Table 4 Political actions by or on behalf of baby food industry in bilateral and national policy-making arenas

Canada

Lobbying to influence a free trade agreement to resolve a non-tariff barrier to trade issue

Canada is the leading market for US processed dairy exports. In 2017, facing a surplus supply of skim milk, Canada implemented a new ‘Class 7’ milk price, making domestic products cheaper, and thereby increasing Canadian exports of skim milk powder, while making dairy product imports (including infant formula) from the US less competitive [109]. Between 2016 and 2019, this provoked US$6,184,614 in lobbying the US Government, by infant formula producers and dairy industry associations [67]. The US raised concerns with Canada bilaterally and in the WTO Committee on Agriculture. Eventually, it was agreed to eliminate the Class 7 price under the new US-Mexico-Canada Agreement (USMCA), signed in 2018. In addition, Canada was required to monitor its exports of skim milk powder and infant formula, impose a surcharge on exports exceeding thresholds specified in the USMCA, and expand its duty-free tariff rate quotas on US dairy imports [109]. [Russ K, Baker P, Byrd M, Kang M, Siregar RN, Zahid H, McCoy D: Understanding the global trade and public health regime complex: a case study on breastfeeding and commercial breastmilk substitutes. Forthcoming]

China

Delaying the introduction of new food safety regulations

China strengthened food standards through a new Food Safety Law in October 2015. This included stricter product safety regulations, harsher punishments for violators, strengthened accountability mechanisms including protections for whistle-blowers, product certification requirements, and new provisions for infant formula products [110, 111]. Between 2013 and 2016, the National Milk Producers Federation, Mead Johnson, Abbott, and Infant Nutrition Council of America spent US$1,255,577 on lobbying the US Government on this issue [67]. The US Government submitted comprehensive written comments on the draft measure, and also urged China to notify the draft measure to the WTO TBT Committee, and the WTO SPS Committee. Implementation of the new product certification requirement was delayed by 2 years [112]. [Russ K, Baker P, Byrd M, Kang M, Siregar RN, Zahid H, McCoy D: Understanding the global trade and public health regime complex: a case study on breastfeeding and commercial breastmilk substitutes. Forthcoming]

Guatemala

Challenging new labelling provisions

In 1983, Guatemala was among the first countries to implement The Code into national law. The Guatemalan Law on the Marketing of Breastmilk Substitutes Decree 66–83, and Government Agreement NO 841–87, mandated that all products must state breastmilk is the best food for children under 2 years of age, and prohibited the idealisation of formula through the use of pictures of infants. In 1992, the Gerber Company, which used a picture of the ‘Gerber Baby’ face trademark on its products, refused to comply with a request by the Food and Drug Registration and Control Division to comply with the law. Gerber requested a court injunction, claiming its products were out of scope, and that this violated intellectual property rights obligations under international trade law. Gerber engaged the US State Department to apply pressure on the Guatemalan Government to amend the labelling provisions under the law, threatening to remove Guatemala’s ‘Most Favoured Nation’ status under the US Generalized System of Preferences. In 1995, Guatemala’s Supreme Court of Justice ruled in favour of Gerber, arguing the law applied to locally produced products only, and not imported ones [27, 113].

Hong Kong

Preventing the expanded scope of marketing regulations

In 2012, the Hong Kong Infant and Young Child Nutrition Association, a trade association representing Abbott, Danone, RFC, Mead Johnson, and Nestlé, opposed a draft regulation that would ban the promotion of foods for children aged 0–36 months. A document was presented to legislators stating the legislation should follow The Code, and apply to products for 0–6 months only. It stated ‘There is no scientific evidence to show promotion of food for children 6 months or above has affected the breastfeeding rates and its duration…Any biased over-regulation in infant formula marketing will be contrary to Hong Kong’s open free market economy and…the fundamental right of consumers to information and choices.’ [114]. An extensive legal analysis was published, concluding the draft regulation violated the WTO’s TBT, SPS and TRIPS Agreements [115]. The US Trade Representative, in its 2017 report on foreign barriers to trade, stated ‘If the draft Code is implemented as originally drafted, U.S. stakeholders maintain that, together with related legislative proposals, it will have significant negative impacts on sales of food products for infants and young children, and is more restrictive than relevant international standards’. Furthermore, ‘The United States is continuing to engage with the Hong Kong government on this draft measure’ [116].

India

Minimising costs associated with mandatory product safety certification

In 2003, the Government of India strengthened its Infant Milk Substitutes, Feeding Bottles, and Infant Foods (IMS) Act, so that it bans the marketing of food for children up to 24 months of age, as well as marketing by BMS producers to medical professionals and organizations, enforceable with criminal penalties [117]. In 2009, the Government further revised its certification compliance list, which includes infant formula. Products on the list must be certified for safety by the Bureau of Indian Standards [118]. Between 2012 and 2014, Mead Johnson, Abbott, and National Milk Producers Federation spent US$2,435,240 lobbying the US Government on this ‘Indian Bureau of Standards regulatory issue’ [67]. [Russ K, Baker P, Byrd M, Kang M, Siregar RN, Zahid H, McCoy D: Understanding the global trade and public health regime complex: a case study on breastfeeding and commercial breastmilk substitutes. Forthcoming]

Indonesia

Requesting notification of new regulations to the WTO

In 2016, Indonesia’s food and drug regulatory agency, Badan Pengawas Obat dan Makanan (the National Agency of Drug and Food Control), issued a draft of the Government Regulation Concerning the Labelling and Advertisement of Food, to implement provisions of the Food Law No.18/2012. The draft regulation would prohibit advertising or promotion of milk products for children aged 0–2 years, and the use of claims on foods for children aged 0–3 years; it would ‘severely restrict the infant formula industry’s interactions with health care providers’, and included further stringent requirements for nutrition labelling. The US Government requested Indonesia notify the measure to the WTO TBT Committee, before finalizing the regulation [119].

Japan

Challenging under fill of import quotas in the WTO, and lobbying for enhanced market access

Between 1996 and 2017, WTO members continuously raised concerns about Japan’s under fill of tariff rate quotas (TRQ) on dairy products, including infant formula. In 2015, the US released a press release on the impacts of the concluded negotiations on the Trans-Pacific Partnership Agreement, focusing on agricultural trade with Japan. This said that Japan would establish a transitional country specific quota (CSQ) for US exports of mineral concentrated whey, prepared infant formula, and whey. Between 2013 and 2014, prior to the conclusion of negotiations, dairy industry associations spent US$451,000 lobbying the US Government in relation to the dairy specific aspects of the TPP, mentioning Japan [67]. [Russ K, Baker P, Byrd M, Kang M, Siregar RN, Zahid H, McCoy D: Understanding the global trade and public health regime complex: a case study on breastfeeding and commercial breastmilk substitutes. Forthcoming]

Malaysia

Opposing proposed marketing regulations

In 2014, the Ministry of Health started revising and expanding Malaysia’s existing ‘Code of Ethics’ on the Marketing of Infant Foods and Related Products. This included expanded restrictions on educational, promotional, and marketing practices for infant formula and products for young children, as well as on the use of symbols and trademarked brand names on labels or packaging [116, 119]. The US Government raised questions concerning the evidence used in developing the proposed measure [116].

Philippines

Weakening the country’s Milk Code and implementing regulations

In 2006, the Pharmaceutical & Healthcare Association of the Philippines representing US milk formula manufacturers, and the US Chamber of Commerce (USCC), unsuccessfully appealed to the Supreme Court of the Philippines to rescind new Implementing Rules & Regulations (IRR) of the 1986 Milk Code. The new IRRs would extend products covered to 0–24 months, and ban false health and nutrition claims. The USCC sent a letter to the President of the Philippines, claiming the ‘the country’s reputation as a stable and viable destination for investments is at risk’. Industry lobbyists attempted to transfer the legislative debate in the House of Representatives from the Committee on Health, to the Committee on Trade and Industry, aiming to have the IRRs declared void [120]. In 2012, the Infant and Paediatric Nutrition Association of the Philippines, representing a wider number of corporations, supported a new ‘Milk Monster’ bill that would, among other things, reduce coverage of marketing restrictions to products for ages 0–6 months [120].

Thailand

Preventing the expanded scope of marketing regulations

In 2015, Thailand began drafting a revised version of its ‘Milk Code’, the Marketing Control of Foods for Infants and Young Children and Related Products. This would restrict educational, promotional, and marketing activities, including the use of trademarked brand names, packaging, and symbols, establish stronger penalties for advertising violations, and expand coverage to products for children aged 0–36 months. The US Government made ‘repeated requests’ that Thailand notify this measure to the WTO, which it did in November 2016. In April 2017, the National Legislative Assembly passed revisions to the Milk Code. Although various marketing restrictions, as well as penalties for violations were retained, advertising restrictions for products for ages 12–36 months were removed [119]. In 2017, the US Government reported it was ‘seeking to ensure that Thailand’s final measure ‘takes into account appropriate scientific and technical information in order to avoid any unnecessary restrictions on trade’, and that it had engaged ‘extensively with Thailand’ throughout the period ‘both bilaterally and at the WTO and continues to monitor developments, particularly any potential regulations relating to restrictions on products for young children’ [119].

United States

Lobbying to influence key government programmes and policies

Extensive political activities by Nestlé in the US have been documented [43]. In 2014, Nestlé spent an estimated US$160,000 lobbying in relation to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) programme, which provisions free formula for low-income families, and for which companies ‘bid’ to secure preferred provider status in state-level contracts, with bids often at or below cost [43]. In 2015, Mead Johnson called for narrowing the eligibility rules of the WIC programme [121]. Mead Johnson, Nestlé, and dairy company executives, served on the US Dietary Guidelines Advisory Committee [122].

Vietnam

Preventing the expanded scope of marketing regulations

In 2012, the US Embassy in Hanoi unsuccessfully petitioned the Chairman of Vietnam’s National Assembly and other senior ministers, to prevent expanded marketing restrictions for products for ages 0–6 moths to 0–24 months [120]. The letter stated ‘several US companies have contacted the US Embassy regarding their serious concerns about this proposed prohibition … which could have a significant negative impact on their business in Vietnam. We share their concerns’. Further, ‘We have not seen any compelling scientific, legal, or economic argument for changing the current regulatory regime’ [123].