Legislation: Discouraging alternatives to breastfeeding

This is according to Marilyn Krige, partner at Adams and Adams, leading attorneys in intellectual property law.

The regulations, published by the Minister of Health, Dr Manto Tshabalala-Msimang, relate to marketing and information messages on the packaging of specially formulated goods and milk powders for infants and children up to 36 months. These are contained in recent regulations tabled in terms of the Foodstuffs and Cosmetic and Disinfectants Act.

“While I believe that most health professionals will agree that breastfeeding is best for your baby, the regulations seem to take the moral high ground that breastfeeding is to be encouraged, even where scientific evidence seems to suggest that HIV and AIDS may be transmitted through breast milk. Even the best busy mothers use bottles to feed their babies, using expressed milk or supplement their breast milk feeds with formula food.”

Krige says the main thrust of the regulations is to encourage breastfeeding and to discourage formula feeding up to 36 months.

“In fact, manufacturers of formulae are not even allowed to have care or help line numbers on their products to advise mothers about their formulae. This means that even quality problems cannot be reported to manufacturers. It seems that the Minister is of the view that help line numbers will encourage prospective mothers to use certain formulae, rather than relying on what nature has provided.”

Krige says the warnings that will now have to appear on milk products are significant.

“The size of lettering has been stipulated, the products must state that formula powder is not sterile, may contain harmful enzymes and may contain harmful organisms which may grow once it is prepared with water. Furthermore, on the packaging, only pictures of cups or bottles can be used and information on how the product is to be mixed. No pictures of babies or infants being fed either with a cup or with a bottle may appear on the packaging.

“Furthermore, the proposed legislation prevents the label on any product which constitutes an infant formula from showing any graphic representation, including logos and brand names and drawings, other than those which show how the formula should be prepared and how the product should be sterilized. Even the use of the established trade mark properties and brands will not be permitted on the label of these specific food types.

“ No health claims may be applied to a designated list of products, including formula milk, nor may any negative claims be made about products, nor may any comparisons be made between formula milk and human milk.

“It will also no longer be possible to claim that the product is suitable for infants. How the population would be able to distinguish between rice cereal for small children and infants not aimed at the adult population, is difficult to foresee,” she says.

“Where one of the greatest risks is not so much the quality of the powder milk but rather the quality of the water used to mix it in, labeling must now also be added to indicate that only portable, previously boiled water should be used. Labeling will need to be in more than one official language. It is a requirement that a label for infant formulae, follow up formulae, special dietary products intended for infants, small children and children should be in English and at least five other official languages, one of the Nguni group, one in the Sotho group, Afrikaans, Xitsonga and Tshivenda. In addition, no tokens, prizes, gifts or any other incentive may be offered with the product covered by the regulations. No incentives for other products belonging to the same manufacturer may be offered. Sweet and condensed milk now needs to bear a very clear warning that this is not for infant feeding.”

Krige says the proposed amendments have a section relating to the labeling to be applied to feeding bottles and teats.

“These products may also not be promoted through health care professionals, institutional pharmacies or private health care facilities. Sale and the use of rebates, benefits, kickbacks or other financial advantages or special displays to promote sales, are not permitted. Indirect or direct contact between company personnel and members of the public for the purpose of promoting the business of the company and its product, via, for example, the internet, television, radio and mother and baby clubs will also not be permitted. This may take away a mother's right to free choice and her right to information.

“This legislation will no doubt meet with significant challenges from the manufacturers of food and beverages for infants and young children.

“All interested parties may submit their comments to the Minister for consideration by 26 January 2008. If not, people concerned will have to live with the regulations as they are,” says Krige.

Adams & Adams
Sinah Pochana
Tel: 012 481 1689