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.

Assemblée Générale de Nestlé - Intervention d'IBFAN-GIFA

10 avril 2014 - Lausanne

Chers Membres du Conseil d’administration, chers actionnaires,

Mon nom est Camille Selleger, je suis juriste et je m’exprime au nom de la Geneva Infant Feeding Association, membre suisse du réseau IBFAN. Vous vous demandez sans doute ce que j’ai d’important à vous dire. En fait, j’ai une simple question à vous poser : Pensez-vous que tous les enfants ont les mêmes droits ?

Pensez-vous que vos enfants, vos petits-enfants, ont moins de droits que les enfants des pays défavorisés?

Je crois que chacun d’entre nous connaît la réponse à ces questions. Les droits des enfants sont universels. Chaque enfant de cette planète a le droit à la vie, à jouir d’une bonne santé et d’une alimentation adéquate. A ce propos, l’année dernière, le Code international de commercialisation des substituts de lait maternel, mis en place pour protéger l’alimentation des nourrissons et des jeunes enfants des pressions commerciales, a été officiellement intégré à la Convention sur les droits de l’enfant. Le Code international est donc lui aussi plus que jamais universel. Le Comité sur les droits de l’enfant précise même que (je cite) « […] dans tous les contextes, les entreprises privées devraient s’y conformer... » C’est clair et limpide comme de l’eau de roche.

Cependant, le Conseil d’administration veut vous faire croire qu’il y a 2 poids 2 mesures, et que ce qui vaut pour les enfants défavorisés ne vaut pas pour les enfants d’ici. Nestlé dit qu’il faut respecter le Code international dans les pays pauvres, mais qu’ici cela ne vaut pas la peine. Selon Nestlé, nos enfants n’ont pas le droit à cette protection pourtant universelle, inconditionnelle et prévue noir sur blanc dans le droit international. Malgré ces évidences, le Conseil d’administration a la gentillesse nous faire rêver avec de jolis rapports pleins de photos attendrissantes, où l’on peut lire que Nestlé s’engage pour les droits humains. Comment peut-on affirmer qu’on respecte les droits humains alors qu’on ne respecte pas les droits des enfants ?

Vous savez, quand je pense à tout ça, j’ai un mot qui me vient en tête (et je pense que vous aussi): cynisme. Je sais que les affaires sont les affaires, mais pas à n’importe quel prix. Pas en se moquant du droit des enfants. Je suis une vraie Suisse, j’ai grandi ici et je sais combien Nestlé fait partie de notre patrimoine. Pour cette raison, la firme doit montrer l’exemple, pas seulement dans ses déclarations et dans ses jolis rapports, mais aussi et surtout dans ses actes. Faire des bénéfices, oui, mais avec conscience et respect. Et sans cynisme.

Ma question est la suivante : Le Conseil d’administration s’engage-t-il à ce que Nestlé respecte strictement le Code international et les résolutions postérieures qui s’y rapportent dans tous les pays du monde et sans distinction ?

Merci de votre attention.

Recommendations related to Breastfeeding by the 65th Committee on the Rights of the Child

The 65^th Session of the Committee on the Rights of the Child (CRC Committee) took place in Geneva from 13 to 31 January 2014. The Committee reviewed the progress of the implementation of the Convention on the Rights of the Child in 6 countries: Congo Brazzaville, Germany, Holy See, Portugal, Russian Federation and Yemen. IBFAN submitted 5 alternative reports on the situation of infant and young child feeding for Congo, Germany, Portugal, Russian Federation and Yemen. The reports were written in collaboration with IBFAN groups in the countries. In its Concluding Observations, the CRC Committee referred specifically to breastfeeding in only 4 out of the 6 countries (Congo, Germany, Portugal and Yemen). The Holy See and the Russian Federation did not receive any direct recommendation on breastfeeding.

The right of the child to health

A particular emphasis has been put on the importance of respecting the right of the child to the enjoyment of the highest attainable standard of health. The CRC Committee referred to its 2013 General Comment N° 15 on the right to health (art. 24) in its recommendations to all reviewed countries, including the Holy See. The General Comment N° 15 explicitly recognizes the importance of breastfeeding for the achievement this right. This General Comment urges States, to devote particular attention to neonatal mortality in their effort to diminish infant and child 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 its 2002 Global Strategy for Infant and Young Child Feeding. The Global Strategy calls, among other, for the improvement of the quality and availability of sex-disaggregated data, an issue that has been included in recommendations to Congo, Germany, Portugal and Yemen.

Protect

A great focus was placed on the need to regulate the impact of the business sector on children’s rights. In its recommendations to Congo, Germany and the Russian Federation, the CRC Committee expressly drew attention to its 2013 General Comment N° 16 on State obligations regarding the impact of the business sector on children’s rights, which specifically calls on States Parties 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” (hereafter referred as “the International Code”). Therefore, these three reviewed countries are recommended to ensure the compliance by companies of both international and national health and environmental standards and ensure appropriate sanctions in cases of violations. Congo and the Russian Federation are also recommended to require companies to undertake assessments of the environmental health-related and human rights impact of their business activities.

In addition, the CRC Committee expressly urged Germany to take every necessary measure to ensure the access to breastfeeding through the control of infant formula. More specifically, the CRC Committee urged Yemen, Congo and Germany to respectively implement and strictly enforce the International Code, while Portugal is asked to strengthen the monitoring of its marketing regulations related to breastmilk substitutes.

Promote

In the case of Congo, the CRC Committee stressed that preventable diseases, including diarrhoea, continue to impact negatively on child mortality rate. Thus, it urged the government to promote infant and young child feeding practices, in particular breast milk, and to adopt a holistic early childhood development strategy covering healthcare, nutrition and breastfeeding.

Furthermore, the CRC Committee raised the issue of new morbidity related to attachment disorders in Germany, which could be related to declines in exclusive breastfeeding practices. It underlined the decline of exclusive breastfeeding rates of children between four and six months and the aggressive marketing of breastmilk substitutes in Portugal. In the case of Yemen, it showed concern about the high rates of chronic malnutrition (stunting), acute malnutrition (wasting) and communicable diseases, especially diarrhoea, among children, linked to the lack of awareness about exclusive breastfeeding practices. Accordingly, the CRC Committee recommended Germany, Portugal and Yemen to promote exclusive breastfeeding.

In regard of General Comment N°15, Germany is specifically requested to better promote healthy eating habits and to pay special attention to children in vulnerable situations.

Support

Congo is urged to ensure provision of primary health care services for all pregnant women and children within accessible health care service with trained health care providers. It is specifically recommended to increase the quality and coverage of training to staff at socio-health units.

The CRC Committee also stressed the need for Yemen to establish baby-friendly hospitals.

The CRC Committee also focused on the need to prevent mother-to-child HIV/AIDS transmission by ensuring the implementation of effective HIV/AIDS preventive measures (Congo), by expanding the coverage of the National HIV/AIDS Prevention and Control Programme (Yemen) and by providing sufficient amount of breastmilk substitutes and anti-retroviral drugs in all regions (Russia).
                                                                                    

Table 1. CRC Committee - Session 65 / 2014 -Summary of Concluding Observations on IYCF

Country		IBFAN report	Summary of specific recommendations on IYCF
1	Congo (2nd to 4th periodic report)	yes	Indirect – Data collection (para 19): improve data collection system. The data should cover all areas of the Convention and should be disaggregated by age, sex, geographic location, ethnic and national origin and socioeconomic background in order to facilitate analysis on the situation of all children, particularly those in situations of vulnerability. Children’s rights and the business sector (para 27): establish a clear regulatory framework for the industries operating in the State party to ensure that their activities do not negatively affect human rights, especially those relating to children’s and women’s rights; ensure effective implementation by companies, especially industrial companies, of international and national environmental [...]  health standards, effective monitoring of implementation of these standards and appropriately sanctioning and providing remedies when violations occur; require companies 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 impact; be guided by the United Nations “Protect, Respect and Remedy” Framework. Health care (para 59 a): ensure provision of primary health care services for all pregnant women and children with focus on development of accessible health care services with trained health care providers, intervention to reduce preventable and other diseases, particularly diarrhoeas, acute respiratory infections and undernutrition; strengthen and expand access to preventive health care, and therapeutic services for all pregnant women and children, particularly infants and young children under five years old; continue to disseminate health information and promotion of health education; increase quality and coverage of training to staff at socio-health units and ensure units are adequately staffed and have essential facilities, including obstetric supplies and emergency medicines for children and pregnant women; sustain the measures in place to prevent mother-to-child transmission of HIV. Direct (para 59 b; 66 b): promote IYCF practices, particularly breast milk and infant food based on local foods; adopt a holistic early childhood development (ECD) strategy and invest in the training of ECD teachers and provision of integrated formal and community-based programmes involving parents and covering healthcare, nutrition and breastfeeding, early stimulation and early learning for children for birth to the first year of school.
2	Germany (3rd and 4th periodic report)	yes	Indirect – Data collection (para 16): establish a comprehensive and integrated data collection system on children covering all Länder and the entire period of childhood up to the age of 18, and to introduce indicators on children’s rights on which progress in the realization of those rights could be analysed and assessed. The data should be disaggregated by age, sex, disability, geographical location, ethnicity, migration status and socio-economic background. Children’s rights and the business sector (para 23): establish a clear regulatory framework for the industries operating in the State party to ensure that their activities do not negatively affect human rights [...], especially those relating to children’s rights; examine and adapt its legislative framework (civil, criminal and administrative) to ensure the legal accountability of business enterprises and their subsidiaries operating in or managed from the State party’s territory, regarding violations of child and human rights; comply with international and domestic standards on business and human rights with a view to protecting local communities, particularly children, from any adverse effects resulting from business operations, in line with the UN “Protect, Respect and Remedy” Framework and the Guiding Principles on Business and Human Rights and by the Committee’s own general comment N° 16. Health care (para 57): advocate and raise awareness through programmes targeting schools and families, emphasizing [...] healthy eating habits. Direct (para 57; 63): [in regard of General Comment 16] take every necessary legislative and structural measure to ensure that every child within the State party has access to breastfeeding through the control of infant formula which will promote better bonding between infants and mother; strengthen efforts to promote exclusive and continued breastfeeding by providing access to materials, and educating and raising awareness of the public on the importance of breastfeeding and the risks of formula feeding; strictly enforce the International Code of Marketing of Breast-milk Substitutes.
3	Holy See (2nd periodic report)	no	none
4	Portugal (3rd and 4th  periodic report)	yes	Indirect – Data collection (para 18): establish a more comprehensive and integrated data collection system on children covering the entire period of childhood up to age 18, and to introduce indicators on children’s rights on which progress in the realization of those rights could be analysed and assessed. The data should be disaggregated by age, sex, geographic location, ethnicity, migration status and socio-economic background to facilitate the determination of the overall situation of children. Health care (para 48): [in regard to General Comment 15] minimize the impact of financial restrictions in the area of health care; austerity measures in the area of health should be evaluated on the basis of a child’s right’s impact assessment to ensure that such measures do not have a negative impact on child health and well-being. Direct (para 56): take action to improve the practice of exclusive breastfeeding for the first six months, through awareness-raising measures including campaigns, information and training for relevant officials, particularly staff working in maternity units, and parents; strengthen the monitoring of existing marketing regulations relating to breast milk substitutes.
5	Russian Federation (4th and 5th  periodic report)	no	Indirect - Children’s rights and the business sector (para 21): pray attention to General Comment 16 on State obligations regarding the impact of the business sector on children’s rights and recommends that the State party establish and implement regulations to ensure that the business sector complies with international and national human rights, particularly with regard to children’s rights; ensure effective implementation by companies, especially industrial companies, of international and national health standards, effective monitoring of the implementation of these standards and appropriately sanctioning and providing remedies when violations occur, as well as ensure that appropriate international certification is sought; require companies 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 impact; be guided by the United Nations “Protect, Respect and Remedy” Framework. Health care (para 52; 54): pray attention to General Comment 15 on the right of the child to the enjoyment of the highest attainable standard of health, and recommends that the State party take measures to regularly assess the health conditions of children deprived of parental care and children in difficult situations in order to prevent irreparable damage to their health;; take all necessary measures to prevent mother to child transmission of HIV/AIDS throughout the country by providing sufficient amount of breast milk substitutes and anti-retroviral drugs in all regions, irrespective of their legal status in the country.
6	Yemen (4th periodic report)	yes	Indirect – Data collection (para 18): improve its data collection system. The data should cover all areas of the Convention and should be disaggregated by age, sex, geographic location, ethnic and national origin and socioeconomic background in order to facilitate analysis on the situation of all children, particularly those in situations of vulnerability. Health care (para 16; 56; 64): establish a budgeting process, which includes child rights perspective and specifies clear allocations to children in the relevant sectors and agencies, including specific indicators and a tracking system; increase substantially the allocations in the areas of health and education; ensure that appropriate resources be allocated to the health sector, with particular attention to specific maternal and child health care and develop and implement comprehensive policies and programmes to improve the health situation of children, in particular to respond to high rates of malnutrition and diarrhoea infections; expedite the process to join as a full member the Scale Up Nutrition Initiative (SUN) and to take effective measures to address the widespread and serious undernourishment affecting children; strengthen its efforts to develop outreach services, including a network of mobile health-care facilities in conflict-affected areas, particularly targeting children and pregnant women, as an interim measure, and ensure that health-care facilities are rehabilitated and not re-occupied for military purposes by either the armed forces or non-State armed groups; ensure universal coverage for HIV testing and free antiretroviral drug provision; pay particular attention to pregnant adolescents in rural areas, pregnant mothers with HIV and children born to mothers with HIV. Direct (para 56): enhance efforts to promote exclusive breastfeeding practices, by ensuring the implementation and compliance with the International Code of Marketing of Breast-milk Substitutes, and establish a monitoring and reporting system to identify violations of the Code. This includes the establishment of baby-friendly hospitals with the promotion of breastfeeding from birth.

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