The Supreme Court partially invalidated the Revised Implementing Rules and Regulations (RIRR) of the Milk Code, specifically striking down the absolute ban on advertising breast milk substitutes, as well as the imposition of administrative sanctions by the Department of Health (DOH). The court affirmed that while the government has a substantial interest in promoting breastfeeding, an outright prohibition on advertising went beyond what is necessary and contravened the Milk Code itself. This decision underscores the judiciary’s commitment to protect both public health and commercial free speech.

“Milk Code” or “Muzzle Code?” How Far Can Regulations Go?

At the heart of this case is the tension between the state’s vital interest in safeguarding infant health through the promotion of breastfeeding and protecting the rights of businesses to engage in lawful commercial activities. The Pharmaceutical and Health Care Association of the Philippines (Petitioner) challenged Administrative Order (A.O.) No. 2006-0012, or the Revised Implementing Rules and Regulations (RIRR), arguing that the regulations went beyond the scope of Executive Order No. 51, also known as “The Milk Code.” The Milk Code, enacted in 1986, sought to implement the International Code of Marketing of Breastmilk Substitutes (ICMBS) while accounting for the country’s specific legislative and social framework.

The Department of Health (DOH) contended that the RIRR was not only aligned with the Milk Code, but also with various international instruments aimed at promoting infant and young child nutrition. International laws may become part of the domestic legal framework through two methods: transformation and incorporation. Transformation involves enacting international law into domestic law through legislation, whereas incorporation occurs when international law is adopted by constitutional declaration. In this case, the court clarified that while the ICMBS itself was not a treaty ratified by the Senate, it had been transformed into domestic law through the Milk Code. However, subsequent resolutions from the World Health Assembly (WHA) hadn’t been transformed into domestic law and couldn’t be enforced through the RIRR.

Building on this, the Supreme Court considered whether the RIRR’s provisions were consistent with the Milk Code. A key point of contention was the absolute ban on advertising, promotion, or sponsorship of breastmilk substitutes for infants up to 24 months. The Milk Code created an Inter-Agency Committee (IAC) responsible for reviewing and approving marketing materials, thus implying that advertising was not completely prohibited. Section 6(a) of the Milk Code states,

“No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.”

The Supreme Court emphasized that the power to control information does not extend to an absolute prohibition on advertising as evident through various provisions of the Milk Code allowing for appropriate marketing and distribution with objective and consistent information. According to the court, the DOH arrogated to itself not only the regulatory authority given to the IAC but also imposed an absolute prohibition on advertising, promotion, and marketing. However, some requirements in the RIRR, such as labeling standards that discourage the undermining of breastfeeding, aligned with the intent of the Milk Code. Thus, some limitations are valid as long as they promote fair, transparent advertising without discrediting breastmilk benefits.

Ultimately, the Court declared that Sections 4(f) and 11, which imposed an outright ban on advertising, were invalid due to being ultra vires, or beyond the authority of the DOH. Moreover, the court found that Section 46 of the RIRR, which provided administrative sanctions not outlined in the Milk Code, also exceeded the agency’s authority. Absent a clear grant of power to impose administrative fines, the DOH overstepped its authority by including such penalties in the RIRR. In essence, the decision recognized that reasonable regulations are permissible, but absolute prohibitions without legislative mandate are not.

FAQs

What was the key issue in this case?	The key issue was whether the Department of Health’s regulations implementing the Milk Code went beyond the law itself by imposing an absolute ban on advertising breast milk substitutes and imposing penalties. The Supreme Court had to determine the extent of the DOH’s authority.
What did the Milk Code aim to do?	The Milk Code, or Executive Order No. 51, sought to protect and promote breastfeeding by ensuring proper marketing and distribution of breast milk substitutes, supplements, and related products with adequate information. It was intended to contribute to providing safe and adequate nutrition for infants.
Why did the petitioner challenge the RIRR?	The petitioner, a pharmaceutical and healthcare association, challenged the RIRR, arguing that it contained unconstitutional provisions and exceeded the scope of the Milk Code. They believed it was imposing unfair restrictions on the marketing of their products.
What is ‘commercial speech,’ and how does it relate to this case?	Commercial speech refers to expressions related to economic transactions. The Chief Justice’s concurring opinion indicated commercial speech should be protected, meaning governments can regulate speech concerning commerce only if there is a substantial interest at stake.
What is the Inter-Agency Committee (IAC), and what is its role?	The IAC is a committee created by the Milk Code to review and examine advertising, promotion, or other marketing materials for products covered by the Code. It was empowered to approve, disapprove, or delete objectionable portions from these materials.
What was the court’s ruling on the advertising ban?	The Court found that the RIRR’s absolute ban on advertising breast milk substitutes was ultra vires, or beyond the DOH’s authority. The Milk Code envisioned regulation rather than outright prohibition and therefore, Sections 4(f) and 11 of RIRR was invalid.
Can the DOH impose administrative sanctions under the Milk Code?	The Court ruled that the DOH could not impose administrative fines since neither the Milk Code nor the Administrative Code granted them such power. Providing such penalties was deemed beyond the agency’s authority.
What is the impact of this ruling?	The ruling clarified the limits of the DOH’s regulatory powers, allowing for fair trade of milk products while upholding the state’s interest in infant health. It also reinforced that administrative agencies can’t impose penalties without an explicit grant of authority.

This case underscores the importance of balancing public health concerns with commercial freedoms. While the state has a legitimate interest in promoting breastfeeding and ensuring proper nutrition for infants, any regulatory measures must be carefully tailored to avoid infringing on constitutional rights and exceeding statutory authority. The court’s decision reinforces that regulations must be reasonable and consistent with the intent of the enabling law.

For inquiries regarding the application of this ruling to specific circumstances, please contact ASG Law through contact or via email at frontdesk@asglawwpartners.com.

Disclaimer: This analysis is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please consult with a qualified attorney.
Source: Pharmaceutical and Health Care Association of the Philippines vs. Health Secretary Francisco T. Duque III, G.R. No. 173034, October 09, 2007