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3-PHAP vs. Secretary of Health (Domer)

This case involves a petition filed by the Pharmaceutical and Health Care Association of the Philippines (PHAP) challenging the validity of certain provisions of the Revised Implementing Rules and Regulations (RIRR) of Executive Order No. 51, also known as the "Milk Code". The Supreme Court upheld some provisions of the RIRR but struck down others as going beyond the Milk Code or violating the petitioner's due process rights. Key issues addressed were whether the RIRR was consistent with the Milk Code and international agreements ratified by the Philippines. The Court found some provisions inconsistent or imposing unauthorized sanctions.

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157 views5 pages

3-PHAP vs. Secretary of Health (Domer)

This case involves a petition filed by the Pharmaceutical and Health Care Association of the Philippines (PHAP) challenging the validity of certain provisions of the Revised Implementing Rules and Regulations (RIRR) of Executive Order No. 51, also known as the "Milk Code". The Supreme Court upheld some provisions of the RIRR but struck down others as going beyond the Milk Code or violating the petitioner's due process rights. Key issues addressed were whether the RIRR was consistent with the Milk Code and international agreements ratified by the Philippines. The Court found some provisions inconsistent or imposing unauthorized sanctions.

Uploaded by

Arnel Manalastas
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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PHAP v. Secretary of Health, G.R. No.

173034, October 9, 2007

I. Who are the parties?

Petitioner – Pharmaceutical and Health Care Association of the Philippines (representing


its members that are manufacturers of breastmilk substitutes.

Respondent – Health Secretary, Undersecretaries, and Assistant Secretaries of the


Department of Health. The DOH is deemed impleaded as co-respondent since the
aforementioned respondents issued the assailed RIRR in their capacity as officials of the
said Agency.

II. What is the nature of petition or action?

Petition for Certiorari seeking to nullify the Revised Implementing Rules and
Regulations of EO No. 51 aka The “Milk Code”, Relevant International Agreements,
Penalizing Violations, and for other Purposes (RIRR)

w/ Prayer for the Issuance of Temporary Restraining Order (TRO) or Writ of


Preliminary Injunction

III. What is the disputed matter?

WoN the questioned RIRR is not valid as it (a) contains provisions that are not
Constitutional and (b) go beyond the law it is supposed to implement. (This part is sooo
long)

IV. Are there facts established and material to the disposition by the Court
(discussion of evidentiary submission and evaluation of evidence by the court)?

Antecedent

In 1986, President Aquino issued Executive Order No. 51 which gives effect to
Article 11 of the International Code of Marketing of Breastmilk Substitutes
(ICMBS).

In 1981, ICMBS was adopted by WHA in a recommendatory nature.

From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be promoted and protects, hence, it should be ensured that
nutrition and health claims are not permitted for breastmilk substitues.

In 1990, the Philippines ratified the International Convention on the Rights of


the Child. Its Article 24 provides that States should take steps to (1) diminish
infant and child mortality, and (2) ensure that society is informed of the
advantages of breastfeeding.

On May 15, 2006, the DOH issued the herein assailed RIRR.

On June 28, 2006, the herein petitioner filed the Petition.


V. What questions did the disputed matter present?
(How did the PARTIES and the COURT frame the dispute?)

1. WoN the petitioner a real party-of-interest;


Yes. The legal identity of herein association is fused with its members. Looking at
the Articles of Incorporation of the association, it was organized to act as
representative of the pharmaceutical and health care industry before the
Philippine Government.

2. WoN the RIRR issued by DOH is not unconstitutional;


2.1 WoN the RIRR is in accord with the provisions of The Milk Code

Partially.
1. Petitioner is mistaken in its claim that the Milk Code’s coverage is limited only
to 0-12 months old. The coverage of the Milk Code is not dependent on the age
of the child but on the kind of product being marketed to the public. The law
treats infant formula, bottle-fed complementary food, and breastmilk substitute
as separate and distinct product categories.

Breastmilk Substitute is defined under Section 4(a) as “any food being marketed
or otherwise presented as a partial or total replacement for breastmilk, whether
or not suitable for that purpose.” The aforementioned section lacks reference to
any particular age group. Hence the provision of Milk Code cannot be
considered exclusive for children aged 0-12 months.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible
substitute for breastmilk.

Section 7 of the RIRR provides that “when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete
and updated information.

3. On whether the labeling requirements and advertising regulations under the


RIRR are valid, the Court ruled recognized that the Revised Administrative Code
vested DOH with the responsibility and power to information control especially
with regard to the proper care of infants. However, DOH’s power to control
information does not equate power to impose absolute prohibition.

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code

4. With regard to activities for dissemination of information to health


professionals, the Court finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b) of the Milk Code, in
relation to Section 8(b) of the same code, allows dissemination of information to
health professionals but such information is restricted to scientific and
factual matters.
5. The petitioner alleges that Section 8(e) of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the
continuing education of health professionals, while Section 22 and 32 of the
RIRR absolutely forbids the same.

The court finds no inconsistency between the Milk Code and the RIRR. Under
Section 12(b) of the Milk Coe, the DOH shall be principally responsible for the
implementation of the Code therefore the prohibition of the RIRR on milk
companies participating in any policymaking body is in accord with Milk Code.

6. As to RIRR’s prohibition on donations, said provisions are also consistent


with the Milk Code. Donations can be made upon the request or with the
approval of the DOH. Therefore, the RIRR setting its policy not to request of
approve donations from manufacturers is within its discretion.

7. With regard to Section 46 of the RIRR providing for administrative sanctions


that are not found in the Milk Code, the court upholds the petitioners objection.

The court ruled that neither the Milk Code nor the Revised Administrative Code
grants the DOH authority to fix or impose administrative fines.

DOH may authorzed means such as (1) causing prosecution under the Code or
(2) imposing penalties to the violators pursuant to the sanctions provided for in
the Milk Code.

8. Petitioner claims that Section 57 of the RIRR repeals existing laws that are
contrary to the RIRR—this is frivolous.

Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and regulations.

2.2 WoN the pertinent international agreements entered into by the Philippines
are part of the law of the land. If yes, whether the RIRR is in accord with the
international agreements;

There are two ways an International Agreement can become part of the law of
the land:

By Transformation (Section 21, Article VII of the 1987 Constitution) ‘no


international agreements shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate)

The provisions of the WHA Resolutions cannot be considered as part of


the law of the land because it did not have a legislative blessing of the
Senate.

By Incorporation (Section 2, Article II of the 1987 Constitution) “The


Philippines….adopts the generally accepted principles of international law
as part of the law of the land…”
‘Generally accepted principles of internal law’ refers to norms of general
customary internal law which are binding on all states, i.e. renunciation
of war as an instrument of national policy, principle of sovereign
immunity, a persons right life, etc.

According to Fr. Joaquin Bernas, 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.
The herein respondents have not presented any evidence to prove
that the WHA resolutions were in fact enforced or practice by at
least a majority of the member states.

Neither have they proven that any compliance by member states


with said WHA Resolutions was obligatory in nature.
*WHA has regulatory and recommendatory functions.
The ICMBS was adopted by WHA in a
recommendatory nature.

WoN DOH may implement the provisions of the WHA Resolutions by


virtue of its powers and functions under the Revised Administrative Code
even in the absence of a domestic law;

No. The first question to answer is whether the absolute prohibition on


advertising and other promotion of breastmilk substitutes provided in some
WHA Resolutions has been adopted as part of the national health policy?

The national policy on infant and young child feeding is embodied in


Administrative Order No. 2005-0014. Nowhere in the latter is it declared that
advertisement or promotion of breastmilk substitute is absolutely prohibited.

The Milk Code does not contain such absolute prohibition either. It calls for
regulation of said advertising and promotion.
*Only provisions in the Milk Code, NOT those of subsequent WHAT
Resolutions, can be validly implemented through the RIRR.

2.3 Whether certain sections of the RIRR violate the due process clause
and are in restraint of trade;

The petitioners failed to show that the prohibition of milk manufacturers’


participation in any policymaking body (Section 4(i)), classes and seminars for
women and children (Section 22); the giving of assistance, support and logistics
or training (Section 32), and the giving of donations (Section 52) would
unreasonably hamper the trade of breastmilk substitutes. Petitioner failed to
show that the prohibited activities are indispensable to the trade of breastmilk
substitutes and that the aforementioned provisions are unreasonable and
oppressive to trade.
2.4 Whether Section 13 of the RIRR on the Total Effect provides sufficient
standards;

Yes. Section 13 of the RIRR sets a viable standard against which the IAC may
screen promotional materials on breastmilk substitutes before they are made
public.
*Total Effect – should not suggest that buying their milk product
produces better individuals.

Referring to Equi-Asia Placement, Inc vs. DFA, the court accepted as sufficient
standards the ff.: public interest, justice and equity, public convenience and
welfare, and simplicity, economy and welfare.

In this instant case, the court believes that correct information as to infant
feeding and nutrition is infused with public interest and welfare.

VI. Was the dispute resolved by the Court and how?

The Petition is partially granted. Sections 4(f), 11, and 46 of the RIRR are declared Null
and Void for being ultra vires. The DOH and respondents are prohibited from
implementing said provisions.

The TRO is lifted insofar as the rest of the provisions of the RIRR is concerned.

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