Infant Formula and Follow-on Formula (England) Regulations 2007

My Lords, I warmly welcome this debate and agree that although some progress is being made, not enough has been done to promote breastfeeding or to curb the marketing power of the formula manufacturers. It is a question, as the noble Baroness said, not only of ceasing to promote formula but of making far greater efforts to educate the public in the benefits of breastfeeding and to encourage pregnant women and mothers to pay attention to that message. The Merits Committee has drawn to our attention the evidence that it received from a powerful consortium of professional and lay organisations; that is, that these regulations should have banned the advertising of infant milk formula and follow-on formula and that the labelling should include, as the noble Baroness said, a minimum temperature for the water used for mixing. By failing to do so, according to the Baby Feeding Law Group, the regulations undermine the efforts being made by health professionals to see that mothers are provided with scientifically correct advice on the best feeding regime for infants. That point of view is supported by the Scientific Advisory Committee on Nutrition and the Local Authority Coordinators of Regulatory Services. An international code of marketing of breast-milk substitutes was developed as far back as 1981. We understand that the UK and other member states attempted to strengthen the draft directive so that it mirrored the wording of the code. The Commission ignored that advice, but there is always a margin of appreciation allowing member states discretion to go beyond the strict terms of a directive and one often hears criticism of states for the so-called gold-plating of European legislation mentioned by the noble Baroness, Lady Finlay. But in this case there would have been the powerful argument that we had consistently undertaken to comply with the code and that the promotion of these products, which undermines the Government's policy of encouraging mothers to continue breastfeeding their infants until they are at least six months old, is positively harmful. Yet in an NCT/UNICEF survey, 74 per cent of respondents said that they had started using follow-on milk when their baby was less than six months old; this applied particularly to younger, less well educated parents, who need the benefit of this advice more than those who are highly educated and therefore receptive to government messages. The Government no doubt have some idea of how much the industry spends on marketing these products. It would be useful if the Minister could give us a ballpark figure and compare it with the amount that the Department of Health spends on the promotion of breastfeeding, because I think that there is a gross disparity between the two figures. The follow-on milks are unnecessary for any infant and I welcome the Department of Health agreement with the World Health Assembly resolution of 1986 to that effect. The Minister of State in another place agreed that there was misleading advertising, on which she said that there was a package of measures to strengthen controls that had been agreed with stakeholders. These controls were said to be, "““effective, proportionate and evidence-based””.—[Official Report, Commons, 16/1/08; col. 285WH.]" However, I understand that advertising of follow-on formula will continue to be allowed, subject to conditions, in print media and broadcasting. So what are these controls and what is their statutory authority? If they are supported only by the voluntary agreement of the industry and there are no sanctions for non-compliance with the controls or with the guidance that the Minister said was now operational, they are not likely to have much of an impact. The formula market was worth £119 million in 1995 and £199 million in 2006, with the industry spending more than £8 million in the latter year—twice the amount that it spent three years earlier, with television advertising accounting for about 80 per cent of the total. As I say, the effect of this propaganda is to counter the Government’s advice that breastfeeding is best for infants up to at least six months and has long-lasting beneficial effects on health in later life—a message put across with only a fraction of the industry's money. We welcome the Government’s promise of the independently chaired review to assess whether these regulations and the guidance are working and their undertaking to consider further legislation if the arrangements are found not to be working. Does the Minister agree that unless there is a reduction in the sales of both infant and follow-on formula, the controls will need to be strengthened? If these regulations are the best that we can do within the terms of the directive, what could be done theoretically in 12 months’ time that could not have been contained in the regulations? Cases have been started in the courts of England and Wales, Scotland and Northern Ireland by the Infant and Dietetic Foods Association, an organisation representing the manufacturers of infant and follow-on formula, aimed at suspending the regulations in all three jurisdictions. The FSA said that it was, "““extremely surprised that companies to whom we have been talking about these regulations for almost three years should decide at the last moment to apply for judicial review””—" unless, of course, their motivation is simply to delay implementation of the directive for as long as possible. They found ways of getting round the previous legislation and, as George Monbiot said in the Guardian, in the drafting of the directive on which these regulations are based the FSA was outgunned by corporate lobbyists. The lobbyists' argument now is that originally there was to be a transition period lasting until the end of 2009, during which they would be able to ship products meeting the previous statutory specifications, which they ignored anyway. But they had already had a lead-in period since the publication of the directive on 30 December 2006 and some had already changed their labelling—the only matter at issue in these cases. The changes in the labelling requirements are to ensure that customers are able to distinguish clearly between infant and follow-on formula and that follow-on is labelled as being suitable only for infants over six months and then only on the basis of advice from qualified persons. Will the Minister confirm that the industry accepts that advertising and presentation requirements entered into force on 1 January? Of course, advertisements often contain images of the packaging, including the labelling, so the industry would have been able to make the adjustments by 1 January in spite of its protestations now. I would be grateful if the Minister could say when the 12-month review will start, in the light of these cases, and whether, since it appears on the surface to be the threat of criminal proceedings for non-compliance that caused the IDFA to launch these proceedings, she can give some assurances on the advice given by the FSA on the adoption of a graduated and educative approach to enforcement, which might persuade the litigants to withdraw from these cases. We have one of the lowest breastfeeding rates in Europe. The last national infant feeding survey, in 2005, showed that in spite of government encouragement there had been only a marginal improvement over the last 20 years. As the noble Baroness explained, these regulations do not go far enough. I hope that, if the 12-month review does not show that they have made a difference, we shall consider what more can be done within the directive and whether we and like-minded member states should go back to the Commission with firm proposals for more comprehensive implementation of the international code.