SC lifts ban on baby milk advertisements

The Supreme Court voided yesterday a government ban on the advertising of powdered baby milk.

Chief Justice Reynato Puno said that the advertising and promotion of breast milk substitutes properly fall within the ambit of the term commercial speech, a separate category of speech that is not accorded the same protection as other constitutionally guaranteed forms of expression.

“The absolute ban on advertising is unduly restrictive and is more than necessary to further the avowed governmental interest of promoting the health of infants and young children,” he said in his concurring and separate opinion.

“It ought to be self-evident, for instance, that the advertisement of such products which are strictly informative cuts too deep on free speech. The laudable concern of the respondent (DOH) for the promotion of the health of infants and young children cannot justify the absolute, overarching ban.”

In voiding part of the DOH’s revised implementing rules and regulations (RIRR), the SC said the Milk Code expressly provides that advertising promotion or other marketing materials may be allowed if said materials are duly authorized and approved by the Inter-Agency Committee.

“Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution,” read the decision.

The SC found the rest of the RIRR in consonance with the Milk Code.

The Pharmaceutical and Health Care Association of the Philippines (PHAP) asked the SC to declare unconstitutional the RIRR as provided in DOH Administration Order No. 2006-0012 issued last May 16.

The ban took effect last year.

The World Health Organization (WHO) and the United Nation’s Children’s Agency (UNICEF) supported the ban, but the PHCAP had challenged its legality.

UNICEF spokesman in Manila Dale Rutstein said his organization was disappointed by the decision.

WHO regional director Shigeru Omi has said failure to breastfeed leads to the deaths of 16,000 children in the Philippines each year.

The 53-page decision was written by Justice Ma. Alicia Austria-Martinez.

Concurring were Senior Associate Justice Leonardo Quisumbing and Justices Angelina Sandoval-Gutierrez, Antonio Carpio, Renato Corona, Conchita Carpio Morales, Dante Tinga, Minita  Chico-Nazario, Cancio  Garcia, Presbitero Velasco, Jr., and Ruben Reyes.

Justices Consuelo Ynares-Santiago and Adolfo Azcuna were on official leave, while Justice Antonio Eduardo Nachura did not take part. – With AFP