Does Nestlé's
Monitoring Report Comply with The International Code?
A Legal Evaluation
of The Nestlé Report "Nestlé Implementation
of the WHO Code" by a Consultant for The International
Baby Food Action Network (IBFAN) and The Geneva Infant Feeding
Association (GIFA)
April 2000
Contents
1.
Summary of the Evaluation
The International
Code of Marketing of Breast-milk Substitutes provides for
monitoring its application by WHO Member States (Article
11.2), and for self-monitoring by manufacturers and
distributors of breast-milk substitutes and other products
covered by the Code (Article
11.3).
Nestlé
submitted a report entitled "Nestlé Implementation
of the WHO Code (International Code of Marketing of Breast-milk
Substitutes) Official Response of Governments",
to the Director-General of WHO in July 1999, alleging self-monitoring
in accordance with Article 11.3 of the International
Code. The criterion for self-monitoring under Article
11.3 of the Code is clearly laid down, namely any monitoring
should be in accordance with the principles and aim of the
Code. The criterion used by Nestlé in its alleged
self-monitoring is what the governments endorse and accept
as the interpretation of the International Code in their
countries. Moreover, instead of investigating and inspecting
the marketing practices of its own agents, marketing personnel,
subsidiaries or any other entity working for Nestlé,
the Company approached health ministries in 54 Member States
of WHO and asked them to inform it of any violation of the
International Code. The ministries of health were
also asked to confirm, in writing, Nestlé's compliance
with the Code. Nestlé then used these replies as
written evidence of its compliance with the International
Code.
| As will
be seen from the evaluation report, neither the criterion
used by Nestlé for its alleged self-monitoring,
nor its approach to self-monitoring is in conformity
with Article
11.3 of the International Code. |
Moreover, the
replies from the ministries of health cannot be considered
as written evidence of compliance with the International
Code, because a large number of them is based on Nestlé's
Instructions, which differ considerably from the International
Code in many aspects. In addition, the wording of many
of those replies does not support the claim made by Nestlé.
At best, these replies could be considered as indicating
monitoring by Member States of WHO under Article
11.2 of the Code.
Any self-monitoring
by manufacturers and distributors of products covered by
the International Code should meet three very important
principles laid down by the World Health Assembly, namely
transparency, independence and freedom from commercial
influence.
The Nestlé
Implementation Report does not constitute compliance with
Article 11.3 of the International Code. At best,
it is no more than an exercise in public relations.
2.
Introduction
Nestlé
submitted a report to the Director-General of the World
Health Organization (WHO) in July 1999, entitled "Nestlé
Implementation of the WHO Code (International Code of Marketing
of Breast-milk Substitutes) Official Response of Governments",
(Nestlé Implementation Report). This Report has been
widely distributed by Nestlé, it would appear, to
officials of ministries of health of Member States of WHO,
non-governmental organizations (NGOs), various health care
institutions and professional bodies interested in the promotion
of breast-feeding. It has also been widely publicised, including
on the Internet.
The present document
is the legal evaluation of the Nestlé Implementation
Report by the International Baby Food Action Network (IBFAN),
and the Geneva Infant Feeding Association (GIFA). This legal
evaluation is carried out against the background of the
International Code of Marketing of Breast-milk Substitutes
(International Code), the preparatory work of the
International Code and the relevant resolutions of the
World Health Assembly (WHA) subsequent to the adoption of
the International Code.
| This
legal evaluation is intended to be objective, without
any recrimination, and in the interest of the protection
and promotion of breast-feeding and of the health
of infants all over the world. |
It is also intended
to assess, how far, if at all, the Nestlé Implementation
Report really complies with the International Code on self-monitoring
by manufacturers and distributors of the products within
the scope of the Code. Nestlé is one of these manufacturers
and distributors.
3.The
Regime of Monitoring under the International Code
Article
11
of the International Code envisages two types of
monitoring the application of the Code, namely monitoring
by Member States, and self-monitoring by manufacturers and
distributors of products covered by the Code. So far as
State-monitoring is concerned, it is provided for in
Article 11.2 of the International Code, which
reads as follows:
"Monitoring
the application of this Code lies with governments acting
individually, and collectively through the World Health
Organization as provided in paragraphs 6 and 7 of this
Article."
Paragraph 6 deals
with annual reporting by the Member States of WHO on action
taken to give effect to the Code at the national level.
This reporting requirement is based on Article 62 of the
WHO Constitution. Paragraph 7 deals with the reporting by
the Director-General to the WHA, once every two years, on
the status of implementation of the International Code.
Self-monitoring
is dealt with in
Article 11.3, which reads as follows:
"Independently
of any other measures taken for implementation of this
Code, manufacturers and distributors of products (1)
within
the scope of this Code should regard themselves as responsible
for monitoring their marketing practices according to
the principles and aim of this Code, and for taking steps
to ensure that their conduct at every level conforms to
them."
Let us now examine
the Nestlé Implementation Report against the background
of the provisions of the International Code and see
what those provisions require Nestlé to do in the
context of self-monitoring, and what Nestlé has in
fact done in this context. Reference will also be made to
the subsequent relevant resolutions of the WHA, when appropriate.
1. Art. 3 of the International
Code defines those terms as follows: " 'Distributor'
means a person, corporation or any other entity in the public
or private sector engaged in the business (whether directly
or indirectly) of marketing at the wholesale or retail level
a product within the scope of this Code. A 'primary distributor'
is a manufacturer's sales agent, representative, national
distributor or broker." " 'Manufacturer' means
a corporation or any other entity in the public or private
sector engaged in the business or function (whether directly
or through an agent or through an entity controlled by or
under contract with it) of manufacturing a product within
the scope of this Code." back
4.The
Concept of Self-monitoring under the International Code
It has to be
stated, at the outset, that the title of the Nestlé
Implementation Report is incorrect and can be misleading
in that it uses the term "Implementation", which
is not the responsibility of a manufacturer or distributor
of breast-milk substitutes or any other product covered
by the Code. Implementation of the International Code is
solely the responsibility of Member States of WHO, by virtue
of Article
11.1, which reads as follows:
"Governments
should take action to give effect to the principles and
aim of this Code, as appropriate to their social and legislative
framework, including the adoption of national legislation,
regulations or other suitable measures."
It should be
pointed out that "giving effect to" the principles
and aim of the International Code, is the same as
the "implementation" of the Code, which is a government
responsibility and not that of Nestlé. Nestlé's
responsibility is the monitoring of its own marketing practices,
according to the provisions of the International
Code.
| Therefore,
the use of the term "Implementation" in
the title of the Nestlé Implementation Report
could lead people to believe that Nestlé can
play a role in the implementation of the International
Code. It is clear that Nestlé has no such role
under the Code.his legal evaluation is intended to
be objective, without any recrimination, and in the
interest of the protection and promotion of breast-feeding
and of the health of infants all over the world. |
So far as the
concept of self-monitoring is concerned,
Article 11.3 of the Code imposes on a manufacturer and
distributor of a product within the scope of the Code, such
as Nestlé, the responsibility of monitoring its marketing
practices and ensuring that its conduct, at every level,
conforms to the principles and aim of the Code. Therefore,
this responsibility consists of two elements, the first
is the monitoring of marketing practices, and the second
is ensuring that its conduct conforms to the aim and principles
of the International Code.
What does "monitoring"
mean? The term is not defined in the International Code.
Therefore, it should be given its ordinary meaning. In accordance
with the Vienna Convention on the Law of Treaties, 1969,
"A treaty
shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose."(2)
While the
International Code is not a treaty, the Vienna Convention
can apply by analogy to the International Code. The
ordinary meaning of "monitoring", according to
The Concise Oxford Dictionary is to "maintain regular
surveillance over."(3) Accordingly, Nestlé
is required by the International Code to carry out regular
surveys of its marketing practices. This suggests investigations
and inspections of the various marketing practices carried
out by Nestlé itself or on its behalf by its agents,
marketing personnel, subsidiaries or any other entity acting
in that capacity for it. What are to be surveyed are the
marketing practices of those people and entities. The term
"Marketing" is defined in Article 3 of the
International Code as
"product
promotion, distribution, selling, advertising, product
public relations, and information services."
| Therefore,
Nestlé is responsible for monitoring all
these activities. Furthermore, this responsibility
implies going to where these activities are carried
out, be it at sales outlets, shops, supermarkets,
health care facilities, retailers premises and the
Internet, in order to verify whether such activities
are carried out in accordance with the principles
and aim of the International Code. |
Moreover, Nestlé
is responsible for taking the necessary measures to ensure
that its conduct, at every level, conforms to the principles
and aim of the International Code. That is to say,
Nestlé should make sure that all its agents, marketing
personnel, subsidiaries and retailers respect the provisions
of the Code in the exercise of their marketing activities.
And if there is a violation of the Code at any level, this
violation should be corrected by Nestlé. Furthermore,
Nestlé is required by the International Code to inform
its marketing personnel of their obligations under the Code
according to Article
11.5, which reads:
"manufacturers
and primary distributors of products within the scope
of this Code should apprise each member of their marketing
personnel of the Code and of their responsibilities under
it."
The provision
makes it clear that a manufacturer of breast-milk substitutes
should make each member of its marketing personnel aware
of their obligations under the International Code, when
they promote, distribute, sell, advertise, do public relations
and provide information services relating to breast-milk
substitutes. There are a number of obligations imposed by
the Code on those personnel. For example, the Code bans
the giving of samples of products within its scope (Article
5.2). Furthermore, the Code does not allow the marketing
personnel of manufacturers or distributors of such products,
in their business capacity, to have direct or indirect contact
with pregnant women or mothers of infants and young children
(Article
5.5). It also bans the donations or low-price sales
of supplies of those products, except under very strict
conditions (Article
6.6). Therefore, any violation by any of Nestlé's
marketing personnel of any of their obligations under the
Code should be penalised by Nestlé. It would, therefore,
appear that the Code envisages a link between informing
marketing personnel of manufacturers and distributors of
their responsibilities, surveying of their marketing practices
and ensuring that they conform to the Code, at every level,
for the purpose of self-monitoring under Article 11.3 of
the Code.
Which are the
criteria that should be applied by Nestlé in its
monitoring process? The answer to this question is to be
found in Article 11.3 of the International Code,
which stipulates that manufacturers and distributors of
products within the scope of the Code should carry out their
monitoring responsibility "according to the principles
and the aim of this Code". This should be done independently
of any other measures taken for the implementation of the
Code.
| Accordingly,
the drafters of the Code insisted that the provisions
of the Code are the criteria for such monitoring.
This position is probably intended to ensure that,
in case there is no proper implementation of the Code
in a particular Member State, the Code remains as
the basis of self-monitoring, it being envisaged as
"a minimum requirement" and as "a minimum
compromise."(4) |
Let us now examine
the Nestlé Implementation Report against the above
concept of self-monitoring.
2.See Art. 31, para. 1, of the Convention; see also
Art. 31, para. 1, of the Vienna Convention on the Law of
Treaties between States and International Organizations
or between International Organizations, 1986.back
3. See 9th ed.,1995, p. 879.back
4.On the history of the International Code, see Sami
Shubber, The International Code of Marketing of Breast-milk
Substitutes An International Measure to Protect and
Promote Breast-feeding 1998, pp. 3-45, published by Kluwer
Law International.back
5.Nestlé's
Self-monitoring
Under the heading
"Criterion Used for self-Monitoring", the Nestlé
Implementation Report states that
"in accordance
with the International Code, the criterion used
for self-monitoring in the current report is the International
Code, as applied and defined by each country. In other
words, the criterion is what the government endorses and
accepts as the interpretation of the Code in that country...
This is in accordance both with the International Code
itself, as well as WHO's reinforcement of the sovereignty
of governments and nature of WHO recommendations." (5)
Nestlé
begins, accurately and correctly, with the statement that
the criterion it used for self-monitoring was the International
Code. But it goes on to qualify this criterion (i.e., the
International Code) by the expression "as applied and
defined by each country". Then it goes on "the
criterion is what the government endorses and accepts as
the interpretation of the Code in the country."
| This
statement constitutes a vast departure from Article
11.3 of the International Code, which requires
self-monitoring to be "according to the principles
and aim of this Code. |
There is nothing
in the provision to suggest that the International Code
can be implemented as applied, defined, endorsed or
accepted as the interpretation of the Code by any country.
If we carry Nestlé's position to its logical conclusion,
then it would be possible to argue that if in State A, where
the International Code is not implemented in conformity
with Article
11.1, there is a decree banning only the giving of free
or subsidized supplies of breast-milk substitutes, Nestlé
will use that decree as its criterion for monitoring its
marketing practices. This is not what is envisaged under
Article 11.3 of the Code, in conjunction with the relevant
WHA resolutions.
Furthermore,
Nestlé maintains that the criterion it has used is
the International Code, as endorsed and accepted
as the interpretation of the Code in a certain country.
But this is a very strange argument, to say the least, because
under Article 11.1 of the Code, Member States of WHO are
called upon to implement the Code, not to interpret it,
in national legislation, regulations or other suitable measures.
Of course, a Member State may not be in a position to implement
the Code in any of these ways, for some reason, such as
lack of resources or expertise. But it would not be possible
for that State, in its attempt to give effect to the Code,
to take certain limited measures amounting to an interpretation
of the Code, without implementing it in its entirety. Nestlé
is willing to accept such measures as a criterion for self-monitoring.
It must be pointed out that the WHA, when it adopted the
Code, stressed that "the adoption and adherence to
the International Code ... is a minimum requirement"(6),
and it urged Member States
"to give
full and unanimous support to the implementation ... of
the provisions of the International Code in
its entirety ..." (7)
| Therefore,
unless the International Code itself, as adopted
by the WHA, and as clarified by subsequent relevant
WHA resolutions, is used as the criterion for self-monitoring,
any self-monitoring using a national instrument
that does not give effect to the provisions of the
Code, in their entirety, and those WHA resolutions,
is flawed. |
As such, it cannot
constitute compliance with Article 11.3 of the International
Code. It might be appropriate to conclude the discussion
of this important criterion by invoking the position of
the WHO and UNICEF Secretariats on Article 11.3, to the
effect that
"the determination
of whether manufacturers' and distributors' practices
are or are not in conformity with the Code will be made
on the basis of the Code itself, or national action
taken to give effect to it."(8)
It might also
be relevant to mention in this context that a national action
giving effect to the International Code (implementation
of the Code), in order to constitute full compliance with
Article 11.1 of the Code, has to be: (a) either legislation,
regulation or another measure of a legally binding nature;
(b) it should contain the International Code in its entirety
and as a minimum measure; and (c) include subsequent relevant
resolutions of the WHA. Any national measure short of that
would not be in line with the intent of Article 11.1 of
the Code and the wish of the WHA, nor would it constitute
the criterion for self-monitoring under Article 11.3.
Another issue
raised in the Nestlé Implementation Report is the
question of sovereignty and the legal nature of the recommendations
of the WHA. It referred to the statement of the WHO Director-General
to the effect that
"Member
States are sovereign; they may ... implement WHO's recommendations
to the letter; they may actually go beyond these recommendations;
or they may simply ignore them altogether."(9)
Then the Report
went on to refer to "WHO's reinforcement of the sovereignty
of governments and nature of WHO recommendations",
in an attempt to support its argument in relation to the
criterion it used in its alleged self-monitoring. But this
attempt fails, for the statement of the Director-General
does not, by any stretch of the imagination "reinforce
the sovereignty of governments", as alleged by Nestlé.
Member States of WHO are sovereign States under international
law and the statement of the Director-General does not add
anything to that sovereignty. Moreover, the Director-General
said nothing about reinforcing the sovereignty of Members
of WHO, nor does she have the authority under international
law to do so. The Director-General of WHO is "the chief
technical and administrative officer of the Organization",
according to the WHO Constitution (Article 31). Therefore,
Nestlé's description of the statement of the Director-General
could be misleading, as it attributes to it something of
a legal nature which is not there.
As regards the
nature of the WHO recommendations it is true that, per se,
they are not binding from a legal point of view. However,
it is indeed unfortunate that the Director-General believes
that WHO recommendations may be ignored altogether by Member
States. WHO recommendations on a public health issue, adopted
by the WHA, express the collective judgement of the membership
of the Organization, which is the highest health authority
in the world. The WHA itself said so in 1981, when it adopted
the International Code. It urged Member States to implement
the International Code "as an expression of the collective
will of the membership of the World Health Organization".(10) This position was reiterated by the Secretariats
of both WHO and UNICEF later, when they said:
"Recommendations
adopted by the Health Assembly for appropriate action
by Member States in their territories express the judgement
of the collective membership of the Organization on given
public health issues ..."(11)
As such, recommendations
of the WHA carry at least some moral and professional force
and should have a persuasive authority. Furthermore, in
certain situations, some recommendations of the WHA, not
unlike those of the General Assembly of the United Nations,
could have legal obligations for Member States (12) and cannot be ignored altogether by Member States.
Another issue
raised in the Nestlé Implementation Report is that
the Directive adopted by the European Communities (now the
European Union) in 1991 (European Directive 91/321),
"... is
the implementation of the International Code in
Europe (see letter from government of Denmark, page 176)."
(13)
This statement
is misleading, for the European Directive 91/321, does
not cover all the provisions of the International
Code. To give but some examples of the differences between
the Code and the Directive: The scope of the European Directive
is narrower than that of the International Code,
in that it applies to the composition and labelling of infant
formulae, which is only one category of breast-milk substitutes(14). By contrast, the International
Code applies to all breast-milk substitutes , as well
as feeding bottles and teats, and covers more than the composition
and labelling of those products(15). Furthermore, the European
Directive allows the advertising of infant formulae in publications
specializing in baby care and scientific publications(16); whereas the International
Code bans advertising altogether, as well as any other
form of promotion for products covered by it (17). Consequently, the European
Directive cannot be considered as a proper implementation
of the International Code as envisaged by its drafters
and as expressed in Article 11.3 of the Code, and as urged
by the WHA.
It might be pertinent
here to comment on the letter of the Danish Government,
which the Nestlé Implementation Report invokes. The
letter refers to EC Directive 91/321 and goes on to say
that the Danish Veterinary and Food Administration has implemented
that Directive. It thus believes by doing so "the principles
and aim of the International Code of marketing of Breast-milk
Substitutes ... have been integrated into Danish law".
This statement expresses the belief of the Danish authorities,
which may not necessarily be in line with Article 11.1 of
the International Code. As has been mentioned earlier, the
EC Directive does not cover all the provisions of the International
Code. Therefore, its implementation does not constitute
proper implementation of the International Code. Furthermore,
the Danish letter, it appears, was not intended to be a
declaration of Nestlé's compliance with the Code.
It would seem that the author of that letter was under the
impression that
"... Nestlé
would use the letter in connection with export of infant
formulas to countries outside the EU in order to inform
about the fact that Denmark had implemented the commission's
Directives."(18)
| It
may be concluded that the criterion used by Nestlé
for its alleged self-monitoring is not the one required
by Article 11.3. Nestlé did not use the International
Code and subsequent WHA relevant resolutions for
the purpose of self-monitoring, nor did it use national
measures which meet the conditions laid down in
Article 11.1 and the resolutions of the WHA. |
5.See the Nestlé Implementation Report, p.2.back
6. See Resolution WHA 34.22, last preambular paragraph.back
7. See ibid., operative para. 2 (1)., (emphasis
added)back
8. See WHO/UNICEF Notes on the International Code
of Marketing of Breast-milk Substitutes, 1982, p.11, para.
47, (emphasis added).back
9. See the statement of the WHO Director-General
at the WHO Round Table, 19 November 1998, p.7, quoted
in the Nestlé Implementation Report, p.2.back
10. See Resolution WHA34.22, operative paragraph
2 (1).back
11. See WHO/UNICEF Notes, loc. cit., p. 11, para.
45.back
12. On the legal effect of resolutions of WHA, see
Shubber , loc. cit., pp. 194-202.back
13. See the Nestlé Implementation Report,
p. 2.back
14. See Art. 1 of the Directive. The text of the
European Directive is to be found in the Official Journal
of the European Communities, L 175 (4.7.91), pp. 35-39.back
15. See Art. 2 of the International Code.back
16. See Art. 8.1 of the European Directive.back
17. See Art. 5 of the International Code.back
18. See Baby Milk Action, Briefing Paper (December
1999), p.11. back
6.Nestlé's
Approach to Self-monitoring
According to
the Nestlé Implementation Report, its approach to
self-monitoring was as follows:
"1. Nestlé
approached health ministries to ask the governments to
inform Nestlé of any violations of the International
Code as applied in their countries, which need to
be corrected (See Exhibit 1 for a sample letter). The
Nestlé Instructions (Exhibit 2 ...), where appropriate,
were presented again to the government to assure that
the government approved of our policies (or inform us
if they did not), and the relevant government measures
were referenced.
2. If the government
was aware of any violations, or if they did not agree
with a Nestlé policy in implementing the Code,
it was asked to inform Nestlé, and the Company
proceeded to take corrective action.
3. When the
point had been reached where the government was in a position
to confirm Nestlé's Code compliance, it was asked
to do so in writing." (19)
Nestlé's
approach to self-monitoring calls for the following comments:
(a) Self-monitoring,
from a linguistic point of view, means monitoring by oneself,
and not by someone else. In this respect, Nestlé
has not, itself, carried out its obligations under
Article 11.3 of the International Code, namely
surveying, investigating, and inspecting its marketing personnel,
contractors, places of distribution of its products, and
facilities of the health care systems, etc., in order to
ensure that its marketing practices conform to the provisions
of the International Code. To ask ministries of health
to tell Nestlé of any violations of the International
Code is tantamount to asking them to monitor Nestlé's
marketing practices, but is not self-monitoring by Nestlé.
If so, then this exercise does not amount to self-monitoring.
It is "passing the buck", which is not what is
intended under Article 11.3 of the International Code.
In fact, Nestlé itself admits , fortuitously, that
its alleged self-monitoring was State monitoring, in accordance
with Article
11.2 of the International Code. The Nestlé
Implementation Report states:
"A second
strength of the current process [self-monitoring] is that
it fostered communication between the Company [Nestlé]
and each government on the International Code,
and the government exercised the role given to it by Article
11.2 of the International Code, as being responsible
for monitoring."(20)
(b) Article 11.3
of the Code clearly states that manufacturers and distributors
of products covered by it "should regard themselves
as responsible for monitoring their marketing practices"
(emphasis added). The Code does not say that Nestlé
should go and ask ministries of health of WHO Member States
to tell Nestlé if the Company, or any of its agents
or personnel, are violating the International Code. Moreover,
there is nothing under the Code permitting Nestlé
to ask ministries of health if they agree with the Company's
policy on implementation of the Code, and then to consider
that as self-monitoring under Article 11.3. The drafters
of the Code intended that entities like Nestlé should
check, investigate and ensure that they, their agents, personnel,
contractors, and so on, are complying with the provisions
of the Code insofar as their marketing practices are concerned.
And if they discover any violation of the Code, then they
should correct it, rather than ask ministries of health
to tell them of violations of the Code. At the 1998 WHA,
the Director of Family and Reproductive Health stated that
"manufacturers
and distributors of foods intended for infants and young
children had ... a responsibility to monitor their marketing
practices in ... [accordance with] the principles and
aim of the Code and ... [relevant] resolutions of the
World Health Assembly." (21)
(c) In its sample
letter (the letter to the Ministry of Health of Malaysia),
Nestlé is asking the Ministry to judge the Company's
marketing practices on infant formula products by the Malaysian
Code of Ethics for Infant Formula Products. The latter Code
cannot be considered as a proper implementation of the International
Code, as required by
Article 11.1 of the Code. Firstly, the Malaysian instrument
is a "Code of Ethics", which is non-binding; therefore,
it cannot be considered as a proper legal instrument for
the purpose of the implementation envisaged in Article 11.1
of the International Code. Secondly, the scope of the Malaysian
Code of Ethics is limited to infant formula which, as said
above, is only one category of breast-milk substitutes.
As such, it cannot constitute a criterion for measuring
Nestlé's responsibility for self-monitoring under
Article 11.3. In the Nestlé letter to the Malaysian
Ministry of Health, Nestlé appears to be asking for
its responsibility under the International Code to be assessed
by a much weaker instrument, namely the Malaysian Code of
Ethics. The letter says:
"Nestlé
has taken very seriously its responsibility to market
our Infant Formula products in accordance with the
International Code, which is implemented in Malaysia
through the Malaysian Code of Ethics for Infant Formula
Products."(22)
If the latter
Code is only a partial implementation of the International
Code, in a non-binding instrument, how could it be the
criterion for measuring Nestlé's compliance with
the International Code? The Malaysian Code of Ethics
was first formulated in 1979 and was revised in 1983, 1985
and 1995(23). As its name suggests, it
is a code of ethical practices for the infant formula industry
and for medical and health professionals/personnel. The
penalties provided in the Code of Ethics do not appear to
constitute penalties in the proper sense of the word. The
strongest penalty in it is a written warning to the parent
company, in case of violation ( 24). As said earlier, its scope is limited to one category
of breast-milk substitute. Furthermore, it does not cover
some of the provisions of the International Code,
e.g., Article 6.6. of the International Code on supplies
and Article 9.2 (d) on pictures or texts on labels. And
it contains no reference at all to its being an implementation
of the International Code.
(d) The contents
of the letter of the Malaysian Ministry of Health to Nestlé
may not necessarily confirm Nestlé's alleged compliance
with Article 11.3 of the International Code. The
letter starts by thanking Nestlé for its co-operation
with the Ministry
"... in
upholding the Code of Ethics for Infant Formula Products.
It is hoped that your Industry will further improve in
your actions towards promoting, protecting and supporting
breast feeding and continue to abide by the Code."(25)
Strictly speaking,
the letter does not say expressly that Nestlé was
complying with the Code of Ethics. It expresses the hope
that "Nestlé will continue to abide by the Code".
While this phrase could be interpreted in favour of Nestlé's
alleged self-monitoring, it is vague and general; therefore,
it provides little support for Nestlé's thesis. Even
if one were to accept this statement as compliance, it would
seem to be compliance with a national instrument which cannot
be regarded as a proper implementation of the International
Code as envisaged by the drafters of the International
Code. As regards "upholding the Code of Ethics",
the letter might have been intended to refer to the support
provided by Nestlé in the preparation of the Code
of Ethics. The Malaysian Minister of Health acknowledged
receipt of strong support and cooperation from the infant
formula industry during the preparation of the revised edition
of the Code of Ethics in question.(26)
(e) In its approach
to its alleged self-monitoring, Nestlé asked that
when "the government was in a position to confirm Nestlé's
Code compliance, it was asked to do so in writing."
Here, again, there is an indication that Nestlé expects
the government concerned to monitor Nestlé's marketing
practices, and then when the government completes this process,
it should state in writing: we confirm that Nestlé
is in compliance with the International Code. This
approach cannot be considered as relevant to the self-monitoring
envisaged under the International Code because, in
fact, it amounts to third-party monitoring.
| In
the light of what has been said above, it is clear
that neither the criterion used by Nestlé,
nor its approach in the "Nestlé Implementation
Report" is in conformity with Article 11.3. of
the International Code. Therefore, it would
be reasonable to conclude that Nestlé's exercise
is neither an "implementation" of the International
Code, nor self-monitoring under it. |
19 See the Nestlé Implementation Report, p.3.back
20 Ibid., p, 8, under the heading "Conclusions
and Ways to Strengthen the Current Approach".back
21 See Fifty-first World Health Assembly, WHO Doc.
A51/A/SR/4, 15 May 1998, p. 11.back
22 See the Nestlé Implementation Report, p.
4.back
23 For the text of the Malaysian Code of Ethics, see
Ellen Sokol, The Code Handbook A Guide to Implementing
the International Code of Marketing of Breast-milk Substitutes,
(1997), pp. 221-239.back
24 See ibid., p. 238, under "(d) Penalty",
para. (i).back
25 See the Nestlé Implementation Report. p.
104.back
26 See Foreword to the Code of Ethics by Y.B. Encik
Chua Jui Meng, Minister of Health, Malaysia, note 23 above,
p. 224.back
7.The
Nestlé Instructions
Nestlé
presented its Instructions for the Implementation of the
International Code (Nestlé Instructions),
to 54 governments of WHO Member States. Eight of these governments,
namely, Guyana, Saint Vincent and the Grenadines, Antigua
and Barbuda, South Africa (the provinces of Mpumalanga and
Northern Cape), Madagascar, Comores, Cyprus and Romania
have referred, expressly or implicitly, to the Nestlé
Instructions and seem to base their replies on them when
replying to Nestlé's request for confirmation that
it is complying with the International Code. It would,
therefore, be fair and reasonable to make the following
comments on those Instructions:
Nature of
the document
The Nestlé
Instructions is a complex document, and any person who is
not well conversant with the International Code,
WHA subsequent relevant resolutions and other circumstances
surrounding the adoption of the Code, may not appreciate
the significant differences between the Instructions and
the Code. The Instructions use clever language, a deliberate
choice of words, and also vague language, which departs
from the language and intent of the International Code
in many ways. Yet the difference between the Code and the
Instructions may not be appreciated by the uninitiated.
It is well known that when Nestlé requested WHO to
review its Instructions in 1982, it took a multi-disciplinary
team of the WHO Secretariat some weeks to do so. Therefore,
it would not be fair and reasonable to expect senior officials
of ministries of health, who are often very busy, to review
and appreciate the differences between the Code and the
Instructions.
Scope of the
International Code
The Nestlé
Instructions contain a glaring misrepresentation of the
International Code when they reproduce
Article 2 of the Code (Scope of the Code). Nestlé's
text inserts the following under Article 2 of the Code:
"N.B.
The scope is clarified in Annex 3 (p.33) of the Code:
During the
first four to six months of life, breast milk alone is
usually adequate to sustain the normal infant's nutritional
requirements. Breast milk may be replaced (substituted
for) during this period by bona fide breast-milk substitutes,
including infant formula. Any other food, such as cow's
milk, fruit juices, cereals, vegetables, or any other
fluid, solid or semi-solid food intended for infants and
given after this initial period, can no longer be considered
as a replacement for breast milk (or as its bona fide
substitute)." (27)
The quoted passage
is taken from the statement of the representative of the
Executive Board of WHO before the WHA, Dr. Mork, in 1981.
Neither the text of the International Code adopted
by the WHA on 21 May 1981, nor the text subsequently published
by the WHO Secretariat, contain such an N.B. Furthermore,
the insertion of the N.B. is misleading, in that it may
give the impression that Annex 3 constitutes part of the
International Code, as adopted by the WHA which,
of course, is not the case. The statement of the representative
of the Executive Board is not the same as the pronouncement
of the WHA. The latter is responsible for determining the
policies of the WHO, according to the Organization's Constitution
, (28)
whereas statements of members of the Executive Board represent
their personal views. Members of the Executive Board are
individuals who are technically qualified in the field of
health, according to the WHO Constitution (29). Incidentally, Nestlé
also took the liberty of underlining two terms in Article
3 of the Code, when the text of the provision was reproduced
in its Instructions, without any basis under the Code. The
term "primary distributor", in the definition
of "distributor" , and the term "sales outlets",
in the definition of "health care system", were
underlined by Nestlé.(30)
While the underlining does not affect the substance of the
definitions, it adds something which is not in the Code.
A reproduction of a WHO text should be entirely faithful
to the original.
Differences
between the Nestlé Instructions and the International
Code
There are serious
and significant differences between the Nestlé Instructions
and the International Code. While this evaluation
of the Nestlé Implementation Report is not intended
to be a review of the Nestlé Instructions, it would
be appropriate to give some examples of these differences
between the Code and the Instructions:
(a) Article 2
of the International Code applies to breast-milk
substitutes, including infant formula, as well as other
milk products, foods and beverages, which would fall under
the heading of breast-milk substitutes when marketed or
otherwise represented as a partial or total replacement
of breast-milk. The Nestlé Instructions apply to
infant formula only. This considerably narrows the scope
of the Instructions.
(b)
Article 4.2 (e) of the International Code bans
the " use of any pictures or text which may idealize
the use of breast-milk substitutes" on informational
and educational materials. By contrast, Nestlé Instructions
allow the use of "baby pictures ... to enhance the
educational value of information." This constitutes
a breach of Article 4.2 (e), which is intended to prevent
the use of educational and informational materials for the
promotion of breast-milk substitutes and other products
covered by the Code; and the use of such pictures is a form
of promotion.
(c) Article
5.1 of the International Code bans the advertising
and any other form of promotion to the general public of
products covered by the Code. Nestlé Instructions
speak of "information relating to infant formula must
not be communicated directly to mothers or the general public."
There is a significant
difference between advertising and any other form of promotion
and "information". Moreover, the ban under the
International Code applies to direct and indirect
advertising and promotion, whereas the Nestlé
Instructions apply to communication of information "directly"
only, to mothers and the general public. Thus, the ban under
the Instructions is narrower than under the Code.
(d)
Article 6.4 of the International Code bans the
use of "professional service representatives",
"mothercraft nurses" and similar personnel in
the health care system, provided or paid for by manufacturers
or distributors of products covered by the Code. By contrast,
the Nestlé Instructions say
" company
personnel must not be used by the health care system for
advising mothers or similar duties."
The wording used
by the Instructions could be misleading, for "mothercraft
nurses" may not necessarily be Nestlé company
personnel. They could be paid for by Nestlé without
being Nestlé staff members. Furthermore, while the
Code does not allow the use of such personnel for any purposes,
the Nestlé Instructions limit the ban to "advising
mothers or similar duties". The latter is narrower
than the Code and the clever and careful language the Instructions
use may mislead many a person, who is not familiar with
the Code, and thus allow promotional activities under the
provision.
(e)
Article 6.6 of the International Code allows
the donations of supplies of breast-milk substitutes and
other products covered by it, and the low-price sales of
these products to "institutions or organizations",
under certain specific conditions. In addition, the WHA
adopted a resolution in 1994 banning the giving of such
supplies to "any part of the health care system".(31)The
Nestlé Instructions ban free or low-price infant
formula supplies "to maternity wards and hospitals".
The term "maternity wards and hospitals" covers
a very narrow range of medical institutions, whereas the
term "any part of the health care system" applies
to a much wider range. For Article
3 of the International Code defines "health
care system" as
"governmental,
non-governmental or private institutions or organizations
engaged, directly or indirectly, in health care for mothers,
infants and pregnant women; and nurseries or child care
institutions. It also includes health workers in private
practice."
Moreover, while
Article 6.6 allows the donation or low-price sale of supplies
of breast-milk substitutes only for use or distribution
"for infants who have to be fed on breast-milk substitutes",
the Nestlé Instructions used a language which is
different from the Code's. They use the following language:
"Free
or low-price infant formula supplies may not be donated
to maternity wards and hospitals for use by healthy newborn
babies."
The Code's language
was chosen by the drafters of the Code in order to limit
the recipients of such supplies and thus prevent the use
of supplies as a form of promotion of breast-milk substitutes.
The Nestlé Instructions introduce a different wording,
which is open to abuse.
Elsewhere in
the Instructions, one finds devious language used under
Annex 5, heading "Clinical Validation Policy",
which distorts the intent of Article
6.6, and thus misleads. Under the latter heading, Nestlé
refers to its commitments under the International Code
and goes on to say:
"since breast-feeding
is to be encouraged for all babies, only those babies who
have to be fed on a breast-milk substitute may participate
in trials these may, however, include babies whose
mothers, after consultation with a doctor, have chosen not
to breast-feed, or chosen to discontinue breast-feeding,
or chosen to complement breast-feeding." [Emphasis
added.]
The emphasised
expressions convey a notion which is drastically different
from the notion of "infants who have to be fed on breast-milk
substitutes", as intended by the drafters of the Code.
As the chief drafter of the Code, Sir Robert Jennings, former
Judge and President of the International Court of Justice,
has said in a paper for the WHO on the intent of Article
6.6 in relation to the phrase "infants who have to
be fed on breast-milk substitutes":
"This
means infants who, for clinical reasons cannot be breast-fed
and for whom, therefore, there is no option other than
the use of substitutes. 'Have to' is a phrase indicating
an absence of any choice in the matter. Of course the
wrongful use of substitutes for infants who do not 'have
to be' thus fed, will change them into infants that do.
But this is precisely what the Code seeks to prevent.
This is apparent from the whole intent and purpose of
the Code, and if any doubt on this point can be imagined,
it must be dispelled by a reading of the Code as a whole,
including its preamble."(32)
In the absence
of compulsion, a mother choosing to use a breast-milk substitute
in feeding her infant for any reason, would not turn the
infant into one that "has to be fed on breast-milk
substitutes".
(f) Article
7.3 of the International Code bans the provision
of financial or material inducement to promote products
covered by the Code to health workers or members of their
families. By contrast, the Nestlé Instructions allow
the giving of "low-cost items of professional utility,
or culturally appropriate gifts" to health workers,
and give a long list of those items.(33) These items include "inexpensive" materials,
"material intended for health workers (including those
attending congresses and conferences), which either have
educational purposes or render a genuine service",
weight charts, wall charts, calculators, weighing scales
and stethoscopes. The giving of such materials and tools
cannot be in line with Article 7.3 of the Code, as this
practice is promotional in nature.
Relevant WHA
resolutions
The Nestlé
Instructions allege that they take into account the relevant
WHA resolutions which were adopted after the adoption of
the International Code.(34) But in practice, these resolutions
are not, in fact, taken into account by Nestlé. A
clear example is the donation of low-price sales of supplies
of breast-milk substitutes, which are not allowed to "maternity
wards and hospitals", according to the Nestlé
Instructions, whereas the relevant WHA resolution bans the
same supplies to "any part of the health care system"(35). These resolutions of the
WHA clarify the intent of some of the provisions of the
Code and, as such, are relevant to the process of implementation
and monitoring of the Code.
| In
the light of the significant differences between the
International Code and the Nestlé Instructions,
their presentation to "the government to assure
that the government approved of [Nestlé's]
policies", does not help Nestlé to establish
self-monitoring under Article 11.3 of the Code. Understanding
those Instructions and appreciating their complexity,
and the clever and at times devious language used
by Nestlé, is a very hard task for senior officials
in ministries of health. Therefore, it is not very
helpful for Nestlé to invoke those Instructions
in support of its thesis of alleged self-monitoring. |
27 See the Nestlé Implementation Report, p.
25.back
28 See Art. 18 (a) of the WHO Constitution.back
29 See ibid., Art. 24.back
30 See the Nestlé Implementation Report, p.35.back
31 See Resolution WHA47.5, operative paragraph 2 (2).
back
32 This passage is cited in Shubber , loc.cit., p.
136, (emphasis added).back
33 See the Nestlé Implementation Report, Annex
4, p. 41.back
34 In the Introduction to the Updated Nestlé
Instructions, July 1996, under the heading "Purpose",
it is stated that "this July 1996 version updates Nestlé's
policy ... and also takes into account subsequent related
World Health Assembly resolutions where appropriate."
Ibid., p. 23. In the WHA resolutions the expression "subsequent
relevant Health Assembly resolutions" is used. See
WHA43.3, operative paragraph 2 (1) c.back
35 See above, p. 16.back
8.
The Responses from Governments to Nestlé
Nestlé
relies heavily on the responses it has received from 54
governments of WHO Member States, as
"written
evidence ... indicating satisfaction with Nestlé's
implementation of the International Code in their
country ..." (36)
It is not the
purpose of this evaluation of the Nestlé Implementation
Report to discredit, or cast doubt on, the authenticity
of the letters in question.(37) However, it would be fair and reasonable to make
the following comments:
(a) The responses
under consideration do not constitute "written evidence"
from 54 governments indicating satisfaction with Nestlé's
implementation of the International Code.
First, as has
been mentioned earlier,(38) the implementation of the International Code
is not the responsibility of Nestlé, it is the responsibility
of governments of WHO Member States under Article
11.1 of the Code. Moreover, these responses are not
relevant to the alleged self-monitoring by Nestlé,
because they could, at best, be considered as evidence of
State monitoring under Article
11.2 of the Code. Nestlé, itself, admits as much.(39)
(b) One does
not know whether the governments were told for what purpose
their responses would be used, and whether or not they were
told by Nestlé that their responses would be published.
At least in one case, the author of the letter from the
Danish Ministry of Food, Agriculture and Fisheries, Danish
Veterinary Administration, Dr. Bente Koch, said that she
was "very surprised" that her letter was used
in this way.(40) Certainly, Nestlé's
sample letter does not contain any indication about the
possible publication of the responses from governments.
And yet, the sample letter attaches "a draft letter
which the [government] could use" for its reply.(41) This draft letter has not
been included in the Nestlé Implementation Report.
It would be legitimate to ask: Had the people in the ministries
of health been told that Nestlé was going to publish
their letters in a document, widely distributed all over
the world, and as "written evidence" from them
of Nestle's compliance with the International Code,
would they have written such letters?
(c) Eight of
the 54 responses under consideration are based on Nestlé's
Instructions, as has been demonstrated earlier, which differ
significantly from the provisions of the International Code,
while two responses (those from Burundi and Rwanda) are
based on Nestlé's annual reports. Therefore, they
cannot constitute the criterion required for self-monitoring
under Article
11.3 of International Code. Furthermore, some of those
responses do not support the thesis of self-monitoring claimed
by Nestlé. The letter from Oman merely thanks Nestlé
for attending a meeting in the Omani Ministry of Health
in 1998. Another letter says that Nestlé is not complying
with the International Code, as the Nestlé Implementation
Report admits.(42) The letter from the Dominican
Republic refers to the need to examine the labelling of
infant formula. And the letter from Egypt is sent by a national
society which does not appear to have any link with the
Ministry of Health of Egypt.
(d) The wording
of the above responses does not lend itself to establishing
the process of State-monitoring, in general, let alone self-monitoring.
Expressions like "to the best of my knowledge",
"not aware of violations", "will inform you
of any violations", "I have not noticed any of
their products being sold here", and "the Health
Authority understands", to give but a few examples,
cannot by any standard of proof establish that Nestlé
has been complying with the International Code. If the responses
in question were really intended as proof of Nestlé's
compliance with the International Code, one would
have seen wording like "we have carried out an inspection
and investigation of the market, retailers' premises and
the health care system facilities, and have found that Nestlé
is in full compliance with the International Code,
or the national legal instrument giving effect to it."
| Therefore,
the government responses claimed by Nestlé
to constitute "written evidence" of its
compliance with the International Code do not
constitute proof of Nestlé's compliance with
the Code. Nestlé's claim that they do so is
misleading and can, at best, be described as an exercise
in public relations. |
36 See the Nestlé Implementation Report, p.
5.back
37 For a thorough and detailed analysis of the Government
Responses to Nestlé, see IBFAN's Briefing Paper,
Don't judge a book by its cover The truth behind Nestlé's
book, Appendix, January 2000.back
38 See above p. 3.back
39 See above pp.10-11.back
40 See above note 18, p.11back
41 . See the Nestlé Implementation Report,
Exhibit 1, p. 4.back
42 See ibid, p. 5.back
9.
The Essentials of a Self-monitoring Process
If
Article 11.3 of the International Code on self-monitoring
by manufacturers and distributors of products covered by
the Code is to be implemented properly, then the following
essential elements must be present in order to be in line
with the principles and aim of the Code.
(a) These were
laid down in a 1996 resolution by the WHA, where the Assembly
urged Member States
"to ensure
that monitoring the application of the International Code
and subsequent relevant resolutions is carried out in
a transparent, independent manner, free from commercial
influence." (43)
While this resolution
is addressed to Member States of WHO, in relation to State-monitoring
under Article
11.2 of the International Code, the principles
contained in the resolution are perfectly suitable for self-monitoring
by the industry under Article 11.3. These principles are
1. Transparency;
2. Independence;
and
3. Freedom from
commercial influence.
(b) Any self-monitoring
exercise by any manufacturer or distributor of breast-milk
substitutes, or any other product covered by the International
Code, should be transparent. That is to say, the process
should be evident to anybody interested in the protection
and promotion of breast-feeding. The transparency of the
monitoring process enhances its credibility.
(c) The process
of self-monitoring should be free from any pressure or influence,
be it financial, administrative, political or any other
influence. Only when monitors are free from any influence
or pressure can their assessment of the marketing practices
of Nestlé, or any other manufacturer or distributor
of breast-milk substitutes or other products covered by
the International Code, be impartial and objective.
It may be relevant here to say that Nestlé had established
a body called the Nestlé Infant Formula Commission
(NIFAC) in 1982, headed by the late Senator Edmund Muskie
and comprising a number of persons of high integrity and
standing, for the purpose of examining complaints against
Nestlé for non-compliance with the International
Code. NIFAC was disestablished in 1991. However, a legitimate
criticism against NIFAC is that it lacked the necessary
independence, because of its full dependence on Nestlé
for its financing and the appointment of its members.
(d) Any self-monitoring
process by manufacturers or distributors of products within
the scope of the Code should be free from any commercial
influence. That is to say, the monitoring should not be
subject to pressure or influence from any commercial side,
be it the company itself or any of its subsidiaries or marketing
personnel. This principle leads one to ask: If the personnel
of a company producing breast-milk substitutes are monitoring
the marketing practices of their own company, would this
process meet the above principle? It would be doubtful if
such personnel could be immune from the influence of their
company (their employer). There is also a possible conflict
of interest between the company and strict compliance with
the International Code. The monitors are employed
by the company and are therefore likely to give preference
to the commercial interest of their employer over the promotion
and protection of breast-feeding. Therefore, self-monitoring
by manufacturers and distributors of products covered by
the International Code under Article 11.3 could be
unsatisfactory or inadequate. This shortcoming was noted
by the participants at a meeting held under the auspices
of WHO at The Hague in 1991, who declared that
"self-monitoring
by the infant-food industry has in some cases been found
to be inadequate or unsatisfactory."(44)
(e) Any self-monitoring
by the industry under Article 11.3, should be entrusted
to an independent panel composed of persons representing
various disciplines relevant to the International Code,
such as doctors, nurses, nutritionists, economists, lawyers,
and administrators. Members of the panel should be conversant
with the Code, the work of WHO, UNICEF, the United Nations
system, and NGOs. They should be persons of high integrity
and should possess the three principles contained in the
resolution of WHA mentioned above, namely transparency,
independence and freedom from commercial influence in the
exercise of their monitoring function. And the criterion
for monitoring must be the International Code, or
national measures properly implementing the Code. It might
be interesting to point out that, following the decision
of the General Synod of the Church of England in 1994 to
suspend its support for the Nestlé boycott (45), a group was established in the U.K. This group was
called the Interagency Group on Breast-feeding Monitoring
(IGBM), and was composed of NGOs, academic institutions
and Churches. The purpose of the IGBM was to carry out independent
research into violations of the International Code,
by manufacturers and distributors of products covered by
the Code, in four countries, namely, Poland, Bangladesh,
Thailand and South Africa. The IGBM might represent a model
for the panel suggested above, because in carrying out its
research it maintained "complete independence from
both the companies and IBFAN".(46) Incidentally, the IGBM has
found many violations of the International Code in
all the countries where the monitoring took place, and Nestlé
is one of the offending companies.(47) IBFAN has also monitored
the application of the Code in several countries, and has
also found that Nestlé has been violating the Code.(48)
43 See Resolution WHA49.15, operative paragraph 3
(3).back
44 See Review and Evaluation of National Action Taken
to Give Effect to the International Code of Marketing of
Breast-milk Substitutes: Report of a Technical Meeting,
The Hague, 30 September-3 October 1991, WHO Doc. WHO/MCH/NUT/91.2,
p. 16, para. 36.back
45 See Cracking the Code Monitoring the International
Code of Marketing of Breast-milk Substitutes 1997 p.3 back
46 Ibid.back
47 See ibid., pp.7, 13, 17 and 18, to give but some
examples. See also Nestlé's reply to the IGBM report,
A Missed Opportunity Nestlé's Comments on the
IGBM Report "Cracking the Code", Nestlé
UK, 1997.back
48 See IBFAN's Breaking the Rules Stretching
the Rules, 1998, pp. 2, 9, 12, 15, 38, and 43, to give but
some examples.back
10. Conclusions
| Nestlé's
alleged self-monitoring does not comply with the requirements
of
Article 11.3 of the International Code,
because neither the criterion nor the approach used
by Nestlé conform to those requirements. Going
to 54 governments of Member States of WHO and asking
them whether or not Nestlé is complying with
the International Code, does not constitute
self-monitoring as envisaged under Article 11.3 of
the Code. |
| Nestlé's
claim that the responses from 54 governments constitute
"written evidence" of its compliance with
the International Code cannot be accepted.
These responses could, at best, indicate State-monitoring.
Therefore, these responses are not relevant to self-monitoring.
Eight of these responses are based on the Nestlé
Instructions, which differ considerably, in many areas,
from the International Code, while two others
are based on Nestlé's annual reports. And there
is no evidence that the authors of these letters were
informed by Nestlé that their letters would
be published and distributed widely. |
| The
Nestlé Instructions contain serious omissions
and departures from the International Code.
Moreover, the Instructions are drafted in such a clever
and devious way that they could easily mislead people
who are not conversant with the Code. In addition,
they do not take into account the subsequent relevant
resolutions of the WHA. Therefore, they cannot be
considered as a basis for assessing Nestlé's
compliance with the International Code. |
| The
Nestlé Implementation Report can, at best,
be described as an exercise in public relations. The
very wide distribution of the Report and the publicity
given to it, support this proposition. It is probably
intended to off-set recent criticism of Nestlé
and its declared violations of the International
Code. |
|
