The process was set up as voluntary and self-regulatory because the Government directed that the International Code was to be implemented and monitored through consensus and discussion, not through legislation.
Article 5 of the International Code specifies that products within the scope of the International Code are not advertised.
In New Zealand, it was not possible to legally restrict the advertising of products without contravening the Commerce Act 1986 and the Fair Trading Act 1986.
However, the members of the Infant Nutrition Council (INC) accepted the need for a voluntary code of practice of marketing because of the widely accepted benefits of infants receiving breast milk in the first six months of life.
The INC Code of Practice means there should be no marketing of infant formula and no marketing of follow-on formula as a breast milk substitute in New Zealand.
Requirements for the Ministry
As a government agency the Ministry is required to preserve the principles of fairness, transparency, natural justice and self-regulation. To preserve these principles, the Ministry is required to:
- consult with all parties, including industry, when developing a system that affects their practice or business
- make all processes and documentation available on request to all parties under the Official Information Act 1982
- make the subject of a complaint aware of the complaint against their practice, and allow a right of reply
- allow the behaviour of the subject of a complaint to be regulated by their employer or responsible body.
The 2004 review
A review of the voluntary, self-regulatory implementation and monitoring process for the New Zealand interpretation of the International Code began in 2001.
The consultation phase consisted of a public submission process and meetings with Pacific health practitioners, Māori health practitioners and consumer groups.
The Ministry also set up a consensus process where two meetings were held in 2003 and 2004 with representatives from stakeholder groups.
The Ministry considered all the issues raised in the consultation and consensus process, along with its responsibility to protect, promote and support breastfeeding; the legislative context; and its responsibility to preserve the principles of fairness, transparency, natural justice and self-regulation.
The Ministry decided to continue with a voluntary, self-regulatory approach to implementing and monitoring the International Code in New Zealand.
However, the Ministry acknowledged that attention needs to be paid to raising awareness of the International Code in New Zealand, and to the marketing of follow-on formula.
The review was completed and the review report published in 2004 (Ministry of Health 2004a). The review resulted in 11 actions to refine and strengthen the implementation and monitoring in New Zealand.
The 2011/2012 evaluation
In 2009 Cabinet decided the effectiveness of the WHO International Code in New Zealand should be evaluated and that the Ministry should commence the evaluation in 2011.
The Cabinet decision followed a petition to Parliament in 2005 by Lisa Ross and 15 others that called on Government to adopt and give regulatory force to the WHO Code, and to recognise the WHO Code as a minimum standard.
The Health Select Committee considered the petition in 2008, and Government responded to the Committee’s recommendations in 2009.
As a result of the petition and the 2009 Cabinet decision, the Ministry of Health commissioned two activities to evaluate the effectiveness of the WHO Code in New Zealand.
- A literature and interview-based review by the Research Trust of Victoria University (2011)
- Consultation meetings with key stakeholders, facilitated by Quigley and Watts (2012).
Reports have been prepared on both of these activities.
- Effectiveness, Implementation and Monitoring of the International Code of Breast-Milk Substitutes in New Zealand (2011).
- Key Stakeholder Consultation to Complete the Evaluation of the Effectiveness of the WHO International Code of Marketing of Breast-Milk Substitutes in New Zealand (2012).
The Ministry of Health has considered the findings from both reports, and has identified the following actions to improve the implementation of the WHO Code in New Zealand. The Ministry will:
- continue to advise new infant formula manufacturing and marketing companies about New Zealand’s commitment to the WHO Code
- develop guidance and planning for infant feeding in emergency situations
- develop a jurisdiction test to determine whether complaints are ‘in scope’ before they are referred to the Compliance Panel
- record and report on complaints received that are not within the scope of the INC Code, or the Code of Practice for Health Workers
- update the Compliance Panel Terms of Reference
- revise the Code of Practice for Health Workers, so that an educative approach is taken for first time complaints against a health worker, rather than proceeding through the complaints procedure
- explore ways to educate retailers about New Zealand’s commitment to the WHO Code
- investigate developing an educational resource for health workers about the Code of Practice for Health Workers.
More information about the implementation of the WHO Code in New Zealand and the associated complaints procedure can be accessed on the WHO Code in NZ webpage.