Pharmaceutical and Health Care Association of the Philippines v. Health Secretary and Ors.
Supreme Court of the Republic of the Philippines
9 October 2007
Article 24: Health and health services
Other International Provisions:
International Covenant on Economic, Social and Cultural Rights
Convention on the Elimination of All Forms of Discrimination Against Women
Universal Declaration of Human Rights
International Code of Marketing of Breastmilk Substitutes (ICMBS)
Constitution of the Republic of the Philippines 1987
Executive Order No. 51 (Milk Code)
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The “Milk Code,” Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR)
This case concerns a petition challenging the validity of a Department of Health (DOH) Administrative Order (RIRR), claiming that it contained provisions, including a ban on the advertising of breastmilk substitutes, that were not constitutional and went beyond the scope of the law it was supposed to implement (Milk Code). The Milk Code gave effect to the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA). The WHA had since adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected.
Issue and resolution:
Constitutionality of the provisions of the RIRR. The Court partially granted the petition, declaring certain provisions of the RIRR that prohibited the advertising and promotion of breastmilk substitutes and provided for administrative sanctions not found in the Milk Code in contravention of the Milk Code, and therefore null and void.
The Court considered whether certain international instruments are part of the law of the Philippines. The Court noted that the CRC does not contain specific provisions regarding the use or marketing of breastmilk substitutes. Instead, the relevant provisions are contained in the ICMBS and various WHA Resolutions. The ICMBS had been transformed into domestic law through local legislation, the Milk Code, and consequently it is the Milk Code that has the force and effect of law in the Philippines, and not the ICMBS per se. However, the Milk Code did not adopt the provision in the ICMBS absolutely prohibiting advertising of breastmilk substitutes, but instead created the Inter-Agency Committee to regulate such advertising. By contrast, the subsequent WHA Resolutions specifically prohibiting advertisements and promotions of breastmilk substitutes have not been adopted as domestic law. Moreover, such Resolutions do not form part of customary international law. Instead, they may constitute “soft law” or non-binding norms, principles and practices that influence state behavior (such as the Universal Declaration of Human Rights).
On the issue of whether the the RIRR is in accordance with the Milk Code, the Court found that sections 4(f) and 11 (prohibition on the advertising and promotion of breastmilk substitutes) and 46 (providing for administrative sanctions that are not found in the Milk Code) went beyond the DOH’s authority and contravened the Milk Code, and were therefore null and avoid. The Court found that the rest of the provisions of the RIRR are consistent with the Milk Code. Finally, the Court dismissed the petitioner’s argument that the RIRR is unnecessary and oppressive, and offensive to the due process clause of the Constitution insofar as it amounts to a restraint of trade, because trade must be subjected to some form of regulation for the public good and public interests must trump business interests.
Excerpts citing CRC and other relevant human rights instruments:
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. [...]
First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes. [...]
“Soft law” does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression of non-binding norms, principles, and practices that influence state behavior. Certain declarations and resolutions of the UN General Assembly fall under this category. The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia, Mejoff v. Director of Prisons, Mijares v. Rañadaand Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc. [...]
CRIN believes that this decision is consistent with the CRC. Although the CRC was found to be not directly relevant to this case as the Convention does not specifically address the use or marketing of breastmilk substitutes, CRIN emphasises children’s right to health under Article 24, which includes the obligation of the state to ensure that all segments of society, in particular parents and children, are informed of the advantages of breastfeeding.
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary and Ors. G.R. NO. 173034
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.