The Philippines Breastmilk Substitute/Supplement Marketing Framework Violates WTO Law (Part 2 of 2)
LexisNexis Legal Newsroom International Law, September 2013
49 Pages Posted: 20 Mar 2014
Date Written: September 19, 2013
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 2 of 2 of this analysis evaluates the compatibility of such measures with the Trade Related Aspects of Intellectual Property ("TRIPS") Agreement.
See also Part 1 of 2, at: http://ssrn.com/abstract= 2411243.
Keywords: legitimate public policy objectives, negative trademark rights, positive trademark rights, trademark owner's legitimate interests, justifiable encumbrance, more trademark encumbering than necessary, more trade-restrictive than necessary, risks that non-fulfillment would create
JEL Classification: K23, K32, K33
Suggested Citation: Suggested Citation