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The noble Lord said: I shall speak also to Amendments Nos. 36, 38, 43, 44, 46, 47, 54, 60 and 64. The amendments have no substantive effect but will change the various references to the exercise of delegated powers by the Secretary of State in Part 3 of the Children Act 1989 to reflect the fact that, in most cases, the exercise of these powers in relation to Wales is now devolved to Welsh Ministers.

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Broadly, the effect of the amendments is to substitute “appropriate national authority” for references to the Secretary of State in Part 3 of the 1989 Act. “Appropriate national authority” is defined in new Section 30A of the 1989 Act as the Secretary of State in relation to England and the Welsh Ministers in relation to Wales. Section 104 of the Children Act 1989 is also amended and new Section 104A inserted, which sets out the appropriate procedure for the making of regulations under the Act to make separate provision for England and Wales.

The amendments are consistent with the devolution settlement and make clear where powers are now exercised by Welsh Ministers in relation to Wales. This makes it much easier for any reader of the legislation as they will no longer have to refer back to the Government of Wales Acts. I beg to move.

On Question, amendment agreed to.

Baroness Crawley: I beg to move that the House do now resume and that the Committee stage does not begin again before 8.20 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Baroness Crawley: My Lords, I beg to move that the House do now adjourn during pleasure for 10 minutes.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.19 to 8.29 pm.]

Infant Formula and Follow-on Formula (England) Regulations 2007

7.29 pm

Baroness Finlay of Llandaff rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 20 December 2007, be annulled.

The noble Baroness said: My Lords, I start by welcoming the Government’s commitment to increase the level of breastfeeding in this country by 2 per cent per annum, particularly among disadvantaged groups, as the benefits of breastfeeding, especially in the first six months, are beyond doubt. The issue today is the regulation of infant formula and follow-on formula, specifically SI 2007/3521, which gives effect to the relevant European Union directive. The directive updates requirements on the composition, advertising and labelling of infant formula products.

I have tabled the Prayer because these regulations do not go far enough to promote breastfeeding as best practice for new mothers. Broadly speaking, the statutory instrument will achieve four key measures: first, better labelling will clarify that follow-on formula should be used only by infants from six months of age, rather than four months as at present, and labels should promote breastfeeding; secondly, it restricts advertising and promotion of formula; thirdly, it stipulates the nutritional content of formula, which must be clear on the label, and says that the product must require only

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clean water to reconstitute the powder; and, fourthly, it ensures that formula exported to developing countries is of EU standards, although, sadly, a lack of universal clean water in those countries is often an infection source. However, the regulations do not go far enough.

The health benefits of breastfeeding are widely accepted. The World Health Organisation states:

It says:

Breastfeeding is clean and safe; breast milk contains antibodies that reduce the risk of acute infection, such as diarrhoea, pneumonia, ear infections, haemophilus influenzae, meningitis and urinary tract infection. Moreover, benefits carry on into later life, as breast milk confers some protection against allergies, diabetes and even ulcerative colitis.

The National Childbirth Trust has said that,

and an informed decision must be free of commercial pressures.

Mothers, especially first-time mothers, need help and encouragement to breastfeed. They need preparation in antenatal care and a calm, supportive environment, with encouragement to maintain their own fluid intake as feeding is established. I recall having to justify carrying on breastfeeding in the face of comments such as, “Are you sure the baby’s getting enough?”, “Why don’t you give a bottle from time to time” or “You must be exhausted, breastfeeding”. I had to argue that I did not want to introduce solids at four months because of a strong family history of eczema. Sadly, I hear over and over again that such fights to breastfeed continue today.

We must improve the flow of information to women in pregnancy so that they realise that breastfeeding is easy, enjoyable and bonding and will help them to get their figure back quickly, too. It is the most natural and healthiest way in which to feed a child. Sadly, some mothers cannot breastfeed, but infant formula should be a fallback choice if breastfeeding is not right for them. Of course, such mothers must not feel stigmatised and safe formula products have been important for many women.

Those mothers need clear information on what is contained in formula products and how to prepare the formula safely. For example, current World Health Organisation guidelines recommend that the water used to mix the formula powder should be 70 degrees centigrade or higher to kill any bacteria and that the formula should then be allowed to cool. However, that information is not on labels, even though the WHO says that it is the single most effective step to reduce the risk of bacterial contamination and that contamination with Enterobacter sakazakii is found in some tins of formula, even before they are opened.

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The Royal College of Midwives and the World Health Organisation support exclusive breastfeeding in the first six months without other solids or liquids. Although the NHS Information Centre’s most recent survey, from 2005, showed initial breastfeeding rates of 78 per cent, by six weeks breastfeeding rates had fallen to 48 per cent and by six months to 25 per cent. However, the figures for exclusive breastfeeding are worryingly lower, at 45 per cent at one week and 21 per cent at six weeks following delivery. The issue is not simply one of ceasing to promote formula; it is one of education and support. This study found that mothers who received advice, usually from the midwife, prior to the birth of the child, were more likely to breastfeed than those who had not received advice.

So what is wrong with these regulations? At first sight, they look excellent. The Baby Feeding Law Group and the Breastfeeding Coalition, which represents the views of 38 organisations, including five royal colleges, suggest that the regulations should also: ban all promotion of formula, both infant and follow-on; prohibit baby-feeding companies from seeking direct or indirect contact with pregnant women and mothers, including through company carelines; ban baby-feeding companies from setting sales targets and giving incentives to their employees; ban marketing complementary foods that could undermine breastfeeding; and prohibit formula gifts to healthcare workers.

The Royal College of Midwives has also called for the regulations to: prohibit the use of the image of a feeding bottle to indicate baby-changing areas in public places; ban the use of pictures of bottle-feeding babies in magazines that are aimed at pregnant women and new mothers; prohibit company-produced or company-sponsored material on infant feeding; and prohibit the promotion of names associated with breast-milk substitutes.

I call on the Minister to ensure that the Government make moves to adopt the suggestions and keep a close eye on the formula companies, as some have in the past found and exploited loopholes. There need to be clear distinctions between infant and follow-on formula products, so that companies cannot advertise by reverse association. Yes, I am calling for gold-plating of the EU regulations.

Interestingly, the companies that produce formula products claim that the timeframe to comply with the regulations is so short that they took a court injunction to stay the implementation date, which had been brought forward from January 2010, as originally planned, to 11 January 2008, although no other EU country has shortened the transitional arrangements. A judicial review is now scheduled, so it may be helpful for the Minister to clarify the English position.

The principle of these regulations is to be applauded. Infant-formula companies should not be allowed to undermine breastfeeding by heavily promoting their own products. It is an opportunity not to be missed. We have a chance to raise breastfeeding rates in this country, but these regulations need strengthening to achieve that. I beg to move.

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Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 20 December 2007, be annulled.—(Baroness Finlay of Llandaff.)

Lord Avebury: My Lords, I warmly welcome this debate and agree that although some progress is being made, not enough has been done to promote breastfeeding or to curb the marketing power of the formula manufacturers. It is a question, as the noble Baroness said, not only of ceasing to promote formula but of making far greater efforts to educate the public in the benefits of breastfeeding and to encourage pregnant women and mothers to pay attention to that message.

The Merits Committee has drawn to our attention the evidence that it received from a powerful consortium of professional and lay organisations; that is, that these regulations should have banned the advertising of infant milk formula and follow-on formula and that the labelling should include, as the noble Baroness said, a minimum temperature for the water used for mixing. By failing to do so, according to the Baby Feeding Law Group, the regulations undermine the efforts being made by health professionals to see that mothers are provided with scientifically correct advice on the best feeding regime for infants. That point of view is supported by the Scientific Advisory Committee on Nutrition and the Local Authority Coordinators of Regulatory Services.

An international code of marketing of breast-milk substitutes was developed as far back as 1981. We understand that the UK and other member states attempted to strengthen the draft directive so that it mirrored the wording of the code. The Commission ignored that advice, but there is always a margin of appreciation allowing member states discretion to go beyond the strict terms of a directive and one often hears criticism of states for the so-called gold-plating of European legislation mentioned by the noble Baroness, Lady Finlay. But in this case there would have been the powerful argument that we had consistently undertaken to comply with the code and that the promotion of these products, which undermines the Government's policy of encouraging mothers to continue breastfeeding their infants until they are at least six months old, is positively harmful. Yet in an NCT/UNICEF survey, 74 per cent of respondents said that they had started using follow-on milk when their baby was less than six months old; this applied particularly to younger, less well educated parents, who need the benefit of this advice more than those who are highly educated and therefore receptive to government messages.

The Government no doubt have some idea of how much the industry spends on marketing these products. It would be useful if the Minister could give us a ballpark figure and compare it with the amount that the Department of Health spends on the promotion of breastfeeding, because I think that there is a gross disparity between the two figures. The follow-on milks are unnecessary for any infant and I welcome the Department of Health agreement with the World Health Assembly resolution of 1986 to that

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effect. The Minister of State in another place agreed that there was misleading advertising, on which she said that there was a package of measures to strengthen controls that had been agreed with stakeholders. These controls were said to be,

However, I understand that advertising of follow-on formula will continue to be allowed, subject to conditions, in print media and broadcasting.

So what are these controls and what is their statutory authority? If they are supported only by the voluntary agreement of the industry and there are no sanctions for non-compliance with the controls or with the guidance that the Minister said was now operational, they are not likely to have much of an impact. The formula market was worth £119 million in 1995 and £199 million in 2006, with the industry spending more than £8 million in the latter year—twice the amount that it spent three years earlier, with television advertising accounting for about 80 per cent of the total. As I say, the effect of this propaganda is to counter the Government’s advice that breastfeeding is best for infants up to at least six months and has long-lasting beneficial effects on health in later life—a message put across with only a fraction of the industry's money.

We welcome the Government’s promise of the independently chaired review to assess whether these regulations and the guidance are working and their undertaking to consider further legislation if the arrangements are found not to be working. Does the Minister agree that unless there is a reduction in the sales of both infant and follow-on formula, the controls will need to be strengthened? If these regulations are the best that we can do within the terms of the directive, what could be done theoretically in 12 months’ time that could not have been contained in the regulations?

Cases have been started in the courts of England and Wales, Scotland and Northern Ireland by the Infant and Dietetic Foods Association, an organisation representing the manufacturers of infant and follow-on formula, aimed at suspending the regulations in all three jurisdictions. The FSA said that it was,

unless, of course, their motivation is simply to delay implementation of the directive for as long as possible. They found ways of getting round the previous legislation and, as George Monbiot said in the Guardian, in the drafting of the directive on which these regulations are based the FSA was outgunned by corporate lobbyists. The lobbyists' argument now is that originally there was to be a transition period lasting until the end of 2009, during which they would be able to ship products meeting the previous statutory specifications, which they ignored anyway. But they had already had a lead-in period since the publication of the directive on 30 December 2006 and some had already changed their labelling—the only matter at issue in these cases.

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The changes in the labelling requirements are to ensure that customers are able to distinguish clearly between infant and follow-on formula and that follow-on is labelled as being suitable only for infants over six months and then only on the basis of advice from qualified persons. Will the Minister confirm that the industry accepts that advertising and presentation requirements entered into force on 1 January? Of course, advertisements often contain images of the packaging, including the labelling, so the industry would have been able to make the adjustments by 1 January in spite of its protestations now.

I would be grateful if the Minister could say when the 12-month review will start, in the light of these cases, and whether, since it appears on the surface to be the threat of criminal proceedings for non-compliance that caused the IDFA to launch these proceedings, she can give some assurances on the advice given by the FSA on the adoption of a graduated and educative approach to enforcement, which might persuade the litigants to withdraw from these cases.

We have one of the lowest breastfeeding rates in Europe. The last national infant feeding survey, in 2005, showed that in spite of government encouragement there had been only a marginal improvement over the last 20 years. As the noble Baroness explained, these regulations do not go far enough. I hope that, if the 12-month review does not show that they have made a difference, we shall consider what more can be done within the directive and whether we and like-minded member states should go back to the Commission with firm proposals for more comprehensive implementation of the international code.

7.45 pm

Baroness Barker: My Lords, I thank the noble Baroness, Lady Finlay, for initiating this debate. As my noble friend Lord Avebury indicated, this matter is important not only in this country but internationally. What we do domestically has influence across the world. My noble friend is right: the benefits of promoting breastfeeding are undisputed. All the WHO research shows that to be the case. Every systematic study carried out both here and in the third world has concluded that promoting breastfeeding is in the best interests of the safety and long-term health of children. Yet UK breastfeeding rates at six months are the second lowest in Europe. As my noble friend Lord Avebury said, we have a growing market for infant formula.

These regulations have attracted a fair degree of criticism. The Government have tried not only to comply with the European directive and to promote the health and well-being of children but also to take into account some of the points made by the manufacturers. Those are difficult matters to balance. I believe that, originally, the Government sought to give primacy to children’s welfare. I hope that the judicial review to which my noble friend Lord Avebury referred will not weaken the Government’s resolve to go ahead in the way they originally planned. The Government were right to take the view

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that we do not have to wait until 2010 to implement the directive and that it is in the best interests of children in this country that these regulations should be adopted sooner. Therefore, I hope that the Government do not cave in in the face of the judicial review. As my noble friend Lord Avebury said, it is important that the directive is implemented as soon as possible so that the review can take place and we can gather the evidence that shows whether the regulations are sufficiently strong. The Minister in another place, Dawn Primarolo, promised that such a review would take place.

It is important to make sure that those who watch our debates understand that this is not merely some dry, technical Eurocratic matter. This legislation has been debated extensively throughout the European Union. Its purpose is to better protect the health of infants and to ensure that information does not counter the promotion of breastfeeding. That is the key argument. No one is going to suggest that there will never be a need for infant formula. There will always be women who cannot breastfeed, for reasons of illness either of them or of their children. It will always be a necessary product. What is wrong is to advertise it in such a way that one undermines a person’s ability to continue to breastfeed when they can do so. The point is about when information becomes advertising and promotion of a product rather than promotion of health. That is what we are trying to focus on this evening.

In many ways, the regulations are a compromise; they do not go as far as they might. We have not gone as far down the line as some of the Scandinavian countries, which have managed to come to an agreement whereby companies have adopted a voluntary ban on advertising of all follow-on formula. As my noble friend Lord Avebury and the noble Baroness, Lady Finlay, said, there is a widespread view that follow-on formula is unnecessary and is in fact perhaps unhelpful to families bringing up small children who may be learning for the first time the process of weaning a child on to other foodstuffs.

The noble Baroness, Lady Finlay, is right that in third-world countries there have been instances of child deaths attributable to contamination from other elements used to rehydrate the powders. It is regrettable that in the regulations there is no requirement for there to be clear information about the risk of contamination and advice about how such risk can be avoided by, for example, rehydrating using clean water and sterile vessels.

Finally, it is important that women with young babies continue to have access to advice and support about breastfeeding. For those women who experience difficulties and who may start to breastfeed and then for reasons of illness may have to change, it is crucial to their health and that of their children that they have access to helpful midwives and health visitors and that the information should be free from all commercial pressures. That is the absolute bottom line as far as we on these Benches are concerned. Therefore, can the Minister confirm that that would be the effect of the regulations?

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