July 21, 1998
In July 1996 the Secretary General of the United Nations reported that most nations were well on their way to achieving the concrete goals set out at the World Summit for Children in 1990. However, one major area of disappointment was that . . .
The International Code Documentation Centre (ICDC) in Penang, Malaysia, part of the International Baby Food Action Network (IBFAN) has drafted excellent model legislation to help implement the International Code of Marketing of Breastmilk Substitutes. My purpose here is to examine the Code and the associated Model Law in terms of their relationships to infants’ nutrition rights, and to suggest ways in which their rights dimensions might be strengthened. Thus, in the next section I will briefly describe the Code and the Model Law, and then follow that with an analysis of their features in relation to infants’ nutrition rights.
The International Code of Marketing of Breastmilk Substitutes was adopted by the World Health Assembly on May 21, 1981. It has been given vigorous life through the advocacy of a number of concerned nongovernmental organizations and the responsiveness of many governments around the world. The International Code Documentation Centre in Penang, Malaysia published an update on the State of the Code by Country in July 1996. It shows that 16 countries have enacted legal measures encompassing most of the Code and another 26 have enacted measures encompassing many, but not all of its provisions. Many other countries have taken other more modest steps.
An outline of the Model Law, as updated in August 1996, is provided in the appendix at the end of this paper. The text itself begins by saying it is a model for:
The International Code of Marketing of Breastmilk Substitutes was used as the basis for the preparation of the Model Law, and that in turn is to be used as the basis for the formulation of national law. That law is intended to assure that industry, the media, and health services provide information about breastfeeding and breastmilk substitutes that is adequate and unbiased, and thus allow mothers, health professionals, and others to make their decisions on the basis of sound information.
As indicated in Figure 1, the major change recommended here is that this entire process should be viewed as being rooted in international human rights law. Placing this activity into the human rights framework would help to draw in new allies and new tools from the human rights community. Work on promoting the implementation of the Code should continue to be done for all the same reasons as before, but now also because children and women have specific human rights, and states have specific obligations to honor those human rights. When put into the human rights framework, the work remains much the same, but it is understood in a new way.
Internationally recognized rights can be realized within nations even if those rights are not articulated in national law. However, (as I have argued in "Realizing Human Rights Through Implementation of National Law") they are much more likely to be realized when there is well-crafted law regarding these rights at the national level. In my view, writing such law means clarifying (a) the individual’s rights, (b) the government’s obligations that correspond to those rights, (c) the government’s response mechanisms including both identification of the agencies responsible for fulfilling the obligations and the procedures through which they are to operate, and (d) the accountability mechanisms that assure that the obligations are honored. These core components of human rights law are discussed in the following four sections, first in general terms, and then specifically in relation to the Code and the Model Law.
The adoption of the International Code of Marketing of Breastmilk Substitutes by the World Health Assembly (WHA) in 1981 was a major landmark. It was supported by a vote of 118 to 1, with only the United States voting against it. The WHA has approved a series of resolutions in subsequent years to further clarify and strengthen the code. In May 1994 the United States approved the code through its approval of a WHA resolution supporting it. However, the United States government has not done anything to implement the code.
Another major step was taken on August 1, 1990 when 32 governments and 10 international agencies adopted the Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding. The declaration stated a variety of specific global goals, including the goal that "all women should be enabled to practice exclusive breastfeeding and all infants should be fed exclusively on breast-milk from birth to 4-6 months of age". In 1991 the UNICEF Executive Board passed a resolution (1991/22) saying that the Innocenti Declaration would serve as the "basis for UNICEF policies and actions in support of infant and young child feeding".
The Convention on the Rights of the Child, which came into force in 1990, says that states that are parties to it must provide assistance regarding nutrition and must recognize the child’s right to the highest attainable standard of health.
At the World Summit for Children held in September 1990, the overall target in relation to nutrition was: "Between 1990 and the year 2000, reduction of severe and moderate malnutrition among under-5 children by half." (As indicated by the Secretary General’s observation quoted at the opening of this essay, the intermediate target set for 1995 was not met.) The targets set in 1990 included a number of supporting elements related to reduction of the incidence of low birth weight, reduction of iron deficiency anemia, reduction of iodine deficiency disorders, etc. The item of central interest here was:
On March 15, 1991 the European Union adopted a Directive on Infant Formulae and Follow-Up Formulae which member countries were to implement through their national laws by June 1994. However, this EU directive is weaker than the International Code of Marketing of Breastmilk Substitutes.
In 1992, the World Declaration and Plan of Action for Nutrition agreed upon at the conclusion of the International Conference on Nutrition in Rome made several explicit references to breastfeeding. One of its pledges was to "to reduce substantially within this decade . . . social and other impediments to optimal breastfeeding". The Plan of Action asserted, in article 30, that "Breastfeeding is the most secure means of assuring the food security of infants and should be promoted and protected through appropriate policies and programmes." Article 33 stated that "Governments, in cooperation with all concerned parties, should . . . prevent food-borne and water-borne diseases and other infections in infants and young children by encouraging and enabling women to breast-feed exclusively during the first four to six months of their children’s lives." Article 34 provides a detailed call for action on promoting breastfeeding.
Since 1992 international organizations, national governments, and nongovernmental organizations have collaborated in organizing an annual global World Breastfeeding Week in the first week of each August.
In 1994 in Cairo the International Conference on Population and Development produced a concluding Programme of Action in which breastfeeding was advocated as an important child survival strategy. It also called for policies that would allow working women to breastfeed, for those in the informal (unsalaried) sector as well as those in the formal sector.
In 1995 the Platform for Action that came out of the Fourth World Conference on Women in Beijing called for promoting public information on the benefits of breastfeeding, implementing the International Code of Marketing of Breastmilk Substitutes, and facilitating breastfeeding by working women.
In 1995 and 1996 groups associated with the South Asian Association for Regional Cooperation prepared a SAARC Model Code for the Protection of Breastfeeding and Young Child Nutrition, comparable to the International Code of Marketing of Breastmilk Substitutes. It was adopted at the 3rd SAARC Ministerial Conference on Children of South Asia held in Rawalpindi, Pakistan in August 1996.
In May 1996 the World Health Assembly passed a resolution, WHA49.15, on Infant and Young Child Nutrition, in which it once again confirmed its support for previous international statements on infant nutrition, including the International Code of Marketing of Breastmilk Substitutes and the WHA’s subsequent resolutions on it, the Innocenti Declaration, and the World Declaration and Plan for Action for Nutrition.
All of this international action can be understood as supporting the International Code of Marketing of Breastmilk Substitutes and the Model Law. The linkages should be made explicit. The Code opens by "Affirming the right of every child and every pregnant and lactating woman to be adequately nourished as a means of attaining and maintaining health". However, it does not elaborate the meaning of that rights claim, in regard to either its source or its implications for action. Having been adopted in 1981, it could not have anticipated the later developments in international law. However, the linkages can be made in the national laws that are adopted to implement the Code.
The August 1996 draft of the Model Law does not say anything explicitly about the child’s or the woman’s rights. In future versions it should reaffirm their right to good nutrition. It should also refer to the affirmation of nutrition rights in other major international instruments. In particular, national legislation should offer a reminder of the binding character of the provisions on nutrition rights in the relevant human rights agreements to which the nation is a party, such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Also, the information and education section should call for education of parents and others about nutrition rights. They should be linked especially to article 24 of the Convention on the Rights of the Child. That article says that "States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health . . . " and that "States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures. . .
At times the woman and the infant may have conflicting interests. The conflict is raised in clear relief when it is argued that the infant has a right not only to be well nourished but, more specifically, that the infant has a right to be breastfed. This right can clash with the woman’s right to choose how to feed her infant.
Participants at a conference on Children’s Health, Children’s Rights, organized by the World Alliance for Breastfeeding Action (WABA), and held near Bangkok in December 1996, struggled with this issue of potentially conflicting rights for days. They devised an understanding on WABA and Human Rights which (after subsequent editing) says in part:
WABA interprets these general provisions of the CRC and the fact that breastfeeding is in the best interest of children and mothers imply that children have a right to mother’s milk as the only fully adequate food, and that mothers and children have a right to enjoy conditions that facilitate breastfeeding.
States Parties to the CRC and other international covenants have an obligation to respect, protect, and facilitate the fulfillment of the right to enjoy such conditions, by the removal of obstacles to breastfeeding and to appropriate complementary feeding and by the creation of supportive social and economic environments for parents and children.
This shall in no way be understood or perceived as implying that the mother has a duty to breastfeed, but rather as an obligation on States Parties to alter those circumstances that lead a mother to choose not to breastfeed.
A reluctant mother cannot be legally compelled to breastfeed on the grounds that that is best for the child. While it is true that legal actions must be based on the best interests of the child, it is assumed that normally the parents are the best judges of what is in the child’s best interests. The state should interfere in the parent-child relationship only in extraordinary situations, when there is extremely compelling evidence that the parents are acting contrary to the best interests of the child.
The infant has great interests at stake, but few resources to be used to press for preferred outcomes. Given the infant’s powerlessness, it is sensible to use the law to help assure that the best interests of the infant are served. However, while it is surely appropriate to use the law to protect the infant from health workers or formula purveyors with conflicting interests, it is not reasonable to use the law to compel an unwilling mother to breastfeed. Thus, for the purposes of framing appropriate law, the woman and infant can be viewed as generally having a shared interest in breastfeeding. The major concern should be with protecting the woman-infant unit from outside interference.
Respect means that at the very least the state itself must not interfere with the infant’s right to good nutrition. Thus, women who are government employees should be accommodated with arrangements that would allow them to feed their children as they wish. Women should not be required to interrupt breastfeeding in order to serve jury duty. Government interference can be an issue if the child, the woman, or both are held in the care of the state, in a hospital, prison, or other sort of institution. An unusual example of state interference is provided by the case of a United States Army helicopter pilot who was not allowed to rearrange her schedule as needed to breastfeed her baby, and was not allowed to leave the service.
Given that artificial feeding is inferior to breastfeeding, respect means that the state should not promote breastmilk substitutes.
The current draft of the Model Law does not speak of the obligations of the state to respect infants’ nutrition rights.
Protecting infants’ nutrition rights means the state has an obligation to stop others from interfering. Section 11 of the Model Law plainly says that health workers shall protect breastfeeding. The Code’s overall task of regulating the marketing of breastmilk substitutes may be seen as a means of protecting infants’ nutrition rights.
The facilitation of infants’ nutrition rights by the state is evident in the Model Law’s constraining the promotion of breastmilk substitutes, and in its call for information and education programs. The information and education is not limited to discouraging the use of substitutes, but also includes support for breastfeeding itself.
The fulfillment of infants’ nutrition rights means that under some conditions, if other efforts prove inadequate, the state is obligated to assure adequate nutrition directly. This may be accomplished through programs such as child feeding centers. Since the state has no capacity to provide breastfeeding directly, there is no fulfillment obligation on the part of the state with regard to this component of nutrition rights.
The Model Law already includes elements that call for the state’s respecting, protecting, facilitating, and fulfilling infants’ nutrition rights. Others could be added. It would be useful if they were explicitly described, under these categorical headings, as actions that the state is obligated to take for the realization of infants’ nutrition rights.
The Model Law, however, offers concrete proposals. Section 15 says "The Minister of Health is principally responsible for the implementation of this Act". It says the minister may call upon other ministries to ensure implementation, and it outlines the relevant powers and functions of the minister.
Section 16 calls for the creation of a National Advisory Board for the Promotion and Protection of Breastfeeding. Details are provided on its composition and on its powers and functions.
Sections 20, 21, and 22 describe the creation of Inspectors who inspect and, where appropriate, "institute prosecution with respect to violations of this Act . . . " The Inspectors constitute the monitoring apparatus.
Thus, the Model Law clearly identifies the primary agents of implementation on behalf of the state: the Minister of Health, the National Advisory Board for the Promotion and Protection of Breastfeeding, and the Inspectors. It also provides considerable detail on how they are to function, including means for registration of designated products (Section 19) and penalties and procedures (Sections 23-33).
The response to violations prescribed in Section 23 are penalties in the form of imprisonment or fines. Section 24 provides for cease and desist orders. Section 27 provides for suspension or revocation of licenses or permits. These are rather conventional responses to violations, focusing on punishment. Some space for other approaches is provided by Section 28 which allows for formation of a special court or special administrative procedures. There are possibilities for more creative and constructive responses including, for example, the imposition of specific reporting requirements on manufacturers and distributors, and the creation of educational programs for them.
My purpose here is not to get into the details of the response mechanism, but simply to point out that there is a need for clearly specified agencies and procedures. The Model Law outlines these things. However, the proposed mechanisms are centered on the management of breastmilk substitutes, and not explicitly on the implementation of specific human rights. Certainly the management of breastmilk substitutes, like every other kind of nutritional support activity, can be viewed as an aspect of the implementation of rights. That linkage should be established explicitly.
As presently drafted, the Model Law describes a response mechanism in detail, but it is not explicitly framed as a means for realizing rights. No provisions are made for having the woman or any representative of the child call the government to account if it fails to fulfill the requirements of the act. The absence of legal recourse suggests that the act is not based on the understanding that the child and the woman have particular nutrition rights.
Given the deep experience of the International Code Documentation Centre and its affiliates in holding governments and manufacturers to account with respect to the International Code of Marketing of Breastmilk Substitutes, the Model Law could say much more about how organizations could be established within nations to monitor performance with respect to the Code and to infants’ nutrition rights generally.
Women breastfeeding in public often have been harassed and told to stop, and some have even been charged with obscenity or with unlawful nudity. Legislation has been adopted in some places to protect them. For example, Section 383.015 of the Florida Statutes, adopted in 1993, affirms that "A mother may breast feed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breast feeding." It would be useful to review other comparable laws and propose generally acceptable model language.
There is a long history of employed women not getting maternity leave that would allow for breastfeeding, and being prohibited or inhibited from breastfeeding at their places of employment. Some progress has been made. As the Secretary General reported:
Lactation suppression drugs are sometimes used when women use breastmilk substitutes. They are potentially dangerous, and thus should be regulated.
Some of the manufacturers are moving beyond formula to heavily promote complementary foods and follow-up foods for older children, and also special "milk for mothers". Some of these products endanger children’s health in much the same ways as the breastmilk substitutes. Lawmakers should be offered guidance on how these new efforts should be controlled.
In the United States, the Special Supplemental Nutrition Program for Women, Infants, and Children, commonly known as WIC (for Women, Infants, and Children), serves about one-third of U.S. infants. The program, overseen by the Food and Consumer Service of the United States Department of Agriculture, provides supplemental food, nutrition and health education to low income women and children whose family income is below specified eligibility standards. In fiscal year 1991 WIC state agencies spent $404 million on infant formula. In fiscal year 1994 they spent $564 million on formula.
A small number of manufacturers control most of the formula market. The lack of competition results in inflated retail prices. To bring its costs down, WIC has multi-state contract arrangements to coordinate purchase of formula. The rebates provided by the manufacturers to WIC for its purchases can be seen as a means through which the manufacturers retain and expand government purchases and promotion of their products. WIC purchases about a third of all formula sold in the United States.
The purpose of the rebate contracts is said to be to contain costs. However, the program can be viewed as a systematic means for promoting formula use. As the USDA itself says of the WIC infant formula rebate system, "By negotiating rebates with formula manufacturers, States greatly increase the amount of formula they can provide". WIC constitutes a large-scale mechanism for distributing formula to families at no cost to them. This seems to be a highly questionable means of promotion in relation to the standards set out in the International Code of Marketing of Breastmilk Substitutes. The practice is particularly serious because it is undertaken by agencies of government. In future model laws relating to infant formula promotion, it would be useful to specify the conditions under which government-sponsored nutrition programs would be permitted to distribute infant formula.
Partly in response to vigorous complaints about its distribution of formula, WIC has launched efforts to promote breastfeeding. Legislation in 1994 (P.L.103-448) established a formula requiring WIC agencies to spend $21 per year for each pregnant or breastfeeding woman in support of breastfeeding promotion. Thus, since 1994 U.S. federal law has required the state WIC agencies collectively to spend around $20 million a year on this effort. This should be compared with the more than $500 million spent each year for formula. Perhaps public assistance programs should go further than providing breastfeeding education and information, and consider providing increased stipends to women who breastfeed their children. If there is to be any kind of rebate or subsidy for purchased products, perhaps it could be used to support increasing use of human milk purchased from milk banks. However, there are obstacles. While there are now some countries in which prescriptions are required to purchase bottle feeding supplies, in WIC operations prescription are needed for the purchase of human milk.
At the conclusion of the World Food Summit in Rome in November 1996 the United States issued a number of "interpretive statements" explaining its understandings with respect to the summit’s final declaration. The United States said it understands the "right of everyone to have access to safe and nutritious food" to mean that "governments should not interfere with the effective opportunity or ability of their citizens to obtain safe and nutritious food". In the terms laid out in this essay, this means the United States accepts the obligation to respect, but not the obligations to protect, facilitate, and fulfill the right to food. This minimalist position trivializes the meaning of the right to food.
Unofficially, the U.S. has at times caricatured the position of food/nutrition rights advocates by suggesting that if such rights were recognized, the U.S. government might be obligated to provide food to all claimants, foreign and domestic, virtually without limit. The United States was able to suggest that food/nutrition rights mean something absurd only because the advocates have not yet laid out clear, strong positions on the meaning of such rights. In particular, they have not spoken about the limits of these rights. Thus they have left space for the fear that the corresponding obligations also would be unlimited. No government would expose itself to unlimited obligations.
Food/nutrition rights, like other human rights, need to be recognized
primarily by national governments in relation to people living under their
own national jurisdictions. In my judgment rights will not be taken seriously
as international obligations unless they are first taken seriously as domestic
obligations. Thus the best place in which to articulate the meaning of
food/nutrition rights in concrete detail is in national law. The effort
can begin with infants’ nutrition rights, where there is clearly no basis
for fearing an unlimited obligation on the part of government.
OUTLINE OF THE MODEL LAW
(International Code Documentation Center, August 1996)
CHAPTER I INTRODUCTORY
Section 1. Short Title and Commencement
Section 2. Definitions
CHAPTER II PROHIBITIONS
Section 3. Sale of a designated product
Section 4. Promotion
Section 5. Prohibitions related to labels of designated products
Section 6. Prohibitions related to labels of infant formula and follow-up formula
Section 7. Prohibitions related to labels of skimmed or condensed milk
Section 8. Prohibitions related to labels of low-fat and standard milk
Section 9. Prohibitions related to labels of bottles and teats
Section 10. Prohibitions related to labels of pacifiers
CHAPTER III HEALTH WORKER RESPONSIBILITIES
Section 11. Health Worker Responsibilities
CHAPTER IV INFORMATION AND EDUCATION
Section 12. Informational and Educational materials about Infant Feeding
Section 13. Info. and ed. materials about infant formula, follow-up formula or feeding bottles
Section 14. Submission of materials to Advisory Board
CHAPTER V ADMINISTRATION
Section 15. Implementation
Section 16. National Advisory Board for the Promotion and Protection of Breastfeeding
Section 17. Administration of the Board
Section 18. Powers and functions of the Advisory Board
Section 19. Registration of designated products
Section 20. Inspectors
Section 21. Powers of inspectors
Section 22. Procedure for inspectors
CHAPTER VI PENALTIES, PROCEDURE
Section 23. Penalties
Section 24. Cease and desist orders, etc.
Section 25. Certificate of registration may be suspended or revoked
Section 26. Professional license may be suspended or revoked
Section 27. License, permit or authority may be suspended or revoked
Section 28. Special Court or administrative adjudication
Section 29. Appeal
Section 30. Strict liability for officers, directors, etc.
Section 31. Institution of prosecution
Section 32. Public enforcement
Section 33. Power to make rules
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