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Regulate breast milk substitutes equitably

By Prof Ben Sihanya

The aim of Breast Milk Substitutes (Regulation and Control) Bill 2012 according to its sponsors is to regulate the marketing and distribution of breast milk substitutes (BMS) by providing “safe and adequate nutrition for infants...” That is a reasonable objective.

However, the Bill poses numerous constitutional, juridical, scientific, practical and ideological problems to Kenyan consumers, manufacturers, distributors, promoters, advertisers, marketers and the rest of stakeholders.

First, there are substantive constitutional questions. Second, there are related procedural problems under Kenya’s Constitution and juridical system. And third, the Bill poses serious problems in the interface between Kenya’s Constitution 2010 and the World Health Organisation’s (WHO’s) International Code of Marketing of Breast-milk Substitutes of 1981.

The Bill misses the intersection between regulatory laws, on the one hand, scientific and political economy that underline BMS in Kenya on the other.

Why BMS is still relevant

Science indicates that there are numerous reasons why Kenya needs BMS and related products. BMS are crucial for pre-terms, orphans, sick or working mothers, among others. It is instructive that Kenya registers a breastfeeding (BF) rate of 32 per cent, while industry sales translate to only 1.2 per cent of babies. Nigeria, which has a more restrictive constitution, has a BF rate of 13 per cent, while the UK where advertising is more liberal BF rates are higher.

Under clause six that states “... a person shall not advertise or promote or cause to be advertised or promoted a designated or complementary food product...” mean that funding for research, fellowships or study grants regarding BMS are prohibited as is provision of information to mothers and health care providers.

The products include BMS, feeding bottles, teats, and, curiously, “any other product the Cabinet Secretary may, by notice in the Gazette, declare to be a designated product.”

Parliament and the Bill’s sponsors are aware that that measure is drastic especially given the fact that BMS have always been manufactured, distributed, promoted and marketed in Kenya. Even advertising and promotion of poison, alcohol and cigarettes are not prohibited but regulated.

Clause six and others offend numerous provisions of the Constitution, especially those guaranteeing the right or freedom of (commercial) expression (through advertising) to information consumer choice right to property, including investment, personal goods and intellectual property, access to fair administrative action, and access to justice.

Is it punitive?

The content and structure of the Bill also fortifies the foregoing “command and control” methodology and approach to regulation that characterised communist systems in the Soviet Union and Africa. Thus clause four empowers the Cabinet Secretary to establish a National Committee on Infant and Young Child Feeding to advise the Cabinet Secretary on policy regarding the production, manufacture, sale, advertising, promotion and use of relevant products.

Significantly, since the early 1990s, when the Attorney General established task forces, Bills have generally been drafted in consultation with stakeholders. Were manufacturers, distributers, marketers, advertisers and promoters of BMS, among others, meaningfully consulted? Did they accede to the prohibition? What of the contradictions (like prohibition in clause six versus permission in Clause ten), technical and clerical errors? Did they expressly decline representation in the proposed regulatory regime? Stakeholder participation in regulation and governance is now a constitutional requirement (arts.10, 38). Is public private partnership (PPP) still there? My experience in drafting relevant education bills tells me that drafters need to fuse juridical and technical drafting expertise with the policy and practical insights from key stakeholders.

What other say

The Bill’s sponsors have made progress by having Kenya debate, at least through the Bill, Kenya’s perspective on WHO’s Code of 1981. This Code has been sponsored and promoted by WHO and the United Nations Children’s Fund (Unicef) over the years.

Remarkably, Kenya has embarked on constitutional implementation with focus on facilitative regulation; not punitive and confiscatory prohibitionor criminalisation of legitimate socio-economic activities. The Government has a constitutional duty to consult industry and other stakeholders so as to equitably, judiciously, sensitively, and conscientiously regulate the manufacture, advertising, promotion, and marketing of BMS and related products.

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