw the transnational corporation (the second largest baby milk manufacturer in the world and a subsidiary of American Home Products) challenging the UK government’s right to regulate the marketing of baby milks. The case effectively outlaws similar advertisements by other baby food companies, including Cow & Gate, Heinz/Farley and Milupa which were examined by the court and will cause a shake up in the industry.

(Click here for a jpg of one the offending advertisements. This appeared in Prima Baby magazine in July 2001).

The district judge, Mr Ross, said: “The Defendants have deliberately ‘crossed the line’ in an effort to advertise direct to a vulnerable section of society. This is a cynical and deliberate breach of the regulations.”

Wyeth/SMA attempted to argue that the UK regulations ban on advertising to the general public fetters the free movement of goods, falsely claiming that companies, such as Nestlé, could not enter the market. In its evidence Wyeth claimed that Germany permits advertising of infant formula, and attempted to exclude evidence that many other EU countries, such as France, the Netherlands, Denmark and Luxembourg, have banned it, as specifically permitted under European legislation. If it had won on this point (or does so on a possible appeal), the UK government could have been forced to ensure that its legislation is no stricter than the weakest of any other country. (Click here for a chart setting out the regulations in EU member states).

The Judge said: “In my view the Manufacturers are playing on a ‘level playing field’…. It is clear that is important ‘to uphold the law of the land in the public interest bearing in mind the stability in our society’.”

When Nestle attempted to weaken the Indian Law, the Indian Government resisted the pressure and significantly strengthened its regulations. Health campaigners are calling on the UK Government to take a similar principled stand.

The Judge fined Wyeth/SMA £4,000 for each of four advertisements, and the maximum of £5,000 for the last two which could have been withdrawn after a warning from Trading Standards officers, but were not: a total of £26,000 plus costs of £34,808. He found that Wyeth/SMA had not exercised due diligence and that SMA Director, Graham Crawford, had been “extra-ordinarily evasive throughout his cross-examination and that his expertise was rather less than he wanted me to believe.”

The UK has breastfeeding rates that are amongst the lowest in Europe, and was criticised by the UN Committee on the Rights of the Child last year on this point (click here for press release). The UN Committee specifically called on the government to implement the International Code of Marketing of Breastmilk Substitutes, adopted by the World Health Assembly in 1981, which bans all promotion of breastmilk substitutes. This was another point which Wyeth/SMA failed to refer to.

Patti Rundall, Policy Director of Baby Milk Action said:

"This case has serious implications for infant health and Trading Standards are to be applauded for their courage in pursuing it, especially as they were up against the massive legal and financial resources available to this pharmaceutical giant. We hope that Wyeth will accept the ruling and not cause further expense to the public purse by attempting to have the UK ban on advertising scrapped."

In May the UK Government implemented the WHA 2001 Resolution recommending exclusive breastfeeding for 6 months, but has so far failed adequately address the harm cause caused by marketing. In its press release the DH stated that: “there are proven health benefits to breastfeeding for both child and mother in the short and long term. Babies who are breastfed have a lower risk of gastro-enteritis and respiratory and ear infections. There is some evidence that long term breastfeeding may help mothers lose the excess weight they gain during pregnancy and children who are breastfed may be at lower risk of becoming obese later in childhood. Also the risk of pre-menopausal breast cancer in mothers is reduced the longer they breastfeed.”

For more information contact:

Patti Rundall on : 07786 523493 or Mike Brady: 0798 6736179
Baby Milk Action, 23 St Andrew's St, Cambridge, CB2 3AX.

Notes for editors

  1. The Judges quotes are taken from the written judgement.

  2. Mr. Graham Crawford, Director of SMA Nutrition, became head of the UK industry body the Infant and Dietetic Food Association (IDFA) about 18 months ago, and led the attack on the law on behalf of the industry.

  3. SMA placed what it described as “information pieces’ in parenting magazines in 2001 and denied that they referred to any specific product. This argument was undermined by SMA’s own expert witness, Professor Alan Lucas, who stated the list of ingredients alone was enough to identify the product, let alone the inclusion of the SMA logo.

  4. Professor Lucas sat with the defence team throughout the trial and led the attack on the UK regulations. Professor Lucas works closely with the baby food industry and much of his work is funded by it. He is the named inventor on several patents filed by baby food companies, including Farley's, whose similar advertisements were cited in the case.

  5. The UK Infant Formula and Follow-on Formula Regulations 1995 (text available here) are more limited much than the World Health Assembly marketing standards (overview and text available here). The Regulations permit advertising in the health care system, whereas the World Health Assembly Resolutions ban it, requiring companies to provide scientific and factual information only to health workers. The wishes of UK health worker bodies and health experts were ignored by the government when the law passed through Parliament. It was opposed at that time by Tony Blair as leader of the opposition. The Labour Party Administration has not yet acted on the UN instruction to bring in legislation in line with the World Health Assembly standards.

  6. Leading health professional and voluntary bodies, working together as the Baby Feeding Law Group UK (see http://www.babyfeedinglawgroup.org.uk/), are calling on the UK Government to strengthen UK legislation and fully implement the International Code of Marketing of Breastmilk Substitutes and subsequent, relevant World Health Assembly Resolutions.

  7. WHO in its report on Diet and Physical activity has stressed the benefits of breastfeeding in relation to reducing obesity, heart disease, cancer and other non-communicable diseases – which are fast overtaking infectious diseases as the worlds biggest killers.

  8. The SMA advert violated the law and the International Code on many counts, not only in the fact that it was an advertisement displayed outside the health care system. The advert used health claims, and promoted the use of a company ‘Careline’ providing direct access between company employees and parents.

  9. SMA is not alone in challenging the legitimacy of a baby milk marketing law after being prosecuted. In 1995 Nestlé was taken to court in India over an alleged labelling violation, issued a Writ Petition against the Indian Government in an attempt to have key parts of the Indian Law struck down. The attempt failed when in May this year the Indian Government did the opposite and radically strengthened its law, banning promotion of all foods for infants under 2 years of age.

  10. Companies in the UK spend at least £12 million per year on booklets, leaflets, and other promotions, much in the guise of ‘education materials’ - aprox £20 per baby born. The Government spends about 14 pence per new-born each year promoting breastfeeding.

  11. The UK Infant feeding market is currently £370 million – an increase of £52 million since 1998. (Eggleston 2002) The Baby milk market is £150m per year. Main companies: Wyeth/SMA (owned by US company American Home products) (40%) Cow& Gate (30%) owned by the Dutch company Numico The Global market for baby milks and foods: US$ 17 billion (ref Euromarket 2001) and growing by 12% each year.