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by Lawrence Kogan
This article has been divided into two parts. Part 1 will analyze these restrictions under the terms of the Technical Barriers to Trade ("TBT") Agreement, focusing on how the the Philippine breastmilk substitute and breastmilk supplement marketing framework ("PH BMS Framework")'s non-food safety-related marketing, labeling and trademark-use restrictions are more trade-restrictive and trademark-encumbering than necessary to achieve legitimate public policy objectives, considering the risks nonfulfillment would create. Part 2 will analyze them under the terms of the Trade-Related Aspects of Intellectual Property Rights ("TRIPS") Agreement. Part 2 discusses how the Framework's restrictions on the use of trademarks, logos and brand names violate the WTO TRIPS (Trade-Related Intellectual Property) Agreement.
I. Introduction: The Republic of "[t]he Philippines has fervently advocated for the implementation of the [World Health Organization ("WHO")] International Code of Marketing of Breast milk Substitutes" ("WHO Code") as national law, and has thereby "become an example internationally". "[T]he Philippine Government [has also endeavored] to increase breastfeeding rates (with the support of WHO, United Nations Children's Fund [("UNICEF")] and nongovernmental organizations) including [through] development and implementation of a national policy and plan of action on Infant and Young Child Feeding [("IYCF")] and...to promote breastfeeding counselling in communities." To improve the health and nutrition and to reduce the mortality rate of its youngest citizens, the first Philippine Congress convened following the abolition of the presidency of Ferdinand E. Marcos and the drafting of a new Federal Constitution, enacted the Rooming-In and Breast-Feeding Act of 1992 ("Act No. 7600). Act No. 7600's sole purpose was to encourage, protect and support the practice of breastfeeding, and it ultimately "served as the legal basis for the [national] Mother Baby Friendly Hospital Initiative (MBFHI)." During May 2005, the Philippines Department of Health ("PHDOH") also issued Administrative Order ("AO") 2005-0014 which set forth the Philippines National Policy on Infant and Young Child Feeding in implementation of the country's first National IYCF Plan of Action 2005-2010. AO 2005-0014's objective was "to improve the survival of infants and young children by improving their nutritional status, growth and development through optimal feeding. It closely tracks the WHO Global Strategy for Infant and Young Child Feeding ("WHO IYCF Strategy"), which recommends exclusive breastfeeding from 0-6 months and partial breastfeeding and safe and adequate complementary feeding from 6-24 months or beyond. Act No. 7600 was ultimately amended in 2009 by Act No. 10028, which further encouraged breastfeeding by providing specific measures to enable working mothers to continue expressing their milk and/or breastfeeding their infant or young child in the workplace. Obviously the Philippine Government promulgated these reasonable public health measures to establish a regulatory foundation for implementing the WHO IYCF recommendations. However, in its zeal to achieve these important public policy objectives the Government of the Philippines went astray. It developed a national framework for regulating the marketing of breastmilk substitutes and breastmilk supplements (including, follow-up formula and other bottle-fed and solid complementary foods) that far exceeds international WHO Code standards to unnecessarily impair international trade in such products. Said framework consists of a number of related legal instruments promulgated over the course of successive constitutions and administrations.
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Lawrence Kogan is President/Director of the Institute for Trade, Standards and Sustainable Development (ITSSD), a Princeton, NJ-based nonpartisan nonprofit legal research, analytics, and educational organization. The ITSSD examines international laws and policies relating to trade, industry, and positive sustainable development around the world. He also is founder and Managing Principal of The Kogan Law Group, P.C., a New York City–based multidisciplinary professional services firm specialized in identifying and addressing emerging regulatory, policy, and trade risks posed to multinational company assets, operations, and supply chains. Mr. Kogan currently serves as a vice-chair of the International Trade Committee of the Inter-Pacific Bar Association, and formerly served on the international trade committee of the Association of the Bar of the City of New York, as adjunct professor of international trade law and policy at the Seton Hall University Whitehead School of Diplomacy and International Relations, and as adviser to the National Foreign Trade Council and its membership concerning the interplay between international trade rules and food safety, health and environmental regulations.