OneWorld.net (U.S.)

The Ministry of Food Processing Industries, Government of India, on 15th January 2005, has proposed to repeal the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 (IMS Act, 1992) and proposed a new bill “Food Safety and Standards Bill 2005”. Strangely, though the IMS Act serves an altogether different purpose which has nothing to do with the proposed new Act. Under section 108 Schedule 1 of the Bill, the IMS Act has been included in the list of Acts to be repealed instead of the list of Acts which need only be modified. Government of India has asked for comments and suggestions.

The repeal of this highly relevant legislation could put the lives of millions of infants and young children at risk. The repeal is also completely unnecessary, since there is absolutely no conflict between the two Acts, and the proposed new Act operates in an altogether different field.

Briefly, the IMS Act seeks to promote breast-feeding by curbing unethical marketing and promotional practices which denigrate mother’s milk or interfere with breast-feeding. Insofar as food standards and safety issues are concerned, the IMS Act leaves those to be regulated by the Prevention of Food Adulteration Act (PFA).

The proposed “Food Safety and Standards Bill 2005” is concerned primarily with those aspects already covered by the PFA, and has nothing whatsoever to do with protection or promotion of breast-feeding, nor with curbing unhealthy marketing practices of infant milk substitutes, feeding bottles and infant foods.

IMS Act : Some facts Given the vastly increased risk of infant morbidity and mortality when babies are not breastfed, and the documented role that inappropriate marketing of breast milk substitutes had played in this avoidable tragedy, the World Health Assembly (WHA) adopted the international code of marketing of breast milk substitutes in 1981 with the aim of protecting, promoting and supporting breastfeeding, and prohibiting unethical and dangerous marketing practices. The Government of India voted in favor of the adoption of the code.

As follow up of this, and with utmost political and social commitment in 1992, Mr. Arjun Singh, the then minister of HRD, presented a Bill in the Parliament, which was enacted on 29 December 1992 as the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 (IMS Act). It controls the marketing practices of baby food manufacturers.

Since then, the World Health Assembly (WHA) has adopted several resolutions on Infant and Young Child Nutrition, e.g. 47.5 in 1994, 49.15 (1996), 54.2(2001) and 55.25(2002). All these concern breastfeeding and emphasise the need to implement the code at the national level. The World Health Assembly (WHA) also adopted the global strategy for infant and young child feeding in 2002, highlighting the need to harmonise the national policy and legislative framework with global recommendations. The Government of India was party to the adoption of this framework, and has ratified the same.

In India, baby food companies continued to find loopholes and violate the national legislation, and health care workers in the hospitals and pharmacies continued to promote infant foods and breast milk substitutes, An amendment Bill was thus presented to the Parliament to further strengthen the 1992 Act.

Mr. Arjun Singh chaired a standing committee of the Parliament in May 2002, and the committee submitted its report on 12 December 2002, strongly suggesting that measures in the amendment Bill be adopted and enacted as legislation. The amendment Bill was finally enacted in June 2003 and came into force on 1st January 2004.

The objective of the IMS Act is to protect, promote and support breastfeeding; it prohibits any kind of promotion of infant milk substitutes, infant foods and feeding bottles; it ensures proper education of pregnant and lactating mothers about breastfeeding by providing accurate information; it ensures proper use of substitutes, and defines the role of health workers and their associations and health care institutions in promoting breastfeeding as well as prohibiting promotion of baby foods.

The IMS Act also prohibits donations and gifts, prohibits direct promotion of baby foods and feeding bottles to pregnant women. However, insofar as food standards and safety are concerned, these being technical matters which were outside the scope of the IMS Act, they are expressly left out to be regulated by the Prevention of Food Adulteration Act, which is now sought to be replaced by the present Bill.

The enactment of IMS Act has effectively put a clear halt to the decline of breast-feeding, which can be seen, from the NFHS-1 and 2 reports of 1992 and 1999. In fact, the practice of breast-feeding showed small but positive improvement. It stopped promotion of feeding bottles. It stopped promotion of baby foods and sponsorship of medical doctors and their associations by baby food companies. IMS Act has been effective in curbing the promotional activities of baby food companies in the health care system.

It almost stopped promotion of baby foods directly to public through print and other media. Thus it contributed greatly to the basic health and nutrition of infants of young children in India and protected the rights of youngest citizens of India, allowed India to proudly fulfill its international commitments.

The Committee on the Rights of the Child (CRC) has stated that code implementation is an appropriate measure that must be taken to fulfill obligations under the CRC. As a party to the CRC, India would be in violation of its legal obligations if it were to repeal this Act.

The new draft Bill Now the Government of India proposes to repeal the IMS Act along with several other pieces of legislation ostensibly to avoid a multiplicity of food laws, and to provide one law and one regulator.

A Group of Ministers (GOM) has been set up to propose the legislative changes necessary for finalising the modern Integrated Food Law (IFL). The Union Ministry of Food Processing Industries (MOFPI) posted the Bill on its website on 15th January 2005 for comments from the public. According to several past press notes of the MOFPI, the following points highlight the background.

Currently, there are about 15 food adulteration laws in the country and several adulteration cases were pending in various courts, including the Supreme Court. The new law would cover issues of quality and adulteration.

An integrated law would take care of the long-pending demands of the food industry such as to avoid multiple levels of licensing and other approvals. It is evident from the presence of several global foods giants and leading Indian industrial enterprises in the country's food processing sector, such as: Nestle India Ltd, Cadbury's India Ltd, Kelloggs India, Hindustan Lever Ltd, ITC-Agro, Godrej Foods etc.

A Joint Parliamentary Committee (JPC) had found a multiplicity of laws and regulations dealing with food safety standards since as many as eight ministries deal with food laws, resulting in many standard-making bodies such as BIS under the BIS Act, CCFS under the PFA Act, Food Processing Ministry under the FPO and the Agriculture Ministry under AGMARK etc.

It is apparent from the background as well as the contents of the new Bill that the entire purpose of a consolidated food law is completely different from, and in no way conflicting with, the IMS Act. The fact that many divergent laws regulating food standards and safety issues are sought to be consolidated does not in any manner imply that an altogether different law dealing with a subject which cannot possibly be covered in a food safety/standards law should be repealed. If that were so, then laws governing health care, women’s issues, television broadcasting, advertising, and numerous other issues which only peripherally touch upon food safety or standards would have to be repealed.

Why the IMS Act must not be repealed The IMS ACT is a not a routine food law, nor does it have anything in common with the other Acts in the repeal list. It is a special Act to protect, promote and support breast feeding; it does not deal with purity or adulteration of baby foods, but leaves those matters to the general laws enacted to deal with them. Like the PFA, it focuses on marketing practices and other practices which interfere with breast-feeding, and thereby jeopardize the well being of baby and mother. The protection of breast-feeding is vital for saving the lives of millions of children in India every year.

The subject matter of the Food Safety and Standards Bill and the IMS Act is totally different; it is a general Act dealing with all sorts of foods, both processed and unprocessed, and has nothing to do with breastfeeding or the health and well-being of woman and child.

This IMS Act aims to regulate promotion and the marketing practices of baby food manufacturers in relation to health care providers and the public.

Only one of the 9 operative sections of IMS Act deals with food standards, and this section makes it clear that these standards shall continue to be governed by the PFA Act. All that is required is an amendment to provide that this will now be governed by the new Food law, without repealing the IMS Act.

As a follow up to the World Health Assembly (WHA) resolution of 1981, some Rules were framed under the existing PFA Act as a temporary measure. As this process alone was not sufficient, the IMS Act was enacted as a special legislation.

The IMS Act ensures that caregivers have access to accurate infant feeding information in order to be able to make informed choices. It defines the role of health care providers, institutions and associations in the protection, promotion and support of breastfeeding. The food Bill is restricted to ensuring quality standards.

The Group of 8 Ministers constituted to look into the draft Bill does not include a representative from MOHRD, the nodal ministry for IMS Act. There has thus been insufficient understanding of the nature and importance of the IMS Act in the deliberations.

The draft “Food Safety and Standards Bill 2005” is a well-intended effort of the MOFPI to facilitate trade. However it lacks any form of justification for repealing the IMS Act. Indeed, whereas the purpose of the new Bill is to promote the growth of the food processing industry, the purpose of the IMS Act is to protect, promote and support breast-feeding.

There is no conflict whatsoever between the two Acts, and both operate in their respective fields. All that the IMS Act requires is that while adhering to the standards laid down in PFA or in the new Act proposed to replace PFA, the anufacturers/marketers of infant milk substitutes, infant foods and feeding bottles should not do anything which interferes with successful breast-feeding.

There is increasing recognition around the world of the need to implement legislation like the IMS Act. More than 60 countries now have legislation of this nature in place, another 58 countries have adopted a policy, 33 have these drafted, and 24 are studying how to best implement the International Code.

India has made several commitments. By repealing the IMS Act; we will take a retrograde step and forfeit our commitment to several international resolutions, and be in violation of our obligations under the Convention on the Rights of the Child.

India is seen as a world leader in protecting the nutrition rights of mothers and babies and the IMS Act is seen as an excellent model for other countries to adopt. While it is appropriate to examine ways to bring Indian legislation into line with international trade regulations, this should never be done at the expense of the health, development and survival of infants and young children who suffer because of the illegal and unethical marketing practices of the infant food industry.

It appears that there has either been a gross error in including the IMS Act in the list of repealed Acts, or there is a deliberate effort by vested interests to repeal it. Therefore, it is highly unjustified and unacceptable to repeal the IMS Act 1992 as amended in 2003, This will be a step backward in the area of child health, development and survival in India.