Show-cause notice to Nestle arm triggers debate on Infant Milk Substitutes Act

Maitri Porecha New Delhi | Updated on January 20, 2020

File Photo   -  Reuters

After the Government of Madhya Pradesh served a show-cause notice to Nestle’s arm to explain the company’s participation in a nutrition conference organised by Apollo Hospitals in Indore, many eyebrows were raised for singling out one company.

Ministry of Health and Family Welfare had told Madhya Pradesh to initiate action against Nestle Health Science for being in alleged violation of the Infant Milk Substitutes (IMS) Act.

Instances of most baby food companies sponsoring conferences are rife, and the mechanism for implementing the IMS Act are ad-hoc. Serving show-cause notice on a case-to-case basis and the absence of enforcing the law are half-hearted efforts by the regulator. There has been a long-pending demand to appoint district level officers who can report violations of the IMS Act to the Centre. But till date, there is no mechanism in place to appoint and train such officers. The lack of this mechanism is clearly worrisome for the future of the newborns and their nutrition, in India.

And then there is the dilemma of interpreting the law.

The company, in it’s defense said that they were promoting adult nutrition products in the conference, not baby food, and hence, they were not culpable of violation of the Act. Here, both the government and the company’s interpretations of the IMS Act vary, and hence, it becomes pertinent to read Section 9 (1) and Section 9 (2) of the Act.

Section 9 (1) states, “No person who produces, supplies, distributes or sells infant milk substitutes or infant foods shall offer or give, directly or indirectly, any financial inducements or gifts to a health worker or to any member of his family for the purpose of promoting the use of such substitutes or bottles or food.”

Section 9 (2) states, “No producer, supplier or distributor referred to in subsection (1) shall offer or give any contribution or pecuniary benefit to a health worker or any association of health workers, including funding of seminar, meeting, conferences, educational course, contest, fellowship, research work or sponsorship.”

The Act also does not make it clear if Section 9 (1) and Section 9 (2) can be read mutually exclusive of each other or not.

Prima facie, Nestle Health Science has not lived up to Section 9 (2) of the Act. Section 9 (2) does not clarify if those entities that deal in baby foods should not fund any seminar, meeting, and conference, among others, if they are not baby-food related; for example, adult nutrition. While Section 9 (1) clarifies that financial inducements should not be given for the purpose of promoting the use of infant milk substitutes or bottles or food, Section 9 (2) which bans funding of seminars and conferences, among others, is silent on the ‘purpose’.

Nestle Health Science claimed they were not in violation of Section 9 of the IMS Act, as they read Section 9 (1) and Section 9 (2) as not mutually exclusive of each other, while the government interpreted the sections as mutually exclusive of each other.

According to the current wording of the law, the government is clear that baby food companies cannot sponsor even a mildly related event.

After the MoHFW planned action according to the Act, many on social media termed it as an act of ‘overreach’ by the government; others said that the law left a grey area which needs to be addressed.

And while there is a law in place to address violations related to Infant Milk Substitutes, there needs to be a tighter law to check sponsorship of pharmaceutical companies in medical conferences, which is perceived in some cases as ‘bribing’ of doctors for pushing corporate agenda.

It is not for the first time that baby food companies have been at loggerheads with the government over violation of IMS Act, and in the past the violations have been more glaring and in the face. Last year, the Indian Council of Medical Research (ICMR) called for an end to Nestle-sponsored clinical studies, involving feeding of new born infants milk substitutes, which had been registered with ICMR in the first place, after it was brought to light by the MoHFW that they were in violation of the IMS Act. ICMR is an arm of MoHFW. Many baby food companies also came under scrutiny after a study pointed out that India had become a dumping ground for genetically-modified baby food, which did not bear proper labelling required under the Food and Standards Safety Authority of India (FSSAI) declaration requirements. Sadly, mothers who deliver in hospitals and should have the first say in how their babies should be fed, become increasingly helpless in light of such controversy. And so, the IMS Act becomes important to protect the rights of babies and their mothers.

So, 33-year-old mother Jincy Varghese started an online petition to challenge the pressures new mothers face in hospitals from rude doctors and nurses, to push them towards feeding babies with powder milk instead of breast-milk soon after they are born.

The question however is: can the Act be applied on adult nutrition products sold by baby food companies and being promoted in a corporate hospital which also looks after patients, including babies and adults. On this, the government and the corporate world are clearly not seeing eye-to-eye.

Published on January 20, 2020

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