ACCC to reauthorise agreement to not advertise infant formula, seeks submissions on toddler milk advertising

The ACCC proposes to re-authorise a longstanding agreement by manufacturers to not promote infant formula, in order to protect rates of breastfeeding.

However, the ACCC’s draft determination also notes our concerns that the public benefits of the agreement may be being reduced by toddler milk advertising.

The “Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement” (MAIF Agreement) is a voluntary agreement that restricts the advertising and promotion of infant formula by manufacturers and importers directly to the public, and limits their contact with health care professionals.

But signatories to the agreement also market toddler milk in almost identical packaging and branding to infant formula, with numbered ‘stages’, as part of a consistent product line. Because of these links, advertising for toddler milk can also promote infant formula. This has the potential to make the agreement less effective in protecting breastfeeding, and the ACCC is concerned about the extent to which this might be eroding the public benefits from the MAIF Agreement.

“Restricting advertising of infant formula in this way does restrict competition to a degree, but there’s a clear public benefit to allowing that restriction, so long as it is effective in protecting breastfeeding rates”, ACCC Chair Rod Sims said.

“However, if the industry is able to market in ways that “work around” the restrictions, then the agreement will not be effective in what it’s intended to achieve,”

“The ACCC is not in the business of setting health policy, but when we are asked to grant exemptions to competition law we will only do so when we are satisfied that there are public benefits, which is why we’re seeking more information on this issue.”

The ACCC invites submissions on its draft determination, including further information and evidence on the extent to which toddler milk marketing has the same effect as the marketing of infant formula and reducing rates of breastfeeding.

More information, including the draft determination and details on how to make a submission, are available from the ACCC’s public register at Infant Nutrition Council Limited.

Background

The MAIF Agreement forms part of Australia’s implementation of its obligations as signatory to the World Health Organization’s (WHO) International Code of Marketing of Breast-Milk Substitutes (1981) (the Code). The MAIF Agreement has been authorised in more or less its current form since 1992.

In 2016 the WHO published guidance to clarify that the breast milk substitutes covered by the Code should be understood to include toddler milk products, and that marketing of toddler milk products was effectively promoting infant formula. Further information is available from the WHO at: Guidance on ending inappropriate promotion of foods for infants and young children (2016) and Cross promotion of infant formula and toddler milks (2019).

The Infant Nutrition Council, on behalf of its members, has applied for authorisation of the agreement from the ACCC because it may involve an agreement between competition which would otherwise be in breach of competition provisions of the Competition and Consumer Act 2010. The ACCC can grant authorisation which provides businesses with legal protection for arrangements that may otherwise risk breaching the law but are not harmful to competition and/or are likely to result in overall public benefits.

As such, the ACCC’s proposal to authorise the MAIF Agreement is not an endorsement that these arrangements are the best way to address issues around infant feeding and the promotion of breast milk substitutes, or that the MAIF Agreement is preferable to government regulation in this area. Rather, the ACCC’s role in this matter is to assess and weigh the likely public benefits and public detriments of the agreement for which authorisation is sought.

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