by Lawrence Kogan
In 2012, the Hong Kong Special Administrative Region issued a draft of the Hong Kong Code of Marketing and Quality of Formula Milk and Related Products, and Food Products for Infants & Young Children. It employs means to achieve policies that go far beyond relevant international standards of recognized standards bodies, such as the Codex Alimentarius Commission and WHO, and may clash with WTO rules. This is Part 1 of a 3 part analysis.
I. Introduction During October 2012, the Government of the Hong Kong Special Administrative Region ("GHK-SAR") issued in draft form the Hong Kong Code of Marketing and Quality of Formula Milk and Related Products, and Food Products for Infants & Young Children ("the Draft HK Code"). The GHK-SAR encouraged (effectively required) all formula milk manufacturers and distributors, health workers and health facilities to follow these guidelines. The Draft HK Code's stated objective is to provide "safe and adequate nutrition to infants and young children...by protecting breastfeeding and...ensuring the proper use of formula milk, formula milk-related products, and food products for infants and young children up to the age of 36 months, on the basis of adequate and unbiased information and through appropriate marketing...by...enabling parents to make informed decisions on infant feeding free from commercial influence" (emphasis added). The Draft HK Code is modeled after and aims to implement for Hong Kong the World Health Organization's ("WHO")'s International Code of Marketing of Breast-milk Substitutes, the WHO/UNICEF Global Strategy for Infant and Young Child Feeding, and subsequent World Health Assembly resolutions. These international initiatives focus partly on ensuring food safety, partly on promoting general public health by protecting breastfeeding, and partly on preventing deceptive marketing practices alleged to influence consumer decisions not to breastfeed. The Draft HK Code, in its current form, however, is quite objectionable. It employs onerous means to achieve its policy objectives that go far beyond relevant international standards developed by recognized international standards bodies, including the Codex Alimentarius Commission and the WHO. The Draft HK Code effectively imposes, without substantiating scientific evidence, a 30-month marketing ban on all follow-up formula and nonformula complementary food products intended for Hong Kong-based infants and young children 6-36 months of age, even if such products are marketed for use as breastmilk supplements. The Draft HK Code's follow-up formula and complementary food marketing ban is arguably 30 months longer than what the WHO Code and accompany World Health Assembly resolutions recommend, and consequently, certainly more trade-disruptive than reasonably available less trade-restrictive alternatives enacted by other WTO Members. Generally speaking, while the WHO Code focuses on liquid and solid infant food products marketed only as breastmilk substitutes for infants up to 4-6 months of age, the Draft HK Code focuses instead primarily on liquid and solid food products intended for infants and young children from 6-36 months of age and targets both breastmilk substitutes and supplements. Furthermore, unlike the WHO Code, the Draft HK Code also prohibits and/or severely restricts, during such 30-month period, the use in Hong Kong of economically valuable intellectual property ("IP") assets (i.e., trademarks, logos, symbols, and names consisting of word marks and non-word marks) on formula milk supplement product containers and labels, informational/educational materials and in all forms of product or company advertising. Granted, the Draft HK Code does not contain the more intrusive and trade-restrictive 'plain packaging' requirement incorporated in Australia's controversial tobacco legislation which mandates the use of unbranded, standardized containers for products, that has triggered international consternation and World Trade Organization ("WTO") litigation. Nevertheless, given the Draft HK Code's broad product scope, its word mark and non-work mark prohibitions and restrictions similarly deny formula manufacturers, distributors and licensees the ability to distinguish and differentiate their products in the Hong Kong marketplace. The Draft HK Code is certainly a complex instrument containing both food safety-related and non-food safety-related features, and for this reason, warrants analysis under several WTO Agreements. This article examines in-depth how the Draft HK Code prohibitions and restrictions outlined above create unnecessary obstacles to international trade that violate the provisions of the Sanitary and Phytosanitary ("SPS") Agreement, the Technical Barriers to Trade ("TBT") Agreement, and the Trade-Related Aspects of Intellectual Property Rights ("TRIPS") Agreement. As the analysis will reveal, these objectionable prohibitions and restrictions are not substantiated by scientific or other evidence and are more trade-restrictive than necessary to achieve the Draft HK Code's legitimate policy objectives considering the risks of nonfulfillment. This article will be divided into three parts. The first part will analyze these restrictions under the terms of the SPS Agreement. The second part will analyze these restrictions under the terms of the TBT Agreement. The third part will analyze these restrictions under the terms of the TRIPS Agreement. The GHK-SAR would be well advised to carefully review these agreements and this analysis prior to finalizing the Draft HK Code for adoption, lest it may find itself before a WTO tribunal. Although Hong Kong is a Special Administrative Region of China, it has retained the status of a separate customs territory that continues to decide its own economic and trade policies, and has remained a full member of the WTO. Consequently, any WTO Member grievance relating to the Draft HK Code may be lodged directly with the competent authority of the GHK-SAR, rather than with the competent authority of the Peoples' Republic of China. Hopefully, this article's analyses will diminish the likelihood of such an outcome, and promote further constructive dialogue among GHK-SAR's many agencies and interested public stakeholders regarding less IP and trade-restrictive ways to address food safety, public health and commercial practice concerns. [footnotes omitted]
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Lawrence A. Kogan, Esq. is Managing Principal of The Kogan Law Group, P.C., a New York City-based multidisciplinary legal services firm, and President/Director of the Institute for Trade, Standards and Sustainable Development (ITSSD) (www.itssd.org) that is a globally recognized NGO for reporting and analysis of the growing influence of evolving foreign and international public interest rules on private property rights and the American free enterprise and common law systems.