Pharmaceutical and Health Care Association V

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION V.
DUQUE
GR NO. 173034, October 9, 2007
Facts:
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino by virtue
of the legislative powers granted to the president under the Freedom Constitution. The Milk
Code states that the law seeks to give effect to Article 112 of the International Code of Marketing
of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in
1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding
should be supported, promoted and protected, hence, it should be ensured that nutrition and
health claims are not permitted for breastmilk substitutes. The Philippines ratified the
International Convention on the Rights of the Child. Article 24 of said instrument provides that
State Parties should take appropriate measures to diminish infant and child mortality, and ensure
that all segments of society, specially parents and children, are informed of the advantages of
breastfeeding. The DOH issued RIRR which was to take effect on July 7, 2006. A petition for
certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised Implementing Rules
and Regulations of the Milk Code, assailing that the RIRR was going beyond the provisions of
the Milk Code, thereby amending and expanding the coverage of said law was filed.
Issue:
Are the Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued
by the Department of Health (DOH) constitutional?
Ruling:
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions. Under the 1987 Constitution,
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is deemed to have the
force of domestic law. Treaties become part of the law of the land through transformation
pursuant to Article VII, Section 21 of the Constitution. The ICMBS and WHA Resolutions are
not treaties as they have not been concurred in by at least two-thirds of all members of the Senate
as required under Section 21, Article VII of the 1987 Constitution. However, the ICMBS which
was adopted by the WHA in 1981 had been transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law
in this jurisdiction and not the ICMBS per se. The Milk Code is almost a verbatim reproduction
of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the provision
in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general
public of products within the scope of the ICMBS. Instead, the Milk Code expressly provides
that advertising, promotion, or other marketing materials may be allowed if such materials are
duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method. Customary international law is deemed incorporated into
our domestic system. Apparently, the WHA Resolution adopting the ICMBS and subsequent
WHA Resolutions urging member states to implement the ICMBS are merely recommendatory
and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the
legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions, specifically providing for exclusive breastfeeding from 0-6 months, continued
breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of
breastmilk substitutes, have not been adopted as a domestic law. As previously discussed, for an
international rule to be considered as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to comply with such rules (opinio juris).
Respondents have not presented any evidence to prove that the WHA Resolutions, although
signed by most of the member states, were in fact enforced or practiced by at least a majority of
the member states; neither have respondents proven that any compliance by member states with
said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of the law of the land. Consequently,
legislation is necessary to transform the provisions of the WHA Resolutions into domestic law.
The provisions of the WHA Resolutions cannot be considered as part of the law of the land that
can be implemented by executive agencies without the need of a law enacted by the legislature.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising
and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will
regulate said advertising and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch
of government, the legislature.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance
with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.

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