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Baroness Hanham: My Lords, I, too, thank the noble Baroness, Lady Finlay, for introducing the debate, which has not been entirely what I expected, although if I had really thought about it I might have known that it would concentrate largely on breastfeeding. I will not do so. The main objections to the regulations are, first, that the implementation is being unnecessarily rushed. The date of l January 2008 does not give opportunity for companies to put into action the new labelling required, on either new or current products, in a reasonable timescale. The detail on the labelling in the directive is extensive, so it cannot be fudged.

Secondly, there has been insufficient consideration of the guidance, which has not yet completed its consultation process. Normal procedure, whereby guidance is published at least three months before statutory instruments come into force, has consequently not happened. Any guidance that is now published, if the timescale of the regulations is not changed, will be well after the statutory instrument has been implemented.

As the Minister will know, and as has been said by other speakers, the rushing of the regulations, and their timing of January 2008, has been challenged in the High Court by the Infant and Dietetic Foods Association, and this action has yet to be heard. However, it has been brought about because of the unexplained alteration in the timetable for labelling and advertising from a two-year transition period to implementation by January 2008. No explanation appears to have been given for the move from the original timetable in the draft regulations of July 2007.

This is one aspect that the Minister might like to resolve tonight, since it is clear from the information that I have been given that every other European country is giving the two-year transition period to 31 December 2009. What is the rush? Why cannot these regulations be implemented in a businesslike and careful way, allowing time for new products to contain the right information and allowing those products already produced and either on the market or ready for market to retain the current labelling until then? Of course it is important that the differential between infant formula and follow-on formula can be clearly demonstrated, but I fail to understand why that should be done against a background of extreme urgency and incomplete guidance.

The Minister will also know that there is concern about the bias, which has partly been demonstrated today, against the advertising of products and the fact that guidance notes go beyond the restrictions in the 2007 regulations, which would have limited advertising of infant formula to scientific publications. However, under the new guidance, this is now restricted to where such publications report the results of original scientific research and reviews. That is a very limited range. As the Advertising Association makes clear in its briefing to me, this removes the right to advertise infant formula in professional journals, which are largely accessed by healthcare professionals.

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I appreciate that there are those who believe that there should be no advertising of these products. Most other speakers tonight have supported that view. Like others, I have been briefed by Baby Milk Action, but to be realistic people need to know that there are formula products available and they need to have good information about their use. There is no doubt that there are many mothers in this country and elsewhere who are either unable or unwilling to breastfeed. While it is accepted that breastfeeding gives a baby an excellent start in life, such mothers should not be intimidated into believing that using a formula product is going to give their babies a lesser chance in life.

I know from recent experience the great upset that there can be to a new mother who is unable to satisfy the appetite of her baby by breastfeeding, when formula products are either withheld—this does happen—because breastfeeding is perceived to be the only feed that should be given, or else are not available. The sounds of distress from an underfed baby are not helpful to it or to its beleaguered parents. There is more concern in the directive to prevent the promotion of formula products than to present them as a reasonable alternative. I am afraid that that is my view rather than that of the professionals. However, professionals need to be informed, and well balanced and controlled advertising in their own publications seems to be a straightforward way of doing this. Clearly, these matters are still unresolved in relation to the new regulations.

The Merits of Statutory Instruments Committee draws attention to Baby Milk Action’s concerns that the question of labelling giving details of the minimum temperature of water used for mixing the formula does not seem to have been resolved either. It would seem logical that the manufacturers should be involved in discussions as to whether and why this is necessary now, before they have to introduce new labelling, rather than in 12 months’ time, or 12 months after the FSA’s independent review. That is another good reason for giving a proper transition time.

From those points alone, there seems ample reason to suggest that the regulations are premature. The Government should give their own consultation on the guidelines time to be completed and time for responses to be carefully considered. The transitional timetable that is being implemented in all other countries should be available in this country.

8 pm

Baroness Thornton: My Lords, I thank the noble Baroness, Lady Finlay, for introducing this important debate on the merits of the new Infant Formula and Follow-on Formula (England) Regulations 2007, laid before the House in December, and I thank other noble Lords for their contributions.

It is with trepidation that I begin these remarks, given the reputation and expertise that that noble Baroness brings to your Lordships’ House and I pay tribute to her fantastic work in championing health issues. I agree with the eloquent points the noble Baroness and other noble Lords made about the importance of supporting, protecting and promoting breastfeeding in the interests of giving all infants the best start in life.

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The Government take infant health extremely seriously and are determined to act to promote and protect breastfeeding in the interests of giving all infants the best start in life and to make sure that mothers are in the best position possible to make informed decisions about feeding choices for their babies. The Government’s central policy—and their challenge, as other noble Lords outlined—is to encourage, protect and support breastfeeding. We have achieved an increase in breastfeeding initiation rates in the UK from 69 per cent in 2000 to 76 per cent in 2005—but there is a great deal more to do. The Government are continuing to create a supportive environment for breastfeeding, through ongoing work and campaigns. I am sure that noble Lords will be pleased to learn that the National Breastfeeding Helpline was launched on 15 February.

The Government are working in partnership with concerned organisations and the helpline to give new mums practical support and encourage them to breastfeed longer. Many noble Lords made that point. All calls to the line in the UK will be charged at local rates and we hope that this will be of particular benefit to mothers from disadvantaged groups and young mothers who will be able to access specialist advice at the time of need and help them to continue breastfeeding.

Equally, the Government have a duty to ensure that adequate controls are in place to protect bottle-fed babies and mothers who do not choose to or are unable to breastfeed. For those mothers, the Government want to ensure that they receive the best advice that they can so that they can choose what is best for their babies without other people interfering in those decisions or causing confusion. That is why the Government have put in place stricter controls on the promotion, labelling and composition of infant formula and follow-on formula.

The Government’s priority is to ensure that infant and follow-on formulas are clearly labelled so that parents and carers who wish to use these products can do so in the correct way. This is what these regulations set out to do and is why they are important and consequently the subject of much interest and debate. This code is for the benefit of all mothers. It is there to protect bottle-feeding mothers as well as breastfeeding mothers, because it is about the provision of wholly independent and evidence-based information.

The Government support the International Code of Marketing of Breastmilk Substitutes and subsequent amending World Health Assembly resolutions. Where the code places responsibility on governments, we have acted to enshrine in our policies the principles it sets out. The World Health Organisation’s recommendations are very wide-ranging in their scope, with some relating to detailed labelling provisions, others to the functioning of the healthcare system and others still to the corporate responsibilities of manufacturers. The regulations address the recommendations relating to the composition, labelling and advertising of formula, and implement EU directive 2006/141/EC on infant formula and follow-on formula. This new directive was informed, in part, by the WHO recommendations and provides increased consumer

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protection when compared to the previous legislation. In addition, the Government in 2003 implemented the WHO guidance to recommend exclusive breastfeeding for the first six months of life, with continued breastfeeding alongside the introduction of complementary feeding, and will be adopting the new WHO growth standards as recommended by the Scientific Advisory Committee on Nutrition and the Royal College of Paediatrics and Child Health.

I recognise that several NGOs, including the Baby Milk Action Group, the National Childbirth Trust, the Breastfeeding Manifesto Coalition and others are calling for further regulations to ban all advertising and promotion of breastmilk substitutes, including follow-on formula, and want the Government to implement the entire WHO code on the marketing of breastmilk substitutes. The Government are determined to take tough action to stamp out marketing, promotion and advertising practices which undermine breastfeeding directly and indirectly. Indeed, this is evidenced by the Government’s Choosing Health White Paper, which made a commitment to review the relevant provisions of the Infant Formula and Follow-on Formula Regulations 1995, with a view further to restrict the promotion of infant formula. I hope that the noble Baroness, Lady Barker, will accept this reassurance.

I assure noble Lords that the Government’s new controls are as tight as possible within the constraints of the EU law and have been specifically drafted to address loopholes in the 1995 regulations which allow manufacturers to market and promote their products in ways that do not enable UK consumers clearly to differentiate between infant formula and follow-on formula when purchasing products, and which bypasses restrictions on advertising of infant formula by labelling and advertising follow-on formula in such a way that it is often difficult to distinguish the practice from advertising for infant formula. This is unacceptable and the Government are determined to take tough action to remove this confusion. In this way the new directive and regulations provide for increased consumer protection compared with the previous infant formula legislation.

The key changes include: updated rules on the composition of all types of formula; tighter rules on the labelling of all types of formula; tighter restrictions relating to the marketing and promotion of infant formula; requirements for companies to label, present and advertise infant formula and follow-on formula in such a way as to avoid confusion between them in the mind of the consumer; a requirement for companies to make clear on the product packaging that follow-on formula should be used only by infants from six months of age; restrictions on the number of health and nutrition claims that can be used on infant formula; and the introduction of national notification requirements, which allow European Union countries to monitor the marketing of new infant formula more effectively.

The Government will also be introducing robust guidance for industry and enforcement authorities on how correctly to apply the new law. The guidance will

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make it very clear that advertising practice for follow-on formula must change and formula for older babies must be clearly labelled and advertised such that it is clearly distinguishable from infant formula. This is necessary because advertisements for follow-on formula, which may include presentation of the packaged and labelled product, have the potential to be seen as adverts for infant formula, a practice which is specifically prohibited so as not to undermine government advice that babies should be exclusively breastfed for the first six months.

These tough new measures will give effect to the principles and aims of the WHO code on the marketing of breastmilk substitutes and will protect breastfeeding by substantially restricting advertising, requiring proper labelling and prohibiting the donation of any informational or educational material by formula manufacturers unless it has been specifically authorised by the Government, prohibiting the advertising of infant formula to the public, and prohibiting any follow-on formula advertising which promotes infant formula. I hope that this will go some way to meeting the noble Baroness’s points.

In addition, the Government have given a further and key commitment to provide an independently chaired review of the new controls. That point has been recognised by other noble Lords. If after time it is found that the new arrangements are not working effectively or delivering the necessary level of protection for babies, because the arrangements have been circumvented or because new methods of promotion emerge, the Government will respond proportionately and consider taking further legislative action.

Lord Avebury: My Lords, how can the Government take further legislative action when the noble Baroness has told us that the regulations are as tightly drawn as they possibly could have been under the directive?

Baroness Thornton: My Lords, the point is that the independent review after the controls are in place will allow us to assess whether or not this is working. If it is not working, as my honourable friend in another place said, the Government are determined to take action and to make this work. We are confident that this package is effective, proportionate and evidence-based, and, together with the independently chaired review, is a big step forwards in the protection of mothers and babies. As the noble Baroness stated, the Infant and Dietetic Foods Association is challenging the new regulations in England and Wales, which we wanted to come into force on 11 January 2008.

On the questions raised by the noble Baroness, Lady Hanham, the guidance is not being rushed in. The guidance that has been brought forward has been discussed and the directive was published in 2006. The industry has been aware since that time of the labelling changes that will be required. The Government believe that that is time enough for it to have taken action and time enough for it to bring forward the necessary changes.

We are very disappointed that the new regulations have been challenged. As noble Lords have said, they

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have been suspended by the High Court until the hearing of the substantive application for judicial review which will take place by the end of February. Similar implementing regulations in Scotland and Northern Ireland are also the subject of legal challenge in those jurisdictions. The court in Scotland has declined to stay the regulations on an interim basis and the court in Northern Ireland has granted a temporary stay. The case in Scotland will be heard tomorrow.

Clearly, we are disappointed by the IDFA’s decision to bring proceedings and the Government are fighting the case because they consider that they have implemented the transitional provisions in line with the obligations of the directive. The Government’s intention and policy objective were clear before the new directive was published in 2006. The industry has been aware since that time of the labelling changes that it will be required to make. The Government are committed to those regulations and will ensure that they apply as soon as possible, taking into account the outcome of the court proceedings.

In conclusion, I reiterate that the Government’s priority is to ensure that infant formula and follow-on formula are clearly labelled so that parents and carers who wish to use those products can do so correctly. I urge the noble Baroness to withdraw her Motion.

Baroness Finlay of Llandaff: My Lords, I am most grateful to all noble Lords who have spoken in the debate. I am particularly grateful to the noble Lord, Lord Avebury, for drawing our attention to the international code that goes back to 1981 and to the noble Baroness, Lady Barker, for placing this debate in the context of European debates and legislation. The noble Baroness, Lady Hanham, made some very important points which have been raised by the formula companies themselves. She also drew our attention to the fact that breastfeeding for some women is very difficult and that they need support.

With great pleasure we heard from the Minister about the introduction of the national breastfeeding helpline, which was introduced last week. I think it will be an extremely important source of help and support for women who are trying to establish breastfeeding.

I am also glad to hear that there will be an independent review and that the Government intend to take action on it and the background to the timeframe for the introduction of the current regulations, which are currently subject to judicial review. With regard to that background and to the very helpful comments from the Minister, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

The Parliamentary Under-Secretary of State, Department for Innovation, Universities and Skills (Baroness Morgan of Drefelin): My Lords, I beg to move that the House do adjourn during pleasure until 8.29 pm.

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

[The Sitting was suspended from 8.13 to 8.29 pm.]

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Children and Young Persons Bill [HL]

House again in Committee (on Recommitment) on Clause 11.

Baroness Morris of Bolton moved Amendment No. 20:

(a) having minimal connection to the local authority in question;(b) having not worked for the local authority in question in the last ten years;(c) being previously unconnected to the particular child in question; and(d) having no conflict of interest.”

The noble Baroness said: Amendment No. 20 places a duty on local authorities to ensure that independent reviewing officers are sufficiently independent and defines this as: having minimal connection to the local authority; not having worked for the local authority for 10 years; being unconnected to the child in question; and having no conflict of interest. However, I acknowledge that 10 years may be too long, and am therefore willing to have a debate on the length of time deemed necessary to secure the amendment’s objectives.

We welcome the idea of extending the responsibilities of independent reviewing officers but seek with this amendment to ensure their effectiveness by making them truly independent and not just independent of the management of the case, which is the current position under the Review of Children’s Cases (Amendment) (England) Regulations 2004.

This system will work only if everyone is satisfied that the reviews conducted are impartial and come from a source unfettered by any hint of subjectivity. The Bill as it stands does not, in our opinion, have such provision. For example, in his extensive letter of 23 January, the Minister said:

I can see the support bit working but to challenge a colleague is a wholly different matter. Likewise, what do IROs do if, when reviewing a child’s case, they are aware of budget restraints or know that their department is stretched to the limit? I am not for one moment suggesting that they will not do their best by that child but I am afraid that it raises the question of conflict of interest.

In his letter, the Minister pointed out that it is up to local authorities to decide whether to appoint IROs who are their employees, whether to contract with an agency or whether to make arrangements with another authority to swap cases for review purposes. As this will be an important driver to effect the much-needed change that we are all looking for, and

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to help us to ascertain how it works in practice, can the Minister tell us how many authorities undertake this review themselves?

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