Croatia at the CRC: Job Insecurity for Working Mothers and Low Rate of Exclusive Breastfeeding

On the 15th September 2014, the Committee on the Rights of the Child considered the combined Third and Fourth Periodic Report of the Republic of Croatia on the situation of the implementation of the Convention on the Rights of the Child in the country. The delegation of Croatia was led by the Assistant Minister for Social Policy, Strategy and Youth, Ministry of Social Policy and Youth, Mr. Hrvoje Sararić and includes the Senior Expert Advisor, Service for Children and Family, Ministry of Social Policy and Youth, Ms. Sabina Morosini Turčinović.

On this occasion, IBFAN presented an alternative report to inform the CRC Committee on the situation of infant and young child feeding in Croatia.

General overview of breastfeeding in Croatia

Information related to breastfeeding is not part of the national data collection survey. Such data are instead based on reports prepared by individual institutions or researchers.

In Croatia breastfeeding is generally considered the appropriate and desirable way to feed a newborn baby. Indeed, the rate of early initiation of breastfeeding is high (98%-99% in 2008-2009 and 91%-94% in 2011). However, there is a lack of awareness of the benefits of exclusive breastfeeding and the risks associated to formula feeding. This leads to premature cessation of breastfeeding. Indeed, the rate of exclusive breastfeeding at 6 months is very low (14.8%). Finally, Croatia lacks also of human milk banks, as there are none in the country.

In 2006 a National Breastfeeding Committee (NBC) was established by the Ministry of Health. In 2007 the National Program for Breastfeeding Protection and Promotion was completed by the NBC. However, such Program has not been implemented yet.

The Ordinance on Baby Foods for Infants and Young Children and Processed Cereal-Based Foods for Infants and Young Children (OJ 74/08) transposes the International Code of Marketing of Breastmilk Substitutes for the first time into a national legal measure. However, an appropriate monitoring system is missing.

It is worthwhile to mention that numerous courses on breastfeeding are available for health professionals in Croatia, albeit on a voluntary basis. However, the knowledge, attitudes and practices of most health professionals are still deficient.

The Baby-Friendly Hospital Initiative (BFHI) was successfully revived by UNICEF Croatia in 2006. As a consequence, 30 out of 31 maternity facilities are currently designated as ‘Baby-Friendly’. However, there has been a rapid drop in ‘Baby-Friendly’ standards following the BFHI designation.

Croatian job market (in both private and public sectors) discriminates against women. In particular, contracts are often terminated when the woman becomes pregnant or gives birth. By contrast, different kinds of maternity leave are available. Moreover, during the first 12 months after the child’s birth, mothers who are breastfeeding are entitled to two hours absence from work.

Plans of action and accompanying materials need to be prepared and finalised by the NBC and the Ministry of Health in order to be capable of coping with future emergencies.

Discussion on infant and young child feeding

The Committee specifically addressed the issue of breastfeeding. It welcomed the increase of mothers who choose to breastfeed (95%). However, it expressed concern with regard to baby food companies’ marketing and advertising concerning formulas and breastmilk substitutes.

The Delegation of Croatia pointed out the adoption in 2012 of a specific program aiming at promoting breastfeeding as the best practice and encouraging women to breastfeed. It also stressed the existence of a Committee for the Promotion and Protection of Breastfeeding.

Croatia expressed satisfaction with regard to the results brought by such a Program, especially in relation to breastfeeding in the first 3 months of life. Indeed, according to the Delegation, in the 3-year period of implementation of such Program, exclusive breastfeeding have increased dramatically. 95% of women exclusively breastfeed during the first days, whilst this rate decreases with time going by. In particular, 40% of women exclusively breastfeed after six months.

By addressing a specific concern of the Committee, the Delegation clarified that children can stay day and night with mothers who breastfeed while in hospitals.

The Delegation highlighted then the existence of a group for support led by nurses which gathers women and advised them in relation to breastfeeding. Furthermore, 8 counselling teams exist, which are well-recognised also outside the country.

It was acknowledged that until 2007, women in hospitals used to receive the so-called “happy baby” package, which contained advertisement for baby formulas. However, in 2007, a guideline was adopted prohibiting this package as well as other kind of advertisement in hospitals. Nonetheless, in the knowledge of the Delegation, this kind of advertisement is currently made in pharmacies, shopping malls and other places. Croatia declared its willingness to persist with the above-mentioned Program and continue to encourage breastfeeding. It also asserted that aggressive advertising will be prohibited, even outside the hospital system.

Furthermore, the Committee asked more generally for further information with regard to children’s rights and the business sector. Mr. Sararić, the Head of the Delegation, acknowledged that a balance between personal and working life is difficult in Croatia. However, the Croatian Government is endeavouring to better tackle this issue through the National Family Policy which is still under progress. Relevant measures need to be identified yet. In particular, Mr. Sararić mentioned the necessity to raise awareness about the strong need of family-working life balance within the business sector.

Concluding Observations

In its Concluding Observations, the Committee made several indirect recommendations. With regard to the general measures of implementation, it urged Croatia to “expedite the adoption of the new National Strategy for Protection and Promotion of the Rights of the Child for 2014-2020 and ensure that it includes concrete goals and measures” (§9) and “to expeditiously improve its data collection system” (§15).

Regarding health issues, the Committee recommended that Croatia “strengthen its efforts to ensure that all children enjoy equal access to health services” as well as “allocate adequate human resources to maintain the quality of health care”.

Additionally, the Committee issued direct recommendations related to infant and young child feeding (§ 49). It requested Croatia to “take action to improve the practice of exclusive breastfeeding, through awareness-raising measures, the provision of information and training to relevant officials, particularly staff working in maternity units, and parents”. It also recommends that the Government “take all the necessary legislative and structural measures, including monitoring, to control the marketing of breast-milk substitutes”.

Morocco at the CRC: Important Decline of the Exclusive Breastfeeding Rate

On the 3rd September 2014, on the occasion of the review of Morocco’s combined third and fourth periodic reports on the situation of the implementation of the Convention on the Rights of the Child in the country, IBFAN presented an alternative report to inform the Committee on the Rights of the Child about the situation of infant and young child feeding in the Kingdom.

General overview of breastfeeding in Morocco

The report highlighted the decline of exclusive breastfeeding of 23.3% between 1992 and 2011 (51% in 1992 and 27.8% in 2011). In 2005, the Ministry of Health has even declared that the decline of breastfeeding constitutes a concern of public health. An overall lack of knowledge about optimal breastfeeding practices has also been pointed out; indeed, more than 2 infants out of 3 are not breastfed within one hour after delivery, while the rate of predominant breastfeeding under 6 months of age is higher (45.5%) than the rate of exclusive breastfeeding, notwithstanding that predominant breastfeeding has been associated with an increased risk of diarrhoea. The addition of sugar in infants’ meals has also been highlighted as problematic. Finally, regional disparities have addressed: in rural areas, mothers are more likely to breastfeed, while in urban areas, breastfeeding rates are lower and bottle-feeding is more common.

In Morocco, only few provisions of the International Code on the Marketing of Breastmilk Substitutes have been implemented into law, despite the prohibition of the distribution of free baby food samples since 1992. Furthermore, some 43% of the hospitals and maternities of the country are certified as “baby-friendly” (43 out of 112). In addition, the report reflected the concern raised by the initiative “Rising to the Challenge” (convened by WHO, UNICEF and UNFPA in collaboration with other partners) about the lack of commitment of medical and paramedical institutions in raising awareness of the health professionals on the public health approaches and on the Ministry of Health primary health care guidelines in a sustainable manner and with a good standard of quality.

Finally, the report pointed out some others concerns related to infant and young children feeding: the absence of maternity leave for women working in the informal sector, the lack of knowledge on different ways of mother-to-child transmission of HIV as well as the lack of information on the current status of the 2008 pilot programme “Prevention of mother-to-child transmission of HIV”, and the absence of information on any emergency preparedness plan to ensure integrated response to protect and support breastfeeding in case of emergencies.

Discussion on infant and young child feeding

The Committee expressed concerns about the fact that only 43 hospitals out of 112 are certified as "baby-friendly" as well as about the fast decrease of the exclusive breastfeeding rate in the country. The Committee emphasized the emotional attachment between mothers and their child thrived through nursing and asked what are the measures set up by the government in order to support young mothers to breastfeed. In addition, the Committee highlighted the fact that in Morocco, only few provisions of the Code have been implemented into national legislation.

The Moroccan Delegation first stated that there are persisting differences between rural and urban areas in terms of access to reproductive health services. The government has therefore developed an action plan to improve health care provision in remote areas through hospitals and mobile health care services. The aim is to reach the ratio of 95% of skilled attendant present at birth. In terms of reproductive health, the government has implemented a national strategy and a booklet on this issue has been published in collaboration with the WHO. Regarding breastfeeding, the Delegation indicated that the 2011-2019 national strategy on nutrition focuses among other things on strengthening the nutrition of infants. In addition, the Delegation mentioned the existence of the national plan to encourage breastfeeding. It further stated that a bill aimed at encouraging breastfeeding has been prepared in the framework of the 2012-2016 national plan of action for child health. 

The Committee further asked what is done against companies that advertise their products in hospitals and if there is a national law implementing the Code and protecting breastfeeding against aggressive marketing of breastmilk substitutes.

The Delegation answered that breastfeeding is promoted within health facilities throughout the country.

Concluding Observations

In its Concluding Observations, the Committee made several indirect recommendations. With regard to the general measures of implementation, it urged Morocco “to take all necessary measures to address those recommendations that have not been implemented or not sufficiently implemented and, in particular, those related to data collection” (§7). It also asked Morocco to “ensure that the Integrated Policy on Children encompasses child protection and covers all areas under the Convention and all children” (§13).

Additionally, the Committee draws Morocco’s attention to “its general comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights and especially recommends that the State party examine and adapt its legislative framework concerning legal accountability of business enterprises and their subsidiaries operating in or managed from the State party´s territory” (§23(a)).

With regard to health issues, the Committee recommended that Morocco “ensure that sufficient resources are allocated for the health sector and effectively used, and develop and implement comprehensive policies and programmes for improving the health situation of children and facilitating a greater and equal access to quality primary health services by mothers and children in all areas of the country”. It also called the Government to “take more effective measures to address maternal and infant mortality and the nutritional status of young children” (§55 (a)(b)).

However, the Committee did not issued any direct recommendation related to breastfeeding.

Venezuela at the CRC: Strong Legislation but Lack of Data

On the 1^st and 2^nd September 2014, the Committee on the Rights of the Child considered the combined third to fifth periodic reports of Venezuela on the situation of the implementation of the Convention on the Rights of the Child in the country. The Delegation of Venezuela, led by the Minister of Popular Power for Women and Gender Equality (Ministerio del Poder Popular para la Salud, MPPS), Ms. Andreina Tarazón, was constituted of 31 members, including the General Director of the Health Committee of the Ministry of Popular Power for Education, Ms. Asia Yadira Acosta.

IBFAN presented an alternative report to inform the CRC Committee on the situation of infant and young child feeding in Venezuela.

General overview of breastfeeding in Venezuela

The report highlighted a significant deficit in data collection on infant and young child feeding (IYCF). The available data on IYCF are from 2008 and show that more than 70% of children are not exclusively breastfed until 6 months of age while almost 13% are predominantly breastfed until 6 months of age, although it is considered as an inadequate practice. Some 75% of the children are introduced to complementary food before the recommended age of 6 months. In addition, when bottle feeding, the dilution of the powder milk or formula has shown to be inadequate in more than 70% of cases.

Nonetheless, the Government of Venezuela has shown its will to encourage breastfeeding. Firstly, one of the goals set in the “Plan de la Patria Socialista de la Nación 2013-2019” is to increase exclusive breastfeeding by 70%. Secondly, breastfeeding is promoted as a priority by the MPPS and is referred to in the Organic Law on Children and Adolescents Protection (Ley Orgánica para la Protección de Niños y Adolescentes, LOPNA). Thirdly, the International Code of Marketing of Breastmilk Substitutes, as well as the Baby-Friendly Hospital Initiative (BFHI), were formally implemented into national legislation through two ministerial decisions in 2004. However, in 2010, only 17 out of 204 hospitals were certified as ‘baby-friendly’ and violations of the Code can still be detected, such as the use of health claims, promotion of ‘baby competitions’, corporate sponsoring of  medical events.

Regarding training of health professionals, courses on breastfeeding are organized jointly by the Childcare and Paediatricians Venezuelan Society and the UNICEF. Besides, a course on breastfeeding counselling is organized at national level; since its launch, more than 3,000 accredited breastfeeding counsellors have been trained. Finally, the GALACM-UCV breastfeeding support group also gives training courses on breastfeeding. Nevertheless, in 2009, it is of concern that about 35% of surveyed mothers did not receive information on breastfeeding during pregnancy.

In Venezuela, mothers are entitled to a maternity leave that has been increased from 12 to 20 weeks in 2012. Yet, IBFAN report calls for the extension of the maternity leave up to 40 weeks of corrected age for mothers with premature babies.

Regarding IYCF and VIH/AIDS, a programme on the prevention of vertical transmission is carried out in order to ensure the supply of infant formula during the first year of life for children of HIV-positive mothers. Finally, the national legislation states that breastfeeding should be protected in case of emergencies.

Discussion on infant and young child feeding

The Delegation of Venezuela affirmed that a humanist approach is taken in the field of reproductive health and that the government guarantee the provisions of medical services in this field through the programme Barrio Adentro. A specific programme entitled Misión niño Jesús aimed at pregnant women has been implemented.  In addition, the Delegation stated that the government provides support to improve the nutrition of mothers and children, especially by timely supplementation. Finally, it highlighted that 8 human milk banks have been implemented in  the country.

Concluding Observations

In its Concluding Observations, the Committee made several indirect recommendations. With regard to general measures of implementation, it urged Venezuela “to finalize the design of the National Plan of Action for Children and Adolescents (2015-2019)” (§11) as well as “to expeditiously complete and implement its data collection system” (§20).

As far as health issues are concerned, it recommended that Venezuela “collect disaggregated data on children’s health related issues, in particular on child mortality, including under five mortality, maternal mortality, vaccination coverage, nutrition and breastfeeding; allocate adequate human, technical and financial resources to the national public health system; building on data related to the causes, design a strategy to reduce child and maternal mortality, which includes the implementation of the two existing protocols on maternal and neonatal mortality and continue its efforts to reduce malnutrition and increase vaccination coverage” (§53 (a)-(d)). Furthermore, The Committee also addressed the issue of HIV/AIDS mother-to child transmission by requesting the government to “collect disaggregated data on HIV/AIDS related issues, in particular on [...] number of cases of mother-to-child transmissions, [...] and number of children and pregnant women under treatment” and “ensure that all HIV/AIDS positive pregnant women receive adequate treatment” (§61(a),(c)).

The Committee also issued direct recommendations related to infant and young child feeding (§53(e)). It recommended that Venezuela “increase its efforts to promote breastfeeding by developing a comprehensive programme of action to promote exclusive breastfeeding, including training for staff in hospital maternity wards, closely monitor the implementation of the International Code of Marketing of Breast-milk Substitutes and develop awareness raising campaigns”.

Written contribution to the Committee on the Rights of the Child / 2014 Day of General Discussion / Digital Media and Children’s Rights

Breastfeeding protection, an essential component of the child’s right to health

Breastfeeding is recognized as a crucial intervention to provide infants and young children a healthy start in life.[1] It is the single most effective intervention for saving lives:  if applied globally, optimal breastfeeding can annually prevent about 830.000 deaths of children under 5 years. Unfortunately, out of 135 million babies born every year, almost 83 million are not enabled to follow optimal breastfeeding practices.[2]

Enshrined in the article 24 of the Convention on the Rights of the Child on the right of the child to the enjoyment of the ‘highest attainable standard of health’, breastfeeding should be protected against marketing practices that could undermine it. Therefore, the Committee has integrated the 1981 International Code of Marketing of Breastmilk Substitutes (the Code), to date completed and extended by fifteen subsequent relevant WHA resolutions forming an integral part of it, in the CRC General Comment No. 15 (2013), which specifies that besides the 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).

However, the misconduct of baby food companies continues to be a key cause for poor breastfeeding practices, as these companies reap profits from promotion of their products which directly compete with breastfeeding. Recently, the report Breaking the Rules 2014, published by IBFAN’s International Code Documentation Centre, presented more than 800 Code violations by 27 companies in some 81 countries.

Digital media: a new marketing avenue for baby food companies

Since democratization of new technologies and Internet access, a new avenue has opened up for companies to advertise their products on digital media, including social media such as Facebook and YouTube. Mobile and web-based technologies using ‘behavioural targeting’ offer them new opportunities to interact directly with mothers, despite the fact that the article 5 of the Code prohibits baby food companies to seek direct or indirect contact with pregnant women and mothers of infants and young children, regardless of the mean used for making that contact.

Popular bloggers, especially mothers, are roped in to endorse products and thus influence their huge following. Advancing their electronic marketing even further, companies are developing mobile software applications (known as ‘apps’) that millions can download onto their mobile phones, tablets, laptops and PCs. Companies use these apps as direct promotional tools. Several apps are designed to ‘help’ pregnant women and new mothers. Special offers, discounts, contests, product launches and campaign announcements are now available to tech-savvy young mothers and their families.

Creating a corporate culture among parents through websites, social media and apps

Websites facilitate baby food companies’ contact with mothers by offering them gifts (such as a trip to Singapore), free samples and discount prices (such as a ‘Ramadan special package’, offered by Hero[3] on its Egyptian online shop).

Encouraging mothers to spread the word about their products, companies’ websites also foster their participation through a wide range of social activities, such as, for example, photo contests for babies, invitations to baby fairs or mothers blogs.

Thousands of mothers[4] are linked to companies through their Facebook, Twitter or Pinterest pages, where offers of free gifts, promotions and ads violating the Code are regularly posted. Some of these pages even offer ‘live chats’ or ‘carelines’ through which mothers can talk directly to company personnel to get nutritional advice on infant and young child feeding.

Besides, many other companies have developed a phone app for monitoring the feeding routines of infants and for providing advice, such as the one developed by HiPP[5] in Norway. In Slovenia, Novalac[6] even offers parents a local language smart phone ‘baby app’ which allows the company to offer promotions and special deals to parents.

‘Mothers clubs’, or how companies disguise marketing under ‘parents advice’

A new trend for companies is to promote virtual platforms called ‘Nutriclub’, ‘Moms club’ or even ‘Baby club’, connecting with pregnant women and offering mothers one-on-one support, parenting advice, information about pregnancy and child development, together with information on their products. When joining a ‘club’, mothers are offered gifts, promotional offers and invitations to try products. For example, parents who sign up to Wattie’s[7] club are offered the chance to win about USD 520 of free gifts.

Video clips and viral marketing, advanced marketing tools for selling baby foods

Baby food companies are regularly publishing attractive video clips on their websites and social media, but also on TV and as ads on other websites. These video clips are systematically ‘shared’ on YouTube, allowing them to be spread over social media by users. For example, a cute cartoon video clip, recently published by Nestlé, has been viewed over a million times within a month.

These video clips often claim that industrial baby foods have positive effects on babies’ health and contribute to their optimal cognitive development. For example, in a Dumex[8] video clip run on the company’s website and on TV, mothers share their opinion on the good effect of Dumex baby formula to assist the baby’s immune system. Similarly, in Hong Kong, Nestlé’s video clip for infant formula claims that the product promotes ‘gut health, digestion, absorption’. There is overt comparison with breastmilk via the DHA and ARA components which, contrary to systematic reviews of the evidence, are claimed to ‘help baby’s brain and visual development.’

Campaigning on the first 1000 days: the hijack of breastfeeding promotion by companies

The 1000 days between a woman’s pregnancy and her child’s 2^nd birthday is a critical period for long term development. UNICEF and WHO have launched a global campaign for health and development through adequate nutrition during this critical ‘1000 days window of opportunity’. Baby food companies sensed a marketing opportunity and launched their own ‘first 1000 days’, campaigns. Both Nestlé and Danone, baby food leading companies, have co-opted the slogan of the first 1000 days.

Nestlé launched its own first 1000 days advertising campaign called ‘Start Healthy, Stay Healthy’ in order to associate itself with the UN message. Under its campaign, the company reaches out to the public through its website and social media and calls on visitors to join the company in promoting the World Breastfeeding Week 2014 while claiming to support breastfeeding. Apart from targeting mothers, Nestlé sponsors courses organised by professional organisations and even organised ‘scientific conferences’ for doctors in India, despite the explicit prohibition of such events by the Indian Infant Milk Substitutes Act. In Malaysia, the company has pushed the boundaries even further and launched a ‘1500 days’ campaign.

For its part, Danone registered the domain name http://www.first1000days.ie/  under its Nutricia subsidiary. In China, Dumex’s 1000 Days programme, with emphasis on child’s immunity, offers a service tailored for mothers and aimed at providing advice from pregnancy through various stages of early childhood. A book on this 1,000 day programme is distributed free when mothers register on the Dumex website. In Ireland, Danone’s front company Cow & Gate followed the Dumex example by launching the First 1000 Days campaign, using a celebrity couple as ambassadors. Incentives like free recipe books are offered to tempt potential customers.

How to protect child’s right to health against corporate violations of the Code through the use of digital media

In order to protect breastfeeding and thus, the right of the child to the enjoyment of the highest attainable standard of health, States parties should be urged to:

1. Fully implement the International Code of Marketing of Breastmilk Substitutes and its relevant subsequent WHA resolutions, especially WHA63.23, into their national legislation

It is crucial for Member States to fully implement the Code as it regulates marketing practices of baby food companies to protect the right to health of infants and young children, including against malevolent marketing practices that take place online. More specifically, article 5 of the Code prohibits manufacturers and distributors from providing mothers with free samples of their products, whether directly or indirectly. The provision also forbids promotion tools to induce sales direcly to the consumer at the retail level, such as special displays, discount coupons, as we can find on companies websites, their online shops and social media. Finally, the Code states that the marketing personnel should not seek direct or indirect contact of any kind with mothers of infants or young children. 

Resolution WHA63.23 calls upon the development of legislative, regulatory and effective measures to control the marketing of breastmilk subtitutes in order to give effect to the Code.

2. Ensure effective monitoring of the Code and implement deterrent sanctions against violations

According to the Code, monitoring the application of the Code lies with governments acting individually and collectively through WHO (article 11). Resolution WHA61.20 urges States to scale up efforts to monitor and enforce national measures and to avoid conflicts of interest. 

To meet their obligations, States should therefore be urged to implement deterrent sanctions for Code violations into their legislation. 

3. Launch modern and attractive digital campaigns on breastfeeding promotion and support 

Governments should promote and support optimal breastfeeding practices through modern and attractive media campaigns. Using the same digital media devices than baby food companies, States parties would be able to counter the damages induced by the aggressive marketing practices of the private sector. By maintaining catchy and helpful websites, promoting social media pages and spreading innovative videos through the Web, governments will be able to disseminate the adequate information to a wider public and create a popular trend towards optimal breastfeeding practices. 

4. Implement their Extraterritorial Obligations into legislation

According to the CRC General Comment No. 15 (2013), baby food companies have a direct obligation to comply with the Code in all contexts and thus, to respect to right of the child to the enjoyment of the highest attainable standard of health.

Pursuant to international human rights law, States have the duty to ensure that companies based in their territory do not infringe the human rights of people their countries, but also in other countries where the companies operate.[9] Therefore, the States should be urged to implement legislation aimed at holding home-based companies, including baby food companies, accountable for their human rights violations abroad.

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[1] UNICEF, Pneumonia and diarrhoea : How to tackle the deadliest diseases for world’s poorest children. June 2012. http://www.unicef.org/media/files/UNICEF_P_D_complete_0604.pdf.

[2] Bhutta et al., What works? Interventions for maternal and child undernutrition and survival, The Lancet, 2008, 371 (9610) : 417-440.  http://www.who.int/nutrition/topics/Lancetseries_Undernutrition3.pdf.

Save the Children, Superfood for babies: How overcoming barriers to breastfeeding will save children’s lives, 2013. http://www.savethechildren.org/atf/cf/%7B9def2ebe-10ae-432c-9bd0-df91d2eba74a%7D/SUPERFOOD%20FOR%20BABIES%20ASIA%20LOW%20RES%282%29.PDF.

[3] Hero is a Swiss company.

[4] For example, by May 2013, the Danone Facebook page had received some 53,000 ‘likes’, thus multiplying Danone’s Code violating record.

[5] HiPP is a German company.

[6] Novalac is a French company.

[7] Wattie’s is a brand owned by Heinz, a US company.

[8] Dumex is the Asian subsidiary of Danone, a French company.

[9] Principle 25  (c) (d) (e), Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. Available at: http://www.fian.org/fileadmin/media/publications/2012.02.29_-_Maastricht_Principles_on_Extraterritorial_Obligations.pdf

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.

Portugal and the Issue of Breastfeeding in the Perspective of Child's Rights

Portugal 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 (CRC) in the country.

IBFAN presented to the Committee an alternative report and an annex showing examples of violations of the International Code on the Marketing of Breastmilk Substitutes that were noted in the country.

General overview of breastfeeding in Portugal

The alternative report presented by Portugal states that in 2012, 78.9 % of mothers of the country have initiated their child to breastfeeding within the first hour of delivery. However, statistics show that exclusive breastfeeding starts to decrease after 5 to 6 weeks to reach a low rate of 22.4% at 5/6 months. Furthermore, use of follow on formulas and toddler milks is recommended by health professional after 6 months in Portugal, regardless of the WHO’s statement of the 17^th July 2013 that states: “ […] as well as being unnecessary, follow-up formula is unsuitable when used as a breast-milk replacement from six months of age onwards.” In addition, although Portugal has implemented the EU Directive 2006/141/EC on infant formulae and follow-on formulae, which is weaker than the International Code, through the adoption of a law (Decreto-Lei 217/2008), this law has not been monitored yet. Besides, there are no enforcement mechanisms in place either. Thus, industries are not sanctioned when they violate the International Code. The advertisement of breastmilk substitutes is widespread: for example, free samples of infant formulas are distributed through the health care system. Although a government body has been established with a mandate to report such violations, no monitoring of the law is done at a national level.

Breastfeeding courses are then mainly provided by NGO’s. Concerning the Baby-Friendly Hospital Initiative (BFHI), only 10 hospitals out of the 40 maternity wards have been certified as “baby-friendly”.

Discussion on infant and young child feeding

During the interactive dialogue between the CRC Committee and the delegation of Portugal, the issue of breastfeeding was tackled in the context of health care. The members of the Committee addressed their concerns about the health budget allocation and the lack of coordination within the different bodies of the government.

The Portuguese delegation confirmed that Portugal had received a recommendation to improve the coordination between the different bodies of the government by the UPR, as it had been reviewed during its 6^th session in 2009. . The delegation also highlighted the difficulties to increase the health budget allocation due to the economical crisis that lasts since 2009. The health budget allocation decreased in 2013 from 11 Mio to 7 Mio Euro. However, the government managed to increase the budget allocation to 9 Mio Euro for 2014. Besides, the government works closely with NGOs to guarantee to all children the right to health care.

The Committee then raised questions about breastfeeding, especially the implementation of the International Code and the training of health professionals on breastfeeding issues. 

The Portuguese delegation first acknowledged the WHO recommendation for exclusive breastfeeding until 6 months and then continued breastfeeding until 2 years or more. It stated that the government officially recommends exclusive breastfeeding until 6 months. On the question of health professionals, the delegation asserted that they are aware of the crucial role of breastfeeding in regard of infant and young child nutrition and that they are called to respect WHO resolutions, particularly the International Code. The delegation then mentioned the monitoring activity of the association Mama Mater that is collecting data about breastfeeding. These data should be further analyzed in order to understand the rates of exclusive breastfeeding after 6 weeks. About BFHI, the delegation stated that 11 maternity wards are currently certified as "baby-friendly", but the government intends to increase this number in the coming years. It then explained that “breastfeeding corners” (Cantinhos de Amamentação) are disseminated among the hospitals of the country, allowing mothers to receive advice regarding breastfeeding even after they will have left hospital. The delegation noted the engagement of several NGOs in peer counseling on breastfeeding. The government finally expresses its will to inform the population about the benefits of breastfeeding through a national youth health programme.

The members of the Committee also raised issues about corporal punishment, juvenile justice, integration of migrants, road traffic injuries and drowning, participation of children in bull fighting, child trafficking, education, children with disabilities, adoption and family support.

CRC Committee's Concluding Observations

In its Concluding Observations, the CRC Committee made recommendations on the importance of collecting data on children (para 18), on the right of the child to the highest attainable standard of health, mentioning the negative impact of budget restrictions on health care (para 48), and on the necessity to promote and support breastfeeding practices and to regulate the marketing of infant formulas (para 56).

First, the CRC Committee emphasized the importance of establishing a more comprehensive and integrated data collection system on children.

Then, the Committee drew Portugal’s attention to its 2013 General Comment N°15 on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), which explicitly recognises the importance of breastfeeding for the achievement of the right of the child to health. The General Comment N° 15 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 its 2002 Global Strategy for Infant and Young Child Feeding". Regarding Health and health services, Portugal is specifically demanded to “minimize the impact of financial restrictions in the area of health care, and further recommends that 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.”

Lastly, despite all measures taken to encourage breastfeeding, the Committee expressed its concern about the decline of exclusive breastfeeding rates between four and six months of age, and the practice of providing complementary foods to infants from the age of four months in Portugal. It therefore recommended the State Party 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”. Portugal is also demanded to “strengthen the monitoring of existing marketing regulations relating to breast milk substitutes”.