Formula Firms Fight Against Expanded Online Ad Ban Despite WHO Warnings

Saturday, 12 April 2025, 3:07 pm
Article: RNZ

Anusha Bradley, Investigative Reporter
10 April 2025

Baby formula companies tried to convince the government to resist an expanded global ban on internet marketing of infant milk, despite evidence that online advertising was discouraging mums from breastfeeding.

The former chief executive of the local formula industry body even met with diplomats based at the World Trade Organisation in Geneva to raise its concerns, documents obtained by RNZ under the Official Information Act show.

Meanwhile, French multinational Danone, whose Karicare and Aptamil brands dominate the market in New Zealand, separately told senior ministers that new World Health Organisation (WHO) digital marketing guidelines were "misguided" and urged officials not to enshrine them into law.

"A communication blackout will deny New Zealand parents and carers the information to make informed choices on the best nutritional options for their infants," Danone wrote.

WHO issued the new guidelines last year, recommending a ban on "digital" advertising of all formula - and baby food - for children under three years old, after a review found social media was now the main way parents were exposed to formula marketing.

It said "exploitative" and "insidious" marketing practices online had led to increasing sales of formula, while dissuading mothers from breastfeeding.

"Through tools like apps, virtual support groups or 'baby-clubs', paid social media influencers, promotions and competitions and advice forums or services, formula milk companies can buy or collect personal information and send personalized promotions to new pregnant women and mothers," the WHO report said.

The World Health Assembly is expected to formally adopt the guidelines into its International Code of Marketing of Breastmilk Substitutes in May.

The New Zealand government's 2023 submission to the draft guidelines - made in consultation with formula companies - did not support the full scope of the proposed rules banning digital marketing of foods for infants and young children, or the expanded definition of breastmilk substitutes covering infants up to three years of age.

New Zealand has been a signatory to the Code since 1983, but only partially complies with it because compliance is based on a voluntary, industry-run code of practice, rather than regulations enshrined in law.

The Code, which is run by industry body the Infant Nutrition Council (INC) and overseen by the Ministry of Health, currently prohibits members from marketing products for infants up to 12 months of age, including digital marketing.

Rules 'misguided'

Documents released to RNZ show that Danone urged senior ministers against adopting the new guidelines into law, despite the company's own 'advocacy policy' stating it supports national legislation that supports the WHO International Code of Marketing of Breast-milk Substitutes.

"The guidance is misguided and will have profound consequences for the infant formula industry and consumers," Danone New Zealand operations manager Steve Donnelly wrote in a December 2023 letter to Food Safety Minister Andrew Hoggard and Trade and Agriculture Minister Todd McClay.

He urged ministers to apply a "national interest test" to the WHO guidance, referring to the National-New Zealand First coalition agreement requiring the government to apply such a test before it accepted any United Nations agreements.

"Our view is that the consequences of the WHO guidelines for breast milk substitute digital marketing are of the national interest and should not be adopted," wrote Donnelly.

The guidelines would lead to a "total ban" of all digital communications about its products for newborns up to 36-months old, he said.

Even though potential ratification by New Zealand was "likely years away" and led by the health ministry he urged the ministers and MPI to "take an active interest in these developments."

Danone had also raised its concerns to the Ministry for Primary Industries' Dairy Product Safety Advisory Council (DPSAC) in November 2023, questioning what action the government was taking over the issue.

DPSAC was set up in 1999 to "promote communication between MPI and industry and assist in developing standards and policies." Danone has been a member since 2020.

At the time, MPI told Danone the final guidelines had already been issued and there was nothing it could do, documents show.

Danone raised concerns again in April 2024 with Foreign Affairs Minister Winston Peters.

"Our primary concern is that babies and parents do not become the poor relation of regulation," wrote Donnelly.

The letter was forwarded to Associate Health Minister Casey Costello, who oversees maternal health, to respond to.

Her officials noted the guidance issued by WHO was not legally binding, and health, MPI, MFAT and Health NZ would work together to determine "whether any actions from the guidance will be implemented."

Costello told Donnelly the government had no plans to change the voluntary INC code of practice currently in place.

"If evidence emerged that suggested New Zealand's current approach does not adequately cover digital marketing practices, then New Zealand may consider measures covered in the guidance," she wrote in a June letter.

She would expect the industry to be consulted if changes were proposed, she said.

'A bit of a shocker'

RNZ asked Danone why it was against the new guidance when the current INC code already banned the use of digital marketing.

The company declined to be interviewed, but in a statement said it wrote to senior ministers over the "concerning language used in the digital marketing guidance which suggested it was mandatory and superseded national laws".

When asked why it opposed national laws when it was its own policy to support national legislation supporting the WHO code, it responded that it supported the code but the digital marketing guidelines were not yet officially part of it.

"We believe it must be made clear to policymakers that preventing infant formula manufacturers from providing factual information about their products via digital channels may exacerbate existing issues faced by parents and carers, such as the rise of misinformation and unreliable content online," it said.

Danone's own 2023 global advocacy policy stated the company would support the WHO code.

"As a first step we will support the adoption, implementation and, critically, enforcement of national legislation to meet the needs of each market."

It also stated it is "committed to lobbying only in support of measures to improve health and nutrition, consistent with the public interest and nutrition".

Danone was not the only organisation opposed to the WHO guidance.

INC, which runs the voluntary code of practice for marketing formula in New Zealand, told MPI the guidelines were "a bit of a shocker".

"We think it should not proceed," INC policy analyst Carole Inskter told MPI officials in September 2023.

That same month, then-INC chief executive Jan Carey flew to Geneva and met with Ministry of Foreign Affairs and Trade officials based at New Zealand's permanent mission to the World Trade Organisation over the issue.

"From industry's point of view, digital marketing is already covered under the WHO Code including in New Zealand's response which is the INC Code of Practice for the Marketing of Infant Formula in New Zealand," she wrote.

The College of Midwives said it would like to see the WHO code enshrined in New Zealand law "to protect breastfeeding."

In a 2023 submission to the Commerce Commission about the INC code it raised concerns about New Zealand not fulfilling its obligations under the WHO code.

Legislation would "support unbiased information about the safe and appropriate use of commercial milk formula for parents and carers," it said.

"The marketing of commercial milk formula directly undermines breastfeeding protection."

The INC Code requires Commerce Commission approval because it brings companies together in a way that could be perceived as collusion.

In February, Australia's competition regulator denied extending the INC's code on that side of the Tasman for another five years over concerns about its voluntary nature, limited scope and ability to restrict digital marketing methods.

Australia's health department has recommended replacing it with a mandatory code, which is expected to take two years to implement.

The health ministry told RNZ there was no timeline for implementing the new WHO digital marketing code in New Zealand.

The pushback against the WHO guidelines was revealed amid a recent RNZ investigation into a government backdown over trans-Tasman formula guidelines.

That investigation found a handful of formula companies, led by Danone and The A2 Milk Company, successfully lobbied against the government adopting tougher trans-Tasman food standards for baby formula.

The companies opposed two labelling rules they claimed would have affected sales and exports to China.

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