NESTLÉ'S INQUIRY INTO THE ALLEGATIONS MADE BY IBFAN (INTERNATIONAL BABY FOOD ACTION NETWORK) IN ITS REPORT: "BREAKING THE RULES, STRETCHING THE RULES 2001"
August 2001
IBFAN's Code vs. the International Code as the Criterion
We believe that IBFAN reaches inaccurate and misleading conclusions about Nestlé's adherence to the International Code of Marketing of Breast-milk substitutes, because they use as a criterion an IBFAN interpretation of the International Code rather that the International Code as applied by the member states of WHO. Had the International Code been interpreted and applied as intended, by WHO member states, we believe that Nestlé's record of Code compliance is evident.
The Code which IBFAN publishes on page 8 of its report and labels "The International Code and Subsequent World Health Assembly Resolutions" (and presumably used as its criteria) is not the International (WHO) Code as published by WHO. It is a rewriting of the Code which contains many interpretations which are in sharp contradiction to the way the member states of the WHO interpret and apply the Code in their respective countries. Some of the major differences have to do with what products the Code applies to (very few countries applying the Code include cereals), the age at which cereals can be marketed, what information is permitted to be given to health professionals, as well as acceptance of the major parts of the Code itself by governments.
The Code was passed as a recommendation to be implemented by governments "according to their own legislative and social framework". The governments of most developed countries have therefore adapted the aim and purpose of the Code to the specific conditions in their respective countries. IBFAN disregards the national measures that the governments have adopted, and instead refers solely to its own interpretation of the Code. This is the fundamental flaw of the IBFAN monitoring.
Had IBFAN used criteria based on the International Code, its investigation would have shown that Nestlé carries out:
- no promotion of infant formula to the public, except in the U.S. and Canada where it is permitted by government regulations, and in the E.U., where it is permitted in specialised parents' magazines,
- no promotion of follow-up formula to the public, except in those same (developed) countries, where the governments allow that,
- no promotion of other breast-milk substitutes to the public. Beside infant formula, Nestlé does not market any other food products as breast-milk substitutes. As for our complementary foods, they are marketed at ages approved by the governments,
- appropriate marketing of breast milk substitutes to health workers and health care facilities, as permitted by the Code,
- provision of very limited amounts of free and low-cost supplies, according to governments' implementation of the WHO Code, at levels which do not allow sample schemes to mothers,
- appropriate labelling.
Nestlé voluntarily applies the International Code in its entirety in all (over 150) developing countries. Our instructions to implement the Code have been discussed with relevant authorities in all countries where we market infant formula, in contrast to the IBFAN interpretation of the Code.
The summary below contains our investigation of the IBFAN allegations (as much as possible given the incompleteness of some information) using the criteria laid out by the International Code. Detailed tables evaluating each allegation are also available.
The IBFAN report also contains out-of context quotations from our former Chairman, and slanted representations of events in the UK and other countries.
We believe that it is evident that the report is a campaign document from an advocacy organisation, not a monitoring report from an objective source. It should also be noted that Nestlé has not received any complaint regarding these allegations from any national government regarding the marketing of its breast-milk substitutes.
General Overview of Allegations
IBFAN makes allegations about 16 companies' compliance with the International (WHO) Code of Marketing of Breast?milk Substitutes in 14 countries.
We identified a total of 107 allegations related to Nestlé. All the Nestlé companies involved carried out detailed investigations into the respective allegations levelled against them, and Nestlé headquarters has analysed their responses.
Specifically, of the 107 allegations, 34 are not about infant formula (baby milks) but about infant cereals and baby foods marketed in accordance with national application of the International Code and the Nestlé Instructions to implement the Code. As the WHO Code Publication explains, Infant Cereals not marketed as breast-milk substitutes are considered as complementary foods, not covered by the Code's restrictions;
WHO Code, Annex 3, paragraph 2, states that "Breast milk may be replaced (substituted for) during this period by bona fide breast-milk substitutes, including infant formula. Any other food, such 'as cow's milk, fruit juices, cereals, vegetables, or any other fluid, solid or semi-solid food intended for infants and given after this initial period, can no longer be considered as a replacement for breast milk (or as its bona fide substitute). Such foods only complement breast milk or breast-milk substitutes, and are thus referred to in the draft code as complementary foods."
The Code permits normal marketing of complementary foods not marketed as breast-milk substitutes and Nestlé's infant cereals are not marketed, in any country, as breast milk substitutes and fully comply with national regulations.
Regarding this topic, it is useful to remark that 2 days after IBFAN released its report, WHA changed it's recommendation about the age of introduction of complementary foods, from "4 - 6 months", to "6 months", taking into account individual needs. Nestlé will therefore change its labels accordingly, after consultation with WHO, in all countries where we unilaterally apply the Code.
Of the remaining allegations:
- 22 refer to marketing practices in developed parts of the world (Canada, Hong Kong, Italy, Taiwan and USA) which have implemented the Code differently than IBFAN:
- The Code was purposely passed as a universal recommendation (rather than regulation) to all member states of the WHO, to be implemented "as appropriate to their social and legislative framework, including the adoption of national legislation, regulations or other suitable measures".
- Where governments in developed countries, such as the United States or E.U. countries, have clearly decided on how to implement the WHO Code and to what extent (or have a national legislation covering the field of infant feeding and the marketing of infant foods) we of course abide by the ruling of governments. Not doing so, we believe, would be to place ourselves above the decision of national authorities or governments, failing to recognize the differences in public health problems and priorities between countries.
- The activities cited by IBFAN in these countries are all in accordance with those countries' implementation of the International Code and national laws and regulations. Nestlé strictly follows and complies with the national legislation / regulations in these 5 developed countries.
- 9 refer to samples or free supplies to hospitals:
- By 1994, Nestlé had phased out free supplies of infant formula to hospitals in all countries where we unilaterally apply the International Code and now only give quantities of formula, if requested by authorities or institutions, under very special circumstances. This might be for orphanages, in the event of a military or natural disaster or for social welfare reasons such as multiple births or when a mother has died.
- For purposes of professional evaluation by individual health professionals, two cans of new infant formula products may be given to health professionals only once during their lifetime, and this is subject to very strict control. In this way, the intent of the Code, to prevent the practice of giving samples that can be passed on to mothers, is upheld.
- If IBFAN has knowledge of any places where quantities of samples are being given in contradiction to this, we would welcome additional details in order to investigate this further. However, our investigation shows this not to be the case.
- 8 refer to gifts to Health Workers:
- The small gifts that occasionally markets give to health professionals (such as pens, notepads, etc.) do not carry an Infant Formula brand logo, only the company logotype which is in line with WHO Code. Infant foods not marketed as breast-milk substitutes, thus not restricted by the Code, may benefit from normal standard marketing practices. In the case of diaries, they are intended only for health professionals and in some cases contain pictures of infant formula products with the scientific information on each one. All of this we believe is in agreement with the Code, and the specific Nestlé Instructions which were reviewed with WHO, other UN agencies and the International Nestlé Boycott Committee, leading to the 1984 Statement of Understanding between INBC and Nestlé.
- 7 refer to printed educational material of Infant Formula:
- All printed educational material is intended only for health professionals, containing scientific information about the products, or scientific educational articles, and follows the International WHO Code recommendations.
- 5 refer to publicity on infant formula:
- In developing countries, information relating to infant formula (or follow-on formula) is not communicated directly to mothers or the general public, either through public media or by personal contact between company representatives and the public.
Our instructions include bans on:
- Participation in/sponsorship of baby shows (even when invited to participate by health professionals or charitable institutions).
- Distribution of gift packs for mothers (for example, containing infant formula or feeding bottles or other baby accessories).
- Distribution to mothers of materials of a non-educational nature (whether product-related or not): birth certificates, calendars, baby albums, etc.
Our internal enquiry shows that no publicity on infant formula was made to mothers or to the general public in the countries mentioned by IBFAN.
- 5 refer to labelling of Infant Formulas:
- The WHO Code stipulates what important information should go on each infant formula product. Nestlé puts all this information on all infant formula products in line with the WHO recommendations and national regulations -stressing the importance of breastfeeding ("Breastfeed is best for babies"), on consulting the doctor or clinic for advice before taking the decision to use breast-milk substitutes and the consequences of improper use. The labels include clear instructions on how to prepare the formula, also presented pictorially to ensure the important information is properly understood. The Code also specifies that the label should be printed in "an appropriate language". More than one language will thus be needed in some countries.
- We find no instance where our infant or follow-on formula labels do not contain all the required information.
- Infant formula is the only product, recognised by the WHO/FAO Codex Alimentarius Commission, suitable as a breast-milk substitute. We continue to carry out intensive research to improve our infant formula products and provide the best possible breast-milk substitute. This implies that our endeavour is to come as close as possible to breast-milk. Explaining this also on labels does not amount to idealising breast-milk substitutes the less so as we never omit to include the important notice on the superiority of breast-milk.
- 4 refer to rewards for sales, discounts and special sales on infant formula:
- Nestlé does not conduct sales, special sales, or discounts for Infant Formulas in any developing country. Nestlé's Instructions are very clear regarding this (Article 5.3), and our examination shows that the Instructions are followed by each market.
- The Code permits having a normal wholesale pricing policy, and Nestlé applies this policy. The pricing structure depends on quantities of the product bought in a normal wholesale pricing structure, which is permitted by the International Code. No additional discounts or prices are given to the trade for infant formula products.
- If IBFAN is aware of one-time discounts, special sales of Nestlé infant formula to retailers, we would appreciate being informed about this.
- 4 refer to Growing up Milks:
- These are products for children after one year of age, and are not marketed as breast-milk substitutes in any country.
- 4 refer to contact with mothers:
- In developing countries, Nestlé marketing staff dealing with infant formula are not allowed to have any kind of contact with pregnant women, mothers of infants or young children and/or their families. Strong disciplinary measures are taken if this occurs. The IBFAN report mentions, without any specific evidence, (dates, name of the hospital, name of the mothers if possible, etc.), that Nestlé is having contact with mothers in some countries. We need more detailed information to be able to make a more thorough examination, as our internal supervision showed that none is taking place.
- We would appreciate if IBFAN could provide us with specific evidence so that we can investigate further.
- 4 refer to promotion on follow-on formulas:
- According to Nestlé Instructions, follow-on formulas having the same brand name as the starter formulas (i.e. Nan 1 - Nan 2) are subject for the same marketing restrictions as starter formulas. As all Nestlé follow-on formula fall in this category, no promotion of follow-on formula is allowed for these products in the over 150 developing countries where Nestlé voluntarily applies the WHO Code.
- 1 refers to funds for congresses and other professional events:
- The WHO Code permits support for educational purposes (Article 7.5). When Nestlé gives support to health professionals a written request is required from the respective professional and/or health institution. This is in keeping with the International Code.
1. Examples of "samples" allegations include:
Bolivia
Allegation: Nestlé gives samples of Lactogen and Nestogen to health workers.
Fact: Nestlé does not sell either of these products in Bolivia.
Mexico
Allegation: Nestlé gives away samples of Al 110.
Fact: Al 110 has never been marketed in Mexico.
2. Examples of references to non-infant formula products include:
Malaysia
Allegation: Nestlé promotes Nestlé Cereal in shops.
Fact: Nestlé is allowed to do this as infant cereals are not marketed as breast-milk substitutes, so those activities are in line with the scope of the WHO Code and the Malaysian Code of Ethics.
United Arab Emirates
Allegation: Nestlé markets Neslac for use from the baby's first birthday, whereas breastfeeding should continue up to two years of age.
Fact: Neslac is a growing-up milk product, to be used from one year of age, and is not marketed as breast-milk substitute.
3. Example of developed countries allegations include:
USA
Allegation: Nestlé promoted its Nestlé Carnation Baby Formula via a Sweepstakes competition:
Fact: Nestlé does use the Internet and it is entirely within all applicable US laws governing such contests. The advertisement clearly stated that this competition was only open to US residents. Direct contact between infant formula manufacturers and consumers is allowed in the United States. However we have taken into consideration the appropriateness of using this specific kind of marketing activity of Infant formula and our participation in that programme was discontinued.
Detailed response to all allegations
Nestlé has produced a detailed response to each of the 107 allegations in the IBFAN report. The document is structured under following headings: Cereals, Developed Countries, Samples of Infant Formula, Printed Educational Material of Infant Formula, Gifts to Health Workers, Rewards for Sales, Discounts and Special Sales, Publicity of Infant Formulas, Labelling of Infant Formulas, Growing Up Milks, Contact with Mothers, Follow On Formulas, Funds for Congresses and other Professional Events and finally comments on the Code (see below).
All the allegations about Nestlé are practices that are in keeping with the International Code, and/or with national measures adopted by governments in implementing the Code. It is important to note in this context that the Code was passed as a recommendation to governments to implement according to their own legislative and regulatory frameworks. Nestlé voluntarily and unilaterally applies the Code in its entirety in all developing countries as a minimum (over 150 nations).
Conclusion
The IBFAN report appears to ignore the application of the International Code by governments, and applies standards out of keeping with the decisions of the member states of WHO. The report apparently also seeks to extend the Code application to products that are not marketed as breast milk?substitutes. We do not agree with the phrase in the editorial comment in the IBFAN report (page 46) which states "Nestlé's interpretation of the Code differs from the way UNICEF, the World Health Assembly, and IBFAN interpret it". We argue that IBFAN interprets the Code differently from the WHO "International Code of Marketing of Breast-milk Substitutes" passed by the World Health Assembly in May 1981. For additional explanation of our standpoint, please refer to the summary below.
THE CODE
The International Code & Subsequent World Health Assembly Resolutions (pages 8-9)
Scope
The Code covers the marketing of all breastmilk substitutes (Article 2). These include: infant formula (including so-called 'hypo-allergenic' formula, preterm milks and other 'special' baby milks); follow-up milks; complementary foods such as cereals, teas and juices, water and other baby foods marketed for use before the baby is six months old. The Code also covers feeding bottles and teats.
Comment from Nestlé
This is an IBFAN interpretation of the Scope of the Code. In the official booklet printed by WHO, there is a clarification of the Scope of the Code -Annex 3 of the Code-, made by Dr. Torbjorn Mork (Director-General of Health Services, Norway), representative of the Executive Board, and delivered before Committee A on May 20, 1981:
"The scope of the draft code is defined in Article 2. During the first four to six months of life, breast milk alone is usually adequate to sustain the normal infant's nutritional requirements. Breast milk may be replaced (substituted for) during this period by bona fide breast-milk substitutes, including infant formula. Any other food, such 'as cow's milk, fruit juices, cereals, vegetables, or any other fluid, solid or semi-solid food intended for infants and given after this initial period, can no longer be considered as a replacement for breast milk (or as its bona fide substitute). Such foods only complement breast milk or breast-milk substitutes, and are thus referred to in the draft code as complementary foods. They are also commonly called weaning foods or breast-milk supplements. Products other than bona fide breast-milk substitutes, including infant formula, are covered by the code only when they are "marketed or otherwise represented to be suitable ... for use as a partial or total replacement of breast milk". Thus the code's references to products used as partial or total replacements for breast milk are not intended to apply to complementary foods unless these foods are actually marketed as breast-milk substitutes, including infant formula, are marketed-as being suitable for the partial or total replacement of breast milk. So long as the manufacturers and distributors of the products do not promote them as being suitable for use as partial or total replacements for breast milk, the code's provisions concerning limitations on advertising and other promotional activities do not apply to these products".
SUMMARY: 107 IBFAN'S ALLEGATIONS AND FACTS
Infant Cereals - 34 Allegations:
As the WHO Code itself explains, Infant Cereals not marketed as breast-milk substitutes are considered as complementary foods.
WHO Code, Annex 3, paragraph 2, states that "Breast milk may be replaced (substituted for) during this period by bona fide breast-milk substitutes, including infant formula. Any other food, such as cow's milk, fruit juices, cereals, vegetables, or any other fluid, solid or semi-solid food intended for infants and given after this initial period, can no longer be considered as a replacement for breast milk (or as its bona fide substitute). Such foods only complement breast milk or breast-milk substitutes, and are thus referred to in the draft code as complementary foods."
Nestlé's infant cereals are not marketed, in any country, as breast-milk substitutes. These complementary foods are marketed in strict accordance with national regulations.
Activities in developed parts of the world: USA, Canada, Italy, Hong Kong, Taiwan - 22 Allegations:
The Code was purposely passed as a universal recommendation (rather than a regulation) to all member states of the WHO, to be implemented "as appropriate to their social and legislative framework, including the adoption of national legislation, regulations or other suitable measures".
Where governments in developed countries such as the United States or the E.U. countries, have clearly decided on how, and to what extent, they want to implement the Code, we abide by the rulings of governments.
So Nestlé strictly complies with the national legislation / regulations in these 5 countries.
Samples - 9 Allegations:
Since 1993/1994, Nestlé has phased out free supplies to hospitals and only gives such quantities of formula as is requested by authorities or institutions under very special circumstances. This may be for orphanages, in the event of serious social disturbances or natural disasters, or for social welfare reasons such as multiple births or death of a nursing mother. For purposes of professional evaluation, two cans of new infant formula products may be given to health professionals only once during their lifetime, and this is subject to very strict control.
Gifts to Health Workers - 8 Allegations:
The small gifts that markets occasionally give to health professionals (such as pens, notepads, etc.) never carry an Infant Formula brand, only the company logotype, and that is in line with WHO Code. Infant foods not marketed as breast-milk substitutes, thus not governed by the Code, may benefit from normal standard marketing/promotion practices. In the case of diaries, they are intended only for health professionals and in some cases contain pack shots of the products with the scientific information on each one.
Printed educational materials of Infant Formula - 7 Allegations:
All printed educational material is intended for health professionals only, and contains scientific information about the products or scientific educational articles, following the WHO Code recommendations and Nestlé's Internal Instructions.
Publicity on Infant Formula - 5 Allegations:
In developing countries, information relating to infant formula is not communicated directly to mothers or to the general public either through public media or by personal contact between company representatives and the public.
Our instructions include bans on:
- Participation in/sponsorship of baby shows (even when invited to participate by health professionals or charitable institutions).
- Distribution of gift packs for mothers (for example, containing infant formula or feeding bottles or other baby accessories).
- Distribution to mothers of materials of a non-educational nature (whether product-related or not): birth certificates, calendars, baby albums, etc.
Our internal enquiry shows that no publicity on infant formula was conveyed to mothers or to the general public in the countries mentioned by IBFAN.
Labelling of Infant Formulas - 5 Allegations:
The WHO Code stipulates what important information should go on each infant formula product. Nestlé puts all this information on all infant formula products in line with the WHO recommendations and national regulations. All tins and packets contain an "Important Notice" on the importance of breastfeeding ("Breastfeed is best for babies") on consulting the doctor or clinic for advice before taking the decision to use breast-milk substitutes and the consequences of improper use and the labels include clear instructions on how to prepare the formula. These instructions are also presented pictorially to ensure that the important information is properly understood. The Code also specifies that the label should be printed in "an appropriate language". More than one language will thus be needed in some countries.
Infant formula is the only product recognised by the United Nations Codex Alimentarius Committee to be suitable as a breast-milk substitute. We continue to carry out intensive research to improve our infant formula products to provide the best possible breast-milk substitute. This implies that our endeavour is to come as close as possible to breast-milk. Explaining this on labels does not amount to idealising breast-milk substitutes, the less so as we never omit to include the important notice on the superiority of breast-milk.
Rewards for sales, discounts and special sales - 4 Allegations:
Nestlé does not have such practices for Infant Formulas in any developing country. Nestlé's Instructions are very clear regarding this (Article 5.3), and our enquiry demonstrated that the Instructions are strictly adhered to in each market.
The Code permits normal wholesale pricing policies and Nestlé applies this policy. No discounts or short-term rebates are given to the trade for infant formula products.
Growing up milks - 4 Allegations:
Growing up milks are products for children after one year of age, and Nestlé does not market them as breast-milk substitutes in any country.
Contact with Mothers - 4 Allegations:
In developing countries Nestlé marketing staff dealing with infant formula are not allowed to have any kind of contact with pregnant women and mothers of infants or young children and/or their families, and strong disciplinary measures are taken if this still occurs.
The IBFAN's report only mentions, without any proof (dates, name of the hospital, name of the mothers if possible, etc.), that Nestlé is having contact mothers in some countries. We need more detailed information to be able to carry out a more thorough examination. Nestlé sells a wide range of products, and is also involved in many social activities, all of which may imply contacts with mothers or their families.
Our internal enquiry showed that the contacts that our staff have with mothers in these countries remain strictly within the restrictions laid down by the WHO Code.
Promotion on Follow-on formulas - 4 Allegations:According to Nestlé Instructions, follow-on formulas having the same brand name as the starter formulas (i.e. Nan 1 and Nan 2) are subject to the same marketing restrictions as starter formulas. No promotion is allowed for these products in developing countries.
Our internal enquiry showed no violation of those restrictions in any country.
Funds for congresses and other professional events - 1 Allegation:
The WHO Code permits support for educational purposes (Article 7.5). When Nestlé gives support to health professionals a written request has to be provided by the respective professional and/or health institution.
