Of principles and plain packaging: is infant formula different from tobacco?

Legal in South Africa?

'Plain packaging' of tobacco products is a subject which many readers of this weblog feel has been covered to the point of exhaustion, if the email he receives from some of his more interactive readers reflects the mood of the silent majority.  However, the subject refuses to go away and here's an interesting twist on it which even those who are fed up with the branding sector and the tobacco industry should pay attention to. This is because, in "Formula For Plain (Bland) Packaging", posted on the IPSTELL weblog, 3 December 2013, Stellenbosch Senior Lecturer Lize Mills writes on another area of application of plain packaging principles, one which has been little debated in brand circles within the European Union: infant formula in the context of South Africa.  Her post is a long one, from which some short extracts are quoted here:

"As of 6 December this year you will no longer see a nurturing mother feeding her happy baby a bottle of formula milk as an advertisement in any newspaper, magazine, on a website or on television. In fact, you will not see the names of any brand or logos of infant formula, follow-up formula or powdered milks, or feeding bottles, teats and feeding cups for infants being promoted anywhere. Well, you will still see the names on the products as you are standing in front of the shelf in the supermarket and wondering which product is the best option for your little angel. You will have to try and make sense of it all on your own, however, since you will not be allowed to ask your health care practitioner for advice on your options. The manufacturers of these products will also not be allowed to give you any information or advice on infant nutrition.

"On 6 December 2013 regulation 7 of Regulations R991, relating to foodstuffs for infants and young children will come into operation. Still yet to enter into force, however, are regulations 2 to 6 of R991, scheduled to happen on 6 December 2014. After this date, you will no longer see any pictures on any infant and follow-up formula, infant or follow-up formula for special dietary or medical purposes; liquid milks, powdered milks, modified powdered milks, or powdered drinks marketed or otherwise represented as suitable for infants or young children; feeding bottles, teats and feeding cups with spouts, straws or teats or complementary foods (the “designated products”).  ...

Where have you heard about something like this before, I hear you ask? Plain packaging for tobacco products of course, and maybe for alcoholic beverages too. You can see the clear link with baby food, can’t you?

On 6 December 2012 the South African Minister of Health, Dr Aaron Motsoaledi, published regulations in terms of s 15(1) of the Foodstuffs, Cosmetics and Disinfectants Act, 54 of 1972. In terms of these regulations a number of restrictions are placed on the labelling, advertisement and promotion of the designated products. ... The purpose of these regulations, or so it has been explained by the Department of Health, is to promote breastfeeding. At the time of the publication of the regulations in December 2012, the Department of Health’s Director for Nutrition explained that exclusive breastfeeding rates in South Africa is at an all-time low of 8% and infant mortality rates stand at 40 per 1,000 live births. As a result 

“South Africa needs to put into place a comprehensive legal framework that protects parents and health professionals from aggressive or inappropriate marketing of breast milk substitutes”. 

It can therefore be assumed that regulations R991 form part of this “legal framework that protects” consumers. ...

Regulation 7 of R991 prohibits promotional practices in respect of infant and follow-up formula, and other powdered milks or powdered drinks marketed or otherwise represented as suitable for infants or young children; feeding bottles, teats and feeding cups with spouts, straws or teats; or any other products that the Minister may publish by notice in the Gazette. Despite the fact that regulation 1 provides a definition of what it means to “promote”, regulation 7(2) describes the list of prohibited practices to include, inter alia, sale devices such as rebates, benefits in kind, kickbacks or any other pecuniary advantages, special displays to promote sales, advertisements about the availability of the product at a specific retail outlet and the price of the product, tie-in sales, discounts in any form, competitions with prizes, or any other incentives and gifts. The list goes on: no “direct or indirect contact between company personnel and members of the public in furtherance of or for the purpose of promoting the business of the company with regard to the products referred to in sub-regulation 7(1)” and for purposes of these regulations “indirect contact” specifically includes internet sites hosted on behalf of a South African entity or an entity that does business in South Africa, television and radio, telephone or internet help lines and mother and baby clubs but excludes contact in regards to product quality complaints and adverse events; no distribution of any information or educational material on the nutrition or feeding of infants and young children; no promotional items such as stationery, T-shirts or other items of clothing etc that refer to the designated products; no exhibition of the brand name of a designated product when used at any event for the general public; and no advertisements anywhere. ...

Regulation 7(4) prohibits any manufacturer, distributor, retailer, importer or person on behalf of such, from producing or distributing any educational material on infant and young child feeding that promotes any of the identified products. Regulation 7(5) extends even further by prohibiting any of the above-mentioned persons from producing, distributing or presenting educational information relating to infant and young child nutrition.

Other strict requirements regarding the labelling and packaging of the designated products are found in regulations 2 to 6.  ... The company logo and brand name will be permitted, provided that they do not contain a picture of an infant, young child or other humanised figure. The label of the relevant products may also not refer to, or promote or advertise any other designated product. Any incentive, enticement or invitation of any nature, which might encourage consumers to make contact with the manufacturer or distributor of a designated product which might result in the sale or the promotion of a designated product for infants or young children, is proscribed from appearing on the label or in the marketing of such a product. Apart from other strict instructions relating to the appearance and wording of the labelling, the regulations also contain a mandatory provision that the words 

“[t]his product shall only be used on the advice of a health professional” 

shall appear on the front main panel of the label of a designated product. This is followed by an instruction that a prominent statement printed in bold letters of at least 3mm in height stating “USE UNDER MEDICAL SUPERVISION” shall also appear on the label. Regulation 4(3)(b) prohibits the use of expressions or names that may be understood to identify the product as suitable to feed infants. ...

Apart from the restrictions which these regulations place on the freedom of commercial speech and consumers’ rights, R991 prohibit a brand name or company logo from including a picture of an infant, young child or a humanized figure on the packaging of the designated products. This means that a company such as Gerber, producer of a number of baby food products, may not use their logo portraying the picture of a baby’s face, in South Africa. Products such as FIRST GROWTH MILK® may no longer use this name for their brand of milk in South Africa since regulation 4(3)(b) prohibits the use of expressions or names that may be understood to identify the product as suitable to feed infants. ..."

The blogpost goes on to examine arguments that these restrictions are not only a contravention of the constitutional protection of property under South African law but also infringe the principle of freedom of commercial speech [says Merpel: it would be foolhardy to ignore the constitutional dimension to IP law in South Africa in light of the ruling of the country's Constitutional Court in SABMiller v Laugh It Off, the famous 'BLACK LABEL/BLACK LABOUR' dispute, noted here. But we don't yet know how far that court will protect freedom of speech by brand owners rather than against brand owners ...].

This Kat takes a big interest in infant formula, because Mrs Kat is a breast-feeding counsellor with the NCT (formerly the National Childbirth Trust) and he has been privy to many discussions on the advantages and disadvantages of different means of feeding newborns.  At this moment, though, he is struggling to find the right form of words to explain why, even as a militant non-smoker, he is so opposed to plain packaging for tobacco products yet feels that the same restrictions are entirely justified in respect of infant formula.  Is it because

• tobacco products are consumed by those who purchase them and who therefore have the right to decide both whether to smoke and which brand to smoke, while infant formula is consumed by those who are utterly helpless have no say in whether they are fed by breast or by one or other infant formula?
  
• it is more than half a century since there was any credible suggestion that smoking might be good for you, and every smoker today now knows that it isn't, while it is still erroneously believed by many people that infant formula is as least as good for an infant as formula, if not better?
  
• both the names and the imagery on many infant formula and related products suggest that their consumption or use is beneficial for the infant, while tobacco brands do not? [Merpel wonders whether the tobacco brand corresponding to FIRST GROWTH MILK might be FIRST COUGH FAGS]
  
• anyone who has ever been close to a mother shortly after she has given birth will be aware how easy it is for extreme fatigue to set in and, with it, feelings of depression and inadequacy which are exacerbated by concern as to the rate at which a baby gains weight [nb human babies will lose between five and ten percent of their birth weight before they start gaining]. The branding, packaging and advertising of infant formula, carrying encouraging messages of growth, can both enforce maternal feelings of inadequacy and despair and offer an apparent 'quick fix'.  There is no obvious analogy here with tobacco products.

Whatever may be the merits of infant formula, and it must be conceded that not every mother is able to breast-feed, it would seem that those merits do not outweigh the disadvantages in a developing country such as South Africa, where not all new mothers have access to clean drinking water and facilities for keeping equipment sterile, where the purchase of infant formula may use up a far larger proportion of parental income than in wealthier parts of the world, where consumers may be more vulnerable to the promise on the package than more cynical consumers elsewhere might be, and where the many nutritional advantages and immunities gained by drinking human breast milk where that is an option can contribute to reducing the country's distressingly high rate of infant mortality.

Since we live in an age of evidence-based policy-making, we should all pay careful attention to South Africa's birth statistics in the coming years.  If the infant mortality rate falls as the proportion of breast-feeding mothers rises, we will at least have a show of correlation and, if no better explanation than the new legal regime can be found, it will be viewed as a matter of causation. If not, the legislators had better do some serious thinking.

One small final question: will the new rules cause an outbreak of cut-price and difficult-to-police pirate infant formula, by analogy with the early Australian experience of plain packaging of tobacco products? This Kat thinks not, since the cost of infant formula, unlike that of tobacco products, is not artificially lifted by a high rate of taxation. Once again, we should have the evidence soon enough.