BREAST

MILK VS. FORMULA

Main Question:
How efficient is the judicial process in resolving health and nutrition policy conflicts that
inevitably entail a cost-benefit calculus?
Landmark Case:
Pharmaceutical and Healthcare Association of the Philippines (PHAP) v Health Secretary
Francisco Duque III et al.
Issue: Validity of the implementation of the national MILK CODE(E.O. 51, 1986)
Milk Code: government promotes and protects breastfeeding for infants, mandatory approval by DOHs
Inter-Agency Committee of any form of marketing of breastmilk substitutes/supplements, product
labelling requirements for breastmilk substitutes to say that breastmilk is superior, health care facilities
are prohibited from promoting breastmilk substitutes.
Story:
1) Philippines Milk Code was enacted in 1986. (This is similar to International Code of
Marketing of Breast Milk Substitutes, 1981)
2) Rampant violations of ICMBMS were seen worldwide (countries still heavily influence
consumers to buy milk formulas)
3) The Philippines saw aggressive promotion of breast milk substitutes that was against the PMC
rules (Yung Promil-Kid campaign example nun. False branding.)
4) Due to this the REVISED IMPLEMENTING RULES AND REGULATIONS of the PMC was
updated.
RIRR: Prohibited breastmilk formula/supplements promotion and marketing. Create additional labelling
requirements saying there is no substitute for breastmilk, grants DOH to authority to sanction violators.
5) The purpose of RIRR was to suppress market power of formula companies (PHAP) due to
asymmetric information (more or better information held by one transacting party) from producers to
consumers.
6) PHAP goes to court claiming that PMCs promotion of breastfeeding cannot automatically be
equated with a total ban on marketing breast milk substitutes/supplements.
Ruling:
Who wins? Both sides.
PHAP wins because:
SC upheld PHAPs claim that PMCs promotion of breastfeeding cannot automatically be
equated with a total ban on marketing breast milk substitutes/supplements. Court struck down the
marketing ban under the RIRR for exceeding DOHs existing power to control breastmilk information
and also struck down RIRR-created administrative sanctions that were not existent in the PMC.
DOH wins because:
All other provisions in the RIRR were approved as it is in consonance with the objective, purpose, and
intent of the Milk Code.
Why is the case important? (In relation to main question)
1) It showed the difference between political process (which was an option both parties could have
taken) and litigation (judicial process)
Political Process relies on exchange, bargaining, and meditation to accommodate conflicting
interests and seek compromise

BREAST MILK VS. FORMULA

Litigation resolves conflicts through the authoritative articulation and argumentation of norms
2) Showcased Strengths and Weaknesses of Litigation
Strength has an image of impartiality and greater moral authority as compared to political
process. (walang bayaran or strong-arming on either side since the court decides and there is no
bargaining)
Weakness litigation causes bipolarization of conflict because offending and aggrieved parties
want to make a case prosper before the courts. (litigation causes parties to split further apart which makes
compromises and consensual decisions harder to arrive at)
3) Showed the Limits of the Judicial Process (with regards to nutrition policy and health marketing)
a) Lawsuits are bipolar and tend to produce binary choices
-Policy choices become for or against the ban regardless of its actual costs and
benefits. This impoverishes policy debates by limiting the policy options available and making
consensual decisions unavailable.
b) Judicial process is self-contained
-too principle-prone and principle-bound causing to follow things by the book and fail to
see the bigger picture which makes in generally unsuitable for health and nutrition promotion. SC rejects
or approves arguments based on technicalities(what is written) rather than the overall impact.
c) Litigation is party initiated and party controlled
-courts are passive arbiters so they depend on bipolar forces(parties) to fight it out(frame
issues, gather evidence and info)
-this causes the parties to form strategies that suit them the best, often disregarding the
broader implications on health and nutrition objectives/policies
d) Adjudication is retrospective
-things are judged based on past information
-not suitable for things like Health and Nutrition where causal relationships, recurrent
patterns of behaviour, and future impact of policy choices matter (things change daily so you cant judge
solely on past data)
-this makes the judicial ability to predict the consequences of nutrition related issues like
breastfeeding extremely limited
e) Rights and remedies are interdependent
-unlike political process which involves cost-benefit analysis and policy impacts and
alternatives in decision making, judiciary focuses on rights and duties
-this strict focus restricts alternative available to courts and hinders cost balancing
approaches just so that courts can grant remedies to violated rights at any cost
f) Courts anticipate the best-case or worst-case scenarios, rather than typical situations
-this encourages more asymmetric information to be funnelled through the courts (since
you want to win, you try to find info that helps prove your case even though that info doesnt necessarily
represent the majority)
g) Adjudication is less amenable to policy review than other advocacy approaches
-cannot easily evaluate the direct or indirect consequences of a policy decision
-ex: SC validated the total ban on gifts and donations by formula companies but it could
not anticipated how it could be bypassed by their unbanning of marketing activities
-results in piecemeal solutions rather than coordinated solutions (policy questions are
answered one by one instead of answering them as a whole and making it more efficient)
Conclusion:
Courts normative orientation and methodological constraints are further restricted by the concerns of the
individuals or groups involved in specific cases. The broader implications and overall objectives of public
health are therefore seldom efficiently addressed through the judicial process. Litigation and adjudication
are not necessarily superior or equal to the political/administrative process.