The Philippines Breastmilk Substitute/Supplement Marketing Framework Violates WTO Law - (Part 1 of 2)

LexisNexis Legal Newsroom International Law, September 2013

100 Pages Posted: 20 Mar 2014

See all articles by Lawrence A. Kogan

Lawrence A. Kogan

The Kogan Law Group, P.C.; Institute for Trade, Standards and Sustainable Development (ITSSD)

Date Written: September 19, 2013

Abstract

This two-part analysis entails a technical review of the WTO-compatibility of the various infant formula marketing regulatory measures enacted by the Philippines Government which are collectively referred to as the Philippines Breastmilk Substitute/Supplement Marketing Framework ("PH BMS Framework").

This analysis reveals that, although the Philippine BMS Framework is well-intentioned, it imposes new ‘public interest’ non-tariff trade barriers limiting the market access of foreign follow-on formula and complementary food products. It finds that such measures include significant restrictions on the use of proprietary trademarks in product labeling, advertising and packaging which impair the economic value of such intangible assets. It also finds that these regulations apply even where such products are marketed in accordance with the World Health Organization’s International Code of Marketing of Breast-milk Substitutes (“WHO Code”) and other resolutions and are not intended for infants under 0-6 months of age. Consequently, this analysis concludes that the PH BMS Framework overreaches and contravenes WTO law.

Part 1 of 2 of this analysis evaluates the compatibility of such measures with the Technical Barriers to Trade ("TBT") Agreement.

See also Part 2 of 2, at: http://ssrn.com/abstract= 2411245.

Keywords: technical regulation, international standard, WHO Code, legitimate public policy objectives, fulfillment of policy objectives, more trade-restrictive than necessary to achieve policy objectives, least trade-restrictive alternative reasonably available, risks non-fulfillment would create

JEL Classification: KK23, K32, k33

Suggested Citation

Kogan, Lawrence A., The Philippines Breastmilk Substitute/Supplement Marketing Framework Violates WTO Law - (Part 1 of 2) (September 19, 2013). LexisNexis Legal Newsroom International Law, September 2013. Available at SSRN: https://ssrn.com/abstract=2411243

Lawrence A. Kogan (Contact Author)

The Kogan Law Group, P.C. ( email )

100 United Nations Plaza
Suite 14F
New York, NY 10017
United States
2126449240 (Phone)

HOME PAGE: http://www.koganlawgroup.com

Institute for Trade, Standards and Sustainable Development (ITSSD) ( email )

P.O. Box 223
Princeton Junction, NJ 08550-9998
United States
6096587417 (Phone)

HOME PAGE: http://www.itssd.org

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