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PHCAPvsDuqueIII

Facts:
Before theCourtisapetitionfor
certiorariunderRule65of theRulesofCourt,seeking
to nullify Administrative Order (A.O.) No. 20060012 entitled,
Revised Implementing
Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk
Code,"
Relevant International Agreements, Penalizing Violations Thereof, and for
OtherPurposes
(RIRR).
Milk Code was issued by President Cory Aquino under the Freedom Constitutionon
Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks
to give effect to Art 11 of the Intl Code of Marketing and Breastmilk
Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From
19822006, The WHA also adopted severe resolutions totheeffectthatbreastfeeding
should be supported, hence, it should be ensured that nutrition and health claims are
notpermittedforbreastmilksubstitutes.In2006,theDOHissuedtheassailedRIRR.

Petitioner:
Petitioner contends that the RIRR is not valid as it contains provisions that are not
constitutionalandgobeyondthelawitissupposedtoimplement
Petitioner also questioned whether or not there is an absolute prohibition on
advertising which is unconstitutional as provided by section 11 of the RIRR which
statesthat:

SECTION 11.
Prohibition
No advertising, promotions, sponsorships, or marketing materials and
activities for breastmilk substitutes intended for infants and young children up to twentyfour (24) months, shall be
allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products
coveredwithinthescopeofthisCode.

Respondents:
The defense of theDOH is that the RIRR implements not only the MilkCodebutalso
various international instruments regarding infant and young child nutrition. It is
respondents' position that said international instruments aredeemedpartofthelaw of
thelandandthereforetheDOHmayimplementthemthroughtheRIRR.
The defense also statedthatsection11isnot anabsolutebanonadvertisingofbreast
milk substitutes because the IAC or the InterAgency Committee is theproperagency
that
can evaluate some advertising and promotional materials, subject to the
standardsthatDOHhavestatedasprovidedbysection12oftheRIRR.
The defense also admitted before the court that there was indeed a prohibition on
advertising of breast milk substitutes, however, there are exceptions and standards
that the DOH have been set, One of which is that, the InterAgency Committee(IAC)

can allow if the advertising and promotions will not undermine breastmilk and
breastfeeding

TheCourt:

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of


Administrative Order No. 20060012 dated May 12, 2006 are declared NULLand VOID
for being
ultra vires
. The Department of HealthandrespondentsarePROHIBITEDfrom
implementingsaidprovisions.
The Temporary Restraining Orderissued on August 15, 2006 is LIFTED insofar as the
restoftheprovisionsofAdministrativeOrderNo.20060012isconcerned.

Sections11oftheRIRRisclearlyviolativeoftheMilkCode.
However, although it is the IAC which is authorized to promulgate rules and
regulations for the approval orrejectionofadvertising, promotional,orothermarketing
materials under Section 12(a) of the Milk Code, said provision must be related to
Section 6 thereof which in turn provides that the rules and regulations must be
"pursuant to the applicable standards provided for in this Code." Said standards are
setforthinSections5(b),8(b),and10oftheCode.
Thus, the DOH has the significant responsibility to translate intooperationaltermsthe
standards set forth in Sections 5,8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.It is pursuant to such
responsibility that theDOH correctlyprovided for Section 13 in the RIRR whichreads
asfollows:

SECTION 13. "


Total Effect
" Promotion of products within the scope of thisCode must be objective and
should not equate or make the product appear to be as good orequal to breastmilkorbreastfeedinginthe
advertising concept. It must notinanycaseunderminebreastmilkorbreastfeeding.The "total effect"should
not directly or indirectly suggest that buying their product would produce better individuals, or resulting in
greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggeratedandunsubstantiatedclaim.

Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control
over the information content of advertising, promotional and marketing materials on
breastmilk
visavis breastmilk substitutes,supplementsand other related products. It
also sets a viable standard against which the IAC may screen suchmaterials before
theyaremadepublic.