Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 173034             October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, 
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR.
DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled
benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and
go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of
the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded
as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of
said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article
112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by
the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24
of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and children,
are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR. 3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June
19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
 2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2.2 Whether pertinent international agreements 1 entered into by the Philippines are part
of the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef
"2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals, 4 to wit:
The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its
members. An association has standing to file suit for its workers despite its lack of
direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members
are in every practical sense identical. x x x The respondent [association] is but the
medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled
that an association has the legal personality to represent its members because the results of the
case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government
and any of its agencies, the medical professions and the general public." 8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by the
RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the
entire industry, would be remiss in its duties if it fails to act on governmental action that would
affect any of its industry members, no matter how few or numerous they are. Hence, petitioner,
whose legal identity is deemed fused with its members, should be considered as a real party-in-
interest which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents
are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments 10 regarding infant
and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1)
The United Nations Convention on the Rights of the Child; (2) The International Covenant on
Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps must be taken by State
Parties to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women are provided
with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes
are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law
either bytransformation or incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. 12
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the members of the Senate."
Thus, treaties or conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. 13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least
two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987
Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this
point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and approved
by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary
international law which are binding on all states, 17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity, 18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted
principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source
of international law because they have the "character of jus rationale" and are "valid
through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of
international law because they are "basic to legal systems generally" and hence part of the
jus gentium. These principles, he believes, are established by a process of reasoning based on
the common identity of all legal systems. If there should be doubt or disagreement, one must
look to state practice and determine whether the municipal law principle provides a just and
acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of
states followed by them from a sense of legal obligation [opinio juris]."
(Restatement) This statement contains the two basic elements of custom:
the material factor, that is, how states behave, and the psychological orsubjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it only as a matter
of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory,
is what makes practice an international rule. Without it, practice is not
law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system. 23
WHA Resolutions have not been embodied in any local legislation. Have they attained the status
of customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with
the United Nations (UN) by virtue of Article 57, 24 in relation to Article 6325 of the UN Charter.
Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
WHO,26 and has the power to adopt regulations concerning "advertising and labeling of
biological, pharmaceutical and similar products moving in international commerce," 27 and to
"make recommendations to members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite
different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote of
the Health Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when accepted by it in
accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action relative to
the acceptance of such convention or agreement. Each Member shall notify the
Director-General of the action taken, and if it does not accept such convention or
agreement within the time limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to make an annual report to
the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of
biological, pharmaceutical and similar products moving in international commerce; (e)
 advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly
except for such Members as may notify the Director-General of rejection or reservations
within the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into
force for members,in the same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they "carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of
the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed
to the present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-
seventh session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a
regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the
WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally non-
binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted
most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months,
continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles
and practices that influence state behavior. 31
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. 32 It is, however, an expression
of non-binding norms, principles, and practices that influence state behavior. 33 Certain
declarations and resolutions of the UN General Assembly fall under this category. 34 The most
notable is the UN Declaration of Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v.
Director of Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel Management, Ltd. v.
Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN
with the mandate to promote and protect intellectual property worldwide, has resorted to soft law
as a rapid means of norm creation, in order "to reflect and respond to the changing needs and
demands of its constituents." 39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture Organization (in the
form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on
WHO member states, it provides an excellent example of the power of "soft law" in
international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices
that influence state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international governance for
public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the
political groundwork for improved international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative duty to cooperate fully with
other countries and with WHO in connection with infectious disease surveillance and
response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak
has taught the lesson that participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if this warning is heeded,
the "soft law" in the SARS and IHR Resolution could inform the development of general
and consistent state practice on infectious disease surveillance and outbreak response,
perhaps crystallizing eventually into customary international law on infectious disease
prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by
WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201
on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments
broad powers to close down schools/establishments, conduct health surveillance and monitoring,
and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any evidence to prove
that the WHA Resolutions, although signed by most of the member states, were in fact enforced
or practiced by at least a majority of the member states; neither have respondents proven that
any compliance by member states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in
the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the
framework of the government's general policies and plans, and issue orders and regulations
concerning the implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as
part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months;
(3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O.
No. 2005-0014 is it declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically be
equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising
and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will
regulate said advertising and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the constitutionally authorized
branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
can be validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with
those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended
its coverage to "young children" or those from ages two years old and beyond:
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 2. Purpose – These Revised Rules and
adequate nutrition for infants is provided, there is Regulations are hereby promulgated to ensure
a need to protect and promote breastfeeding and the provision of safe and adequate nutrition for
to inform the public about the proper use of infants and young children by the promotion,
breastmilk substitutes and supplements and protection and support of breastfeeding and by
related products through adequate, consistent ensuring the proper use of breastmilk substitutes,
and objective information and appropriate breastmilk supplements and related products
regulation of the marketing and distribution of the when these are medically indicated and only
said substitutes, supplements and related when necessary, on the basis of adequate
products; information and through appropriate marketing
SECTION 4(e). "Infant" means a person falling and distribution.
within the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person
from the age of more than twelve (12) months up
to the age of three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute
for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for
infants from 0-6 months" and declares that "there is no substitute nor replacement for
breastmilk":
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles – The
adequate nutrition for infants is provided, there following are the underlying principles from
is a need to protect and promote breastfeeding which the revised rules and regulations are
and to inform the public about the proper use of premised upon:
breastmilk substitutes and supplements and a. Exclusive breastfeeding is for infants from 0
related products through adequate, consistent to six (6) months.
and objective information and appropriate b. There is no substitute or replacement for
regulation of the marketing and distribution of breastmilk.
the said substitutes, supplements and related
products;
3. The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities for
breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids
the use of health and nutritional claims. Section 13 of the RIRR, which provides for a
"total effect" in the promotion of products within the scope of the Code, is vague:
MILK CODE RIRR
SECTION 6. The General Public and Section 4. Declaration of Principles – The
Mothers. – following are the underlying principles from
(a) No advertising, promotion or other which the revised rules and regulations are
marketing materials, whether written, audio or premised upon:
visual, for products within the scope of this x x x x
Code shall be printed, published, distributed, f. Advertising, promotions, or sponsor-ships of
exhibited and broadcast unless such materials infant formula, breastmilk substitutes and other
are duly authorized and approved by an inter- related products are prohibited.
agency committee created herein pursuant to Section 11. Prohibition – No advertising,
the applicable standards provided for in this promotions, sponsorships, or marketing
Code. materials and activities for breastmilk
substitutes intended for infants and young
children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give
subliminal messages or impressions that
undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related
products covered within the scope of this Code.
Section 13. "Total Effect" - Promotion of
products within the scope of this Code must be
objective and should not equate or make the
product appear to be as good or equal to
breastmilk or breastfeeding in the advertising
concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that
buying their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner
bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in advertising,
promotional and marketing materials:
a. Texts, pictures, illustrations or information
which discourage or tend to undermine the
benefits or superiority of breastfeeding or which
idealize the use of breastmilk substitutes and
milk supplements. In this connection, no
pictures of babies and children together with
their mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall be
used in any advertisements for infant formula
and breastmilk supplements;
b. The term "humanized," "maternalized,"
"close to mother's milk" or similar words in
describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition claims for
products within the scope of the Code are
absolutely prohibited. For this purpose, any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant and
young child and other like phrases shall not be
allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE RIRR
SECTION 10. Containers/Label. – Section 26. Content – Each container/label
(a) Containers and/or labels shall be designed shall contain such message, in both Filipino
to provide the necessary information about the and English languages, and which message
appropriate use of the products, and in such a cannot be readily separated therefrom, relative
way as not to discourage breastfeeding. the following points:
(b) Each container shall have a clear, (a) The words or phrase "Important Notice" or
conspicuous and easily readable and "Government Warning" or their equivalent;
understandable message in Pilipino or English (b) A statement of the superiority of
printed on it, or on a label, which message can breastfeeding;
not readily become separated from it, and (c) A statement that there is no substitute for
which shall include the following points: breastmilk;
(i) the words "Important Notice" or their (d) A statement that the product shall be used
equivalent; only on the advice of a health worker as to the
(ii) a statement of the superiority of need for its use and the proper methods of use;
breastfeeding; (e) Instructions for appropriate prepara-tion,
(iii) a statement that the product shall be used and a warning against the health hazards of
only on the advice of a health worker as to the inappropriate preparation; and
need for its use and the proper methods of use; (f) The health hazards of unnecessary or
and improper use of infant formula and other
(iv) instructions for appropriate preparation, related products including information that
and a warning against the health hazards of powdered infant formula may contain
inappropriate preparation. pathogenic microorganisms and must be
prepared and used appropriately.
5. The Milk Code allows dissemination of information on infant formula to health
professionals; the RIRR totally prohibits such activity:
MILK CODE RIRR
SECTION 7. Health Care System. – Section 22. No manufacturer, distributor, or
(b) No facility of the health care system shall representatives of products covered by the
be used for the purpose of promoting infant Code shall be allowed to conduct or be
formula or other products within the scope of involved in any activity on breastfeeding
this Code. This Code does not, however, promotion, education and production of
preclude the dissemination of information to Information, Education and Communication
health professionals as provided in Section (IEC) materials on breastfeeding, holding of or
8(b). participating as speakers in classes or
SECTION 8. Health Workers. - seminars for women and children activities and
(b) Information provided by manufacturers and to avoid the use of these venues to market
distributors to health professionals regarding their brands or company names.
products within the scope of this Code shall be SECTION 16. All health and nutrition claims for
restricted to scientific and factual matters and products within the scope of the Code are
such information shall not imply or create a absolutely prohibited. For this purpose, any
belief that bottle-feeding is equivalent or phrase or words that connotes to increase
superior to breastfeeding. It shall also include emotional, intellectual abilities of the infant and
the information specified in Section 5(b). young child and other like phrases shall not be
allowed.
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.
MILK CODE RIRR
SECTION 8. Health Workers – Section 4. Declaration of Principles –
(e) Manufacturers and distributors of products The following are the underlying principles from
within the scope of this Code may assist in the which the revised rules and regulations are
research, scholarships and continuing premised upon:
education, of health professionals, in i. Milk companies, and their
accordance with the rules and regulations representatives,should not form part of any
 promulgated by the Ministry of Health. policymaking body or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children activitiesand
to avoid the use of these venues to market
their brands or company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to promote,
protect and support breastfeeding and
appropriate infant and young child feeding.
Part of this responsibility is to continuously
update their knowledge and skills on
breastfeeding. No assistance, support, logistics
or training from milk companies shall be
permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE RIRR
SECTION 6. The General Public and Section 51. Donations Within the Scope of
Mothers. – This Code - Donations of products, materials,
(f) Nothing herein contained shall prevent defined and covered under the Milk Code and
donations from manufacturers and distributors these implementing rules and regulations, shall
of products within the scope of this Code upon be strictly prohibited.
request by or with the approval of the Ministry Section 52. Other Donations By Milk
of Health. Companies Not Covered by this Code. -
Donations of products, equipments, and the
like, not otherwise falling within the scope of
this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency Committee
(IAC), which shall determine whether such
donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE RIRR
  Section 46. Administrative Sanctions. –The
following administrative sanctions shall be
imposed upon any person, juridical or natural,
found to have violated the provisions of the
Code and its implementing Rules and
Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine of a
minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos, depending
on the gravity and extent of the violation,
including the recall of the offending product;
c) 3rd violation – Administrative Fine of a
minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00)
 Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the recall
of the offending product, and suspension of the
Certificate of Product Registration (CPR);
d) 4th violation –Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00)
Thousand Pesos, depending on the gravity and
extent of the violation; and in addition thereto,
the recall of the product, revocation of the
CPR, suspension of the License to Operate
(LTO) for one year;
e) 5th and succeeding repeated violations –
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR,
revocation of the License to Operate (LTO) of
the company concerned, including the
blacklisting of the company to be furnished the
Department of Budget and Management
(DBM) and the Department of Trade and
Industry (DTI);
f) An additional penalty of Two Thou-sand Five
Hundred (P2,500.00) Pesos per day shall be
made for every day the violation continues
after having received the order from the IAC or
other such appropriate body, notifying and
penalizing the company for the infraction.
For purposes of determining whether or not
there is "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, are
deemed to be violations of the concerned milk
company and shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12
months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the marketing, and practices
related thereto, of the following products: breastmilk substitutes, including infant formula;
other milk products, foods and beverages, including bottle-fed complementary foods,
when marketed or otherwise represented to be suitable, with or without modification, for
use as a partial or total replacement of breastmilk; feeding bottles and teats. It also
applies to their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the  kind
of product being marketed to the public. The law treats infant formula, bottle-fed complementary
food, and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted
to their physiological characteristics"; while under Section 4(b), bottle-fed complementary food
refers to "any food, whether manufactured or locally prepared, suitable as a complement to
breastmilk or infant formula, when either becomes insufficient to satisfy the nutritional
requirements of the infant." An infant under Section 4(e) is a person falling within the age bracket
0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is
sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any
food being marketed or otherwise presented as a partial or total replacement for breastmilk,
whether or not suitable for that purpose."This section conspicuously lacks reference to any
particular age-group of children. Hence, the provision of the Milk Code cannot be
considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes
may also be intended for young children more than 12 months of age. Therefore, by regulating
breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of
children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided
in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be
used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize
that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases
in the Rule should not be studied as detached and isolated expressions, but the whole and every
part thereof must be considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the
use of breastmilk substitutes is proper if based on complete and updated information."
Section 8 of the RIRR also states that information and educational materials should include
information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3 45 and 446 together as they are interlinked
with each other.
To resolve the question of whether the labeling requirements and advertising regulations under
the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as defined in general under the 1987 Administrative Code, 47 and
as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it. .48 However, health information, particularly
advertising materials on apparently non-toxic products like breastmilk substitutes and
supplements, is a relatively new area for regulation by the DOH. 49
As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health information
was already within the ambit of the regulatory powers of the predecessor of DOH. 51 Section 938
thereof charged it with the duty to protect the health of the people, and vested it with such
powers as "(g) the dissemination of hygienic information among the people and especially the
inculcation of knowledge as to the proper care of infants and the methods of preventing and
combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and
promote the right to health of the people and instill health consciousness among them."52 To
that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate
health information and educate the population on important health, medical and environmental
matters which have health implications." 53
When it comes to information regarding nutrition of infants and young children, however, the Milk
Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power
to ensure that there is adequate, consistent and objective information on breastfeeding and use
of breastmilk substitutes, supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
 (b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and
objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is provided
on infant feeding, for use by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis-à-visbreastmilk substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial
bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula,
they shall include the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information
about the appropriate use of the products, and in such a way as not to discourage
breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code 54 to ensure that
the information that would reach pregnant women, mothers of infants, and health professionals
and workers in the health care system is restricted to scientific and factual matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control
does not encompass the power to absolutely prohibit the advertising, marketing, and promotion
of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by
the Code:
 a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to contribute to the
provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use of breastmilk
substitutes and breastmilk supplements when these are necessary, on the basis
of adequate information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to
review and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding
labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to breastmilk;
and b) that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Section 16 57 of the RIRR prohibits
all health and nutrition claims for products within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk
Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd situation in which milk companies
and distributors are forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers and labels of their
products the exact opposite message. That askewed interpretation of the Milk Code is precisely
what Section 5(a) thereof seeks to avoid by mandating that all information regarding
breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the
government control over planning, provision, design, and dissemination of information on infant
feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the
Milk Code and deterring circumvention of the protection and promotion of breastfeeding as
embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section
5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: x x x (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods
or feeding methods; and, in particular, the health hazards of unnecessary or
improper use of infant formula and other breastmilk substitutes. Such materials
shall not use any picture or text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof.
The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely
adds a fair warning about the likelihood of pathogenic microorganisms being present in infant
formula and other related products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is prone
to contaminations and there is as yet no technology that allows production of powdered infant
formula that eliminates all forms of contamination. 62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes
and supplements and related products cannot be questioned. It is its intervention into the area of
advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly authorized and approved by an
inter-agency committee created herein pursuant to the applicable standards provided for
in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of
the following members is hereby created:
Minister of Health ------------------- Chairman

Minister of Trade and Industry ------------------- Member

Minister of Justice ------------------- Member

Minister of Social Services and Development ------------------- Member

The members may designate their duly authorized representative to every meeting of the
Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing
materials, whether written, audio or visual, on products within the scope of this
Code;
 (2) To approve or disapprove, delete objectionable portions from and prohibit the
printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its
powers and functions as well as the performance of its duties and responsibilities;
and
(4) To promulgate such rules and regulations as are necessary or proper
for the implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young children
up to twenty-four (24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes and/or replacements, as well as related
products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and
other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and
marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section
6 thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to
dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not
actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because
Section 11 while it states and it is entitled prohibition it states that no advertising,
promotion, sponsorship or marketing materials and activities for breast milk substitutes
intended for infants and young children up to 24 months shall be allowed because this is
the standard they tend to convey or give subliminal messages or impression undermine
that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and
evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the
provision on the Inter-Agency Committee that processes and evaluates because there
may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will undermine
the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
 Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing
of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total
effect rule as well as the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban.
Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that
can evaluate some advertising and promotional materials, subject to the standards that
we have stated earlier, which are- they should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding
milk substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency
Committee can allow if the advertising and promotions will not undermine breastmilk and
breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the
approval or rejection of advertising, promotional, or other marketing materials under Section
12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides
that the rules and regulations must be "pursuant to the applicable standards provided for in this
Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk
of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial
bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula, they
shall include the social and financial implications of its use; the health hazards of
 inappropriate foods of feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes.
xxxx
SECTION 8. Health Workers. –
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters and such information shall not imply or create a belief that bottle feeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).
xxxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information
about the appropriate use of the products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label, which message
can not readily become separated from it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health
worker as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section
5(a) of the Milk Code states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is provided
on infant feeding, for use by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR
which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must
be objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other
such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion,
and marketing. Through that single provision, the DOH exercises control over the information
content of advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk
substitutes, supplements and other related products. It also sets a viable standard against which
the IAC may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest
and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also
finds that there is no inconsistency between the provisions of the Milk Code and the RIRR.
Section 7(b)66 of the Milk Code, in relation to Section 8(b) 67 of the same Code, allows
dissemination of information to health professionals but suchinformation is restricted to
scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is the
involvement of the manufacturer and distributor of the products covered by the Code in activities
for the promotion, education and production of Information, Education and Communication (IEC)
materials regarding breastfeeding that are intended forwomen and children. Said provision
cannot be construed to encompass even the dissemination of information to health
professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e) 68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health
professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also
assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in
any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form
part of any policymaking body or entity in relation to the advancement of breastfeeding. The
Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section
12(b) of the Milk Code, it is the DOH which shall be principally responsible for the
implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to
decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding.
Therefore, the RIRR's prohibition on milk companies’ participation in any policymaking body in
relation to the advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health professionals. Section 2270 of
the RIRR does not pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's argument against
this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the
RIRR provide thatresearch assistance for health workers and researchers may be allowed
upon approval of an ethics committee, and with certain disclosure requirements imposed
on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept
the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research
done or extent of assistance given by milk companies are completely in accord with the Milk
Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the prerogative
given to the DOH under Section 8(e) 74 of the Milk Code, which provides that manufacturers and
distributors of breastmilk substitutes may assist in researches, scholarships and the continuing
education, of health professionals in accordance with the rules and regulations promulgated by
the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk
Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and
distributors of breastmilk substitutesupon the request or with the approval of the DOH. The
law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion
of the DOH whether to request or accept such donations. The DOH then appropriately exercised
its discretion through Section 5175 of the RIRR which sets forth its policy not to request or
approve donations from manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted or refused. As reasoned out by
respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no
person or entity can be forced to accept a donation. There is, therefore, no real inconsistency
between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing
donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found
in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc. 76 is misplaced. The
glaring difference in said case and the present case before the Court is that, in the  Civil
Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the
law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics
Board (CAB) was granted by the same law the power to review on appeal the order or decision
of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such
fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative
fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court
upheld the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission
of prohibited acts. The Court found that nothing in the circular contravened the law because the
DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH
the authority to fix or impose administrative fines. Thus, without any express grant of power to fix
or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the
DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the
RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of
the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and
other pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for
the penalties to be imposed on violators of the provision of the Milk Code or the rules and
regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules and regulations
issued pursuant to this Code shall, upon conviction, be punished by a penalty of two
(2) months to one (1) year imprisonment or a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the
offense be committed by a juridical person, the chairman of the Board of Directors, the
president, general manager, or the partners and/or the persons directly responsible
therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of their
profession or occupation, or for the pursuit of their business, may, upon recommendation
of the Ministry of Health, be suspended or revoked in the event of repeated violations of
this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or
parts thereof inconsistent with these revised rules and implementing regulations are
hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and
rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or
the power to make rules and regulations which results in delegated legislation that is within the
confines of the granting statute and the Constitution, and subject to the doctrine of non-
delegability and separability of powers. 78 Such express grant of rule-making power necessarily
includes the power to amend, revise, alter, or repeal the same. 79 This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which they are to
implement the provisions of a law, 80 in order to make it more responsive to the times. Hence, it is
a standard provision in administrative rules that prior issuances of administrative agencies that
are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents
is unnecessary and oppressive, and is offensive to the due process clause of the
Constitution, insofar as the same is in restraint of trade and because a provision
therein is inadequate to provide the public with a comprehensible basis to determine
whether or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions
that suppress the trade of milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests. 90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held
thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority,despite the fact that "our present Constitution enshrines free
enterprise as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare." There can be no
question that the unregulated use or proliferation of pesticides would be hazardous to our
environment. Thus, in the aforecited case, the Court declared that "free enterprise does
not call for removal of ‘protective regulations’." x x x It must be clearly explained
and proven by competent evidence just exactly how such protective regulation
would result in the restraint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in
any policymaking body (Section 4(i)), classes and seminars for women and children (Section 22);
the giving of assistance, support and logistics or training (Section 32); and the giving of donations
(Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the trade of breastmilk substitutes.
Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are
unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor
of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature, including their representatives
who promote or otherwise advance their commercial interests in marketing those
products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the
wholesale or retail level a product within the scope of this Code. A "primary distributor" is
a manufacturer's sales agent, representative, national distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent or
and entity controlled by or under contract with it) of manufacturing a products within the
scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the
entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR
also enumerated in Section 5(w) the products manufactured or distributed by an entity that would
qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products
within the scope of this Code." Those are the only differences between the definitions given in
the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both
entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring
about any change in the treatment or regulation of "distributors" and "manufacturers" of
breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with
the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative
Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires.
The Department of Health and respondents are PROHIBITED from implementing said
provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.