Why non-binding international regulatory instruments do not work: A case study on breastfeeding protection

In 1981, the World Health Assembly (WHA) adopted the International Code of Marketing of Breastmilk Substitutes (the Code), to date completed and extended by fifteen subsequent relevant WHA resolutions forming integral part of it. The Code aims to ensure that parents can make fully informed decisions about infant and young child feeding by banning marketing practices that undermine breastfeeding. The Code thus contributes to safeguarding the health of infants and young children. In 1989, the Convention on the Rights of the Child (CRC) has enshrined breastfeeding protection, promotion and support in its article 24, which articulates the right of the child to the enjoyment of the ‘highest attainable standard of health’. The CRC’s General Comment No. 15 (2013), which interprets this right, specifies that besides States’ obligation to implement and enforce the Code (para 44), baby food companies have the direct obligation to comply with it in all contexts (para 81, emphasis added).

Notwithstanding this obligation, since 1981, baby food companies have systematically violated the Code provisions by malevolent marketing practices and tactics that mislead consumers and health professionals. The latest monitoring report Breaking the Rules 2014 published by the IBFAN’s International Code Documentation Centre covers 27 companies and presents 813 violations in 81 countries. It reminds the world that breastfeeding rates will continue to decline with the inevitable consequence of increased mortality and morbidity in infants and young children as long as corporate strategies that violate the Code continue. At present, there is no effective global mechanism that would ensure accountability of baby food companies which all seem prone to evade their human rights obligations in the absence of an effective sanction mechanism. Relying on implementation of the Code at country level has proven to be an unsatisfactory solution as all over the globe, baby food companies systematically resisted these efforts. Even in the minority of countries that have been successful and adopted adequate laws to regulate marketing of breastmilk substitutes, these companies, using their political influence and economic power, directly challenged the domestic law (e.g. in India) or resisted the adoption of enforcement mechanisms (e.g. in the Philippines).

The 33-year experience of Code implementation provides a strong argument to illustrate the necessity of a binding treaty on obligations of TNCs under human rights, a crucial step to the fulfilment of human rights of every human being, in this particular case of every child. Non-binding international recommendations, such as the Code, or “voluntary” corporate social responsibility measures, such as those indicated in the UN Guiding Principles, have failed to make TNCs liable for their human rights violations. Were a binding treaty on TNCs’ obligations adopted, violations of child rights caused by baby food companies would no doubt diminish, and those identified could be prosecuted and firmly sanctioned by an independent international judicial body. The treaty would help ensure the right of children to adequate food and nutrition as well as to health through the respect of the Code at global scale.

Breastmilk Substitutes Undermine Breastfeeding in China (CESCR)

On the 8^th of May 2014, the Committee on Economic, Social and Cultural Rights considered the second periodic report of China as well as reports of the Special Administrative Region of Hong Kong and of the Special Administrative Region of Macao on the implementation of the International Covenant on Economic, Social and Cultural Rights.

In view of the session, IBFAN presented an alternative report on the situation of infant and young child feeding in China, prepared by IBFAN East-Asia.

General overview of breastfeeding

The report shows that in China, breastfeeding declined rapidly during the 1980s due to the promotion of breastmilk substitutes and inappropriate medical practices. With the implementation of the Baby-Friendly Hospital Initiative since 1992 and the national regulation on the marketing of breastmilk substitutes (China’s Regulation) entered in force in 1995, breastfeeding’s superiority has been recognized and mothers are encouraged and supported to breastfeed their infants. However, breastfeeding promotion in community and work place has not yet received enough attention. One of the challenges regards the popularity of formula feeding and persistence of inadequate feeding practices such as giving water to infants under 5 months. Another challenge is the ban the marketing promotion of infant formula which undermines mothers’ confidence on successful breastfeeding. It is difficult for health authorities to supervise, conduct training and reassessments of the baby-friendly health facilities in China given the great number of concerned facilities (over 60,000). Finally, it is hard to ensure mothers’ entitlement to paid maternal leave and breastfeeding facilities, especially considering the rapid evolution of lifestyle in China.

Discussion on infant and young child feeding

No specific questions were raised on the infant and young child feeding.  

Nonetheless, the experts raised questions about the separation of mothers and children in the Hong Kong Special Administrative Region, affecting thousands of children, as there was no legislation that ensured the right of a mother to live with her children. In addition, the experts also raised the issue of pre-natal sex selection because of boy preference, as well as forced abortion, even in the third trimester. The adoption of Chinese babies by overseas parents has also been addressed as a problematic issue; indeed, mostly 100 per cent of these adopted babies were girls.

In relation with maternity protection, we note that the delegation of China has stated that some 46 % of the working population is made of women.

CECSR Concluding Observations

In its Concluding Observations, the Committee recommends China to establish a clear regulatory framework for companies and to adopt appropriate legislative and administrative measures to ensure legal liability of companies (para 13). Moreover, the Committee recommends that the State take measures to eliminate multiple-discrimination faced by rural women in particular in access to health (para 16).  After expressing its concern about the situation of food security in some of the poor areas, the Committee urges the State to strengthen its efforts to protect the right to adequate food.  Indeed, the State should intensify its efforts in order to address effectively the situation of food insecurity and child malnutrition in poor rural areas.  The enforcement of the Food Safety Law is desirable to strengthen its efforts on food safety supervision and to ensure the production, processing, distribution, marketing and consumption of safe food (para 29). 

In addition, the Committee recommends China to undertake all necessary measures to improve its health care and services to guarantee the enjoyment of the right to good quality and affordable health care to all persons in China.  On the same note, a recommendation is also made to increase the budgetary allocations to the health sector and to strengthen training for health care professionals (para 33). 

Besides, the Committee emphasizes the importance of awareness-raising activities aimed at promoting understanding of the modes of transmission of HIV among the population (para 34).

Finally, the Committee urges the State party, Hong Kong, China and Macao, China to build a systematic data collection (para 61) and encourages the State party to engage all relevant actors including NGOs in the process of discussion on the implementation of the present concluding observations at national level (para 65). 

General Comments on the right to health and on business and child rights

The CRC Committee issued two new General Comments in April 2013: General Comment No. 15 on ‘the right of the child to the enjoyment of the highest attainable standard of health (art. 24)’ and General Comment No. 16 on ‘State obligations regarding the impact of the business sector on children’s rights’. These are two very important documents which frame the importance of breastfeeding within the right of the child to health and to adequate food and nutrition as well as to survival, growth and development identifying both Sates’ obligations but also business sector’s responsibilities.

General Comment 15 urges States, in the effort of diminishing infant and child mortality, to devote particular attention to neonatal mortality and are suggested, inter alia, to “pay particular attention to ensuring full protection and promotion of breastfeeding practices”. Moreover, “Exclusive breastfeeding for infants up to 6 months should be protected and promoted and breastfeeding should continue together with appropriate complementary foods preferably until two years of age as feasible. States’ obligations in this area are defined in the “protect, promote and support framework”, adopted unanimously by the World Health Assembly” in the Global Strategy for Infant and Young Child Feeding.

In order to prevent negative impact of marketing on children’s right to health, survival and development, States are required adopt preventive measures including appropriate and effective regulation and monitoring of advertising and marketing industries. The General Comment 16 specifically calls on States “to implement and enforce internationally agreed standards concerning children’s rights, health and business including the [...] International Code of Marketing of Breast-milk Substitutes and relevant subsequent World Health Assembly resolutions”.

Read the full General Comments here.

Human rights recommendations on breastfeeding by the Committee on the Rights of the Child (64th session)

The 64^th session of the Committee on the Rights of the Child (CRC Committee) took place in Geneva from 16 September to 4 October 2013. The Committee reviewed the progress of the implementation of the Convention on the Rights of the Child in 7 countries: China, Kuwait, Lithuania, Luxembourg, Monaco Sao Tome and Principe and Tuvalu.

IBFAN submitted 4 alternative reports on the situation of infant and young child feeding for China, Kuwait, Lithuania and Luxembourg. The reports were written in collaboration with IBFAN groups in the countries.

We regret to see that in its concluding observations, the CRC Committee referred specifically to breastfeeding in only 2 out of the 7 countries (China and Tuvalu). In the case of Luxembourg, even if breastfeeding was largely mentioned in the discussion between the CRC Committee and the government delegation, Luxembourg did not receive any recommendation concerning breastfeeding.

Some of the recommendations on health care and on the business sector and its impact on child rights are of relevance for infant and young child feeding and are reported below.

The CRC Committee recommended China and Tuvalu to promote exclusive breastfeeding. It has also stressed the need to establish Baby-Friendly Hospitals (China) and to adopt the International Code of Marketing of Breastmilk Substitutes and resolutions (China, Tuvalu). It also urged Tuvalu to provide training to all health workers about breastfeeding.

The Committee particularly addressed the issue of children affected by contaminated formula in China and recommended the government to strengthen its legislative framework on food and health standard and ensure sanctions and remedies in cases of violation.

An Emphasis has been put on the importance of respecting the right of the child to the enjoyment of the highest standard of health (China, Lithuania, Monaco, Sao Tome and Principe). Countries have been reminded to pay attention to the 2013 General Comment 15 on the right of the child to health, which explicitly recognizes the importance of breastfeeding for the achievement of the right of the child to health. It urges States, in the effort of diminishing infant and child mortality, to devote particular attention to neonatal mortality and suggests, inter alia, to “pay particular attention to ensuring full protection and promotion of breastfeeding practices”. Moreover, “Exclusive breastfeeding for infants up to 6 months should be protected and promoted and breastfeeding should continue together with appropriate complementary foods preferably until two years of age as feasible. States’ obligations in this area are defined in the “protect, promote and support framework”, adopted unanimously by the World Health Assembly” in the Global Strategy for Infant and Young Child Feeding.

Some of the countries are recommended to provide quality training for the health care personnel (and to increase the budget for health programs in general. China is urged to improve health infrastructure as well as availability and accessibility to emergency obstetric and neonatal care, especially in rural and poor areas, in order to prevent child and maternal mortality. Sao Tome and Principe is recommended to undertake surveys in order to understand the causes of maternal mortality and to intensify its efforts to improve access to safe drinking water and sanitation. Lithuania is demanded to ensure maternal care for women who choose to deliver at home and finally, it recommended Monaco to ensure that all children, including non-nationals, enjoy the same access and quality to health services.

A great focus was placed on the need to regulate the impact of the business sector on children’s rights. The CRC Committee drew attention to the 2013 General Comment 16, which specifically calls on States “to implement and enforce internationally agreed standards concerning children’s rights, health and business including the [...] International Code of Marketing of Breast-milk Substitutes and relevant subsequent World Health Assembly resolutions”.

 Countries are recommended to ensure the implementation by companies of both international and national environment and health standards and ensure appropriate sanctions in cases of violations. Countries are also recommended to require companies to undertake assessments of the environmental health-related and human rights impact of their business activities The CRC Committee also focused on the need to prevent mother-to-child HIV/AIDS transmission by improving access to treatment, follow-up treatments and by ensuring early diagnosis, as well as early initiation of treatment.

Direct link to our website: http://ibfan.org/reports-on-the-un-committee-on-the-rights-of-the-child/118

Monaco at the Committee on the Rights of the Child

Monaco presented its consolidated 2^nd and 3^rd periodic report on the situation of the implementation of the Convention on the Rights of the Child in the country. The consolidated 4^th to 6^th periodic report is expected by January 2019.

IBFAN did not present any report.

Discussion on infant and young child feeding

The issue of breastfeeding has not been addressed by the CRC Committee during its dialogue with the government delegation. The delegation instead mentioned health care issues and claimed that the Government has established prevention and information programmes to ensure the healthy upbringing of children. Pregnant women receive a medical follow-up and enjoy a special regime at work.

Concluding Observations

In its Concluding Observations, the CRC Committee has made no specific recommendation on breastfeeding to the government delegation.

In par. 37 and 38 regarding health care and services, the Committee asked Monaco to pay attention to its General Comment no. 15 (2013), which insists on “the right of the child to the enjoyment of the highest attainable standard of health, and recommends that the State party undertake all necessary measures, including legislative measures, to ensure that all children, including non-nationals, enjoy the same access and quality of health services”.

China to strengthen legislation on food safety and the International Code

China presented its consolidated 3^rd and 4^th periodic report on the situation of the implementation of the Convention on the Rights of the Child. The next consolidated 5^th to 6^th periodic report is expected by March 2019. The Chinese delegation was composed of 44 members headed by H.E. Mr. Guide Jia, Deputy Director-General at the Department of Treaty and Law and Ministry of Foreign Affairs.

In view of the session, IBFAN presented an alternative report on the situation of infant and young child feeding in China, prepared by IBFAN East-Asia. The report shows that in China breastfeeding declined rapidly during the 1980s due to the promotion of breastmilk substitutes and inappropriate medical practices. With the implementation of BFHI since 1992 and of national regulation on the marketing of breastmilk substitutes (China’s Regulation) since 1995, breastfeeding’s superiority has been recognized and mothers are encouraged and supported to breastfeed their infants. However, breastfeeding promotion in community and work place has not yet received enough attention. One of the challenges regards the popularity of formula feeding and persistence of inadequate feeding practices related to giving water to infants 0-5 months. Another challenge is how to ban the marketing promotion of infant formula which undermines mothers’ confidence on successful breastfeeding. It is difficult for health authorities to supervise, conduct training and reassessments of the baby-friendly health facilities in China given the great number of concerned facilities (over 60 thousands). Finally, it is hard to ensure mothers’ entitlement to paid maternal leave and breastfeeding facilities, especially during the rapid social and live style charging in China.

Discussion on infant and young child feeding

During the dialogue with the government delegation, issues related to breastfeeding and infant and young child feeding have been raised by the CRC Committee, in particular relation to breastfeeding programmes and the baby-friendly hospital initiative (BFHI). The delegation of China did not address these issues in its responses. The Committee pointed out that the exclusive breastfeeding rate is falling, claiming that this is due to incidents of contaminated milk. The Committee insisted on the importance of establishing and reinforcing breastfeeding programmes, as well as promoting the Baby-Friendly Hospital Initiative. The Chinese delegation did not address these issues.

With regards to HIV and AIDS, the CRC Committee asked if there is any programme protecting young people and mothers.

The Chinese delegation answered that the government had implemented a project of HIV prevention and that to date, around 90,000 HIV-positive pregnant women have accessed appropriate services. This has led to a decrease of mother-to-child transmission rate.

Concluding Observations

In its Concluding Observations, the CRC Committee made recommendations on promoting exclusive breastfeeding, BFHI and on adopting the International Code of Marketing of Breastmilk Substitutes. The Committee also mentioned the importance of respecting child rights in relation to the business sector.

Regarding breastfeeding in particular, the CRC Committee was concerned “about the decrease in the exclusive breastfeeding and the incidents of contaminated infant formula in mainland China” (para 64). It strongly recommended that the government of mainland China: “(a) Intensify its efforts to reform laws and strengthen implementation of regulations on food and health safety standards, including for business sector and ensure that any officials or companies violating international and national environment and health standards are appropriately sanctioned and remedies provided when violations occur; (b) Collects systematic data on children affected and take all measures to ensure that all children and their families have access to effective redress, including free medical treatment and adequate compensation; (d) Promote exclusive breastfeeding and the establishment of Baby-Friendly Hospitals and adopt a Code of Marketing of Breast-Milk Substitutes with appropriate controls on the marketing of artificial infant formula” (para 64-65)

In relation to Health and health services, the Committee recommends that “mainland China strengthen its efforts to address, as matter of urgency, the existing disparities in health outcomes and resource allocations in order to ensure that all children enjoy the same access to and quality of health services, paying special attention to children in vulnerable situations, especially children living in poverty and rural areas and children of migrant workers. In particular, it recommends that mainland China take all measures to eliminate child and maternal mortality, including by improving health infrastructure and the availability and accessibility to emergency obstetric and neonatal care and skilled birth attendants at primarily health facilities in rural and poor areas.” (para 62)

The CRC Committee, in its General Comment 16 (2013), specifically calls on States “to implement and enforce internationally agreed standards concerning children’s rights, health and business including the [...] International Code of Marketing of Breast-milk Substitutes and relevant subsequent World Health Assembly resolutions”.

The Committee drew attention of China to its general comment no. 16 in the recommendations related to Child Rights and the business sector. It recommended to mainland China to strengthen the implementation of regulations in order to ensure that the business sector respects international and national human rights and complies with labour, environment and with child rights in particular. The CRC Committee therefore recommended that mainland China: “(c) Establish monitoring requirements for all industries to undertake assessments, consultations, and full public disclosure of the environmental, health-related and human rights impacts of their business activities and their plans to address such impacts; and (d) Investigate and hold accountable government officials, including local officials, suspected of failing to uphold environmental regulations or preventing people from accessing information or medical care, and ensure that children and their families have immediate and full access to effective and medically approved treatment and long-term remedies, including rehabilitation services and compensation” (para 22-23).