It will now be a criminal offence for a company not to act by a given deadline on an ‘Improvement Notice’ issued by an enforcement authority in England and Wales, making these parties “liable, on summary conviction to a fine”.
It is not yet clear how large fines could be.
The changes make legal provisions for the enforcement of EU regulation 609/2013 for food intended for infants and young children, food for special medical purposes and total diet replacement for weight control, which will replace the UK’s Infant Formula and Follow-on Formula Regulations.
The changeover came into force last week.
Industry and NGOs alike have expressed support for the measures.
Breastfeeding campaign group Baby Milk Action (BMA) welcomed the move, which brings formula and baby food marketing laws in line with new EU regulations.
“Although the Regulations fall far short of international minimum standards repeatedly called for by UN human rights bodies, Baby Milk Action welcomes the improvements that have been made following its campaigns.
“Department of Health [DoH] proposals to decriminalise certain provisions of the laws have been shelved and instead a new ‘Improvement Notice’ regime will have legal force,” the NGO said in a statement.
Euromonitor International estimated the global infant formula market was worth €40bn in 2014. Nestlé, Mead Johnson Nutrition, Danone-Nutricia, Abbott Laboratories and Royal Friesland Campina are among the biggest names on the market.
However the group said it was still calling for the government to go further with its measures, saying the notices should be made public “for the many breaches of the regulations that have gone unpunished”.
Asked if it agreed with this call to go public and the claim there had been “many breaches”, the British Specialist Nutrition Association (BSNA) told us its members comply with regulations and welcome the introduction of Improvement Notices to give local authorities greater flexibility in their enforcement of the rules.
“Should any breach occur, industry would have time to address any issues identified in the Improvement Notice and take appropriate action. We expect that Government will implement changes in line with Improvement Notices already in use in other areas of food labelling,” director general Declan O’ Brien said.
‘Appropriate’, says industry
He said BSNA welcomed the development. “Improvement notices are an appropriate mechanism to initiate action.
“If the improvement notice is not complied with, criminal sanctions can follow as is appropriate. BSNA fully supports the new legislation.”
The UK DoH did not respond to our questions on whether it would consider Baby Milk Action’s call for additional measures.
There has been no Improvement Notice system introduced in Scotland, but there breaches will be deemed criminal offences under Scotland’s Statutory Instrument.
Risky post-Brexit time
BMA policy director Patti Rundall said the move was particularly important in “this confusing post-Brexit time”.
She said while the EU had not gone as far as she would have liked in implementing safeguards for parents and children, it was important to remember there had been some “very important legal controls” on the marketing and manufacturing of baby foods made through the EU.
She cited the EU’s fundamental ‘Precautionary Principle’ in deciding rules on new technologies like GM and pointed to a European Parliament vote on reductions in sugar in baby foods as examples of this positive influence.
“Before opening up the UK market to risky products from the USA, China or wherever, the Government needs to guarantee that these safeguards will not only be retained but strengthened so that the marketing that has misled parents and turned the UK into an obesogenic environment is ended.”
BMA has long been an advocate for tighter rules on the marketing of breast milk substitutes.
In the EU the composition and marketing of infant formula (0-6 months) and follow-on formula (6-12 months) is strictly controlled.
Visitors to websites for such products are greeted with mandatory messaging about the superiority of breast milk over substitutes, for example the 'Nestlé Baby' website which reads: "The World Health Organisation recommends exclusive breast feeding for the first 6 months and continued breast feeding thereafter for as long as possible. As babies grow at different rates, a health professional should advise you, on the appropriate time to introduce weaning foods to your baby. When introducing weaning foods, remember that they need to be suitable and safe to minimise risk to your baby’s health.
"The pages ahead and other subsequent communications we may have with you provide you with information on infant feeding and Nestlé products. If you continue, you will be accepting that Nestlé is supplying this information at your individual request. This is for information and educational purposes only and does not constitute advertising."