SHC dismisses plea of infant milk importers against breastfeeding law

The Sindh High Court (SHC) has dismissed petitions of infant formula milk importers against vires of the Sindh Protection and Promotion of Breastfeeding and Young Child Nutrition Act 2023.

The petitioners, Nutrico Morinaga and others, had submitted in the petitions that the breastfeeding law had been promulgated in violation of the Article 116 of the Constitution without lawful authority. They had also sought injunction against government functionaries from taking any coercive action against them, including, but not limited to, interfering in their smooth business operations and disrupting the sale, promotion and distribution of their products in the market.

A counsel for the petitioners submitted that the impugned legislation was a matter of national policy and it had been enacted without any consultation of the stakeholders and/or deliberation, whereas it had also exceeded its legislative competence.

He also contended that the law also infringed upon the fundamental guarantees and rights of the petitioners and could not be sustained. The counsel submitted that the sections 11, 12, 13 and 14 of the Breastfeeding Act highlighted the excessive restriction, which had the effect of causing a complete halt to the business of the petitioners in the province and beyond, whereas no proper procedure had been provided for registration of the products with the respective authorities.

He said the impugned provisions were vague and ambiguous, and they were creating uncertainty in the entire business industry, including, but not limited to, the sale, packaging and labelling of the products. Besides, the lawyer submitted that even the promotion and advertisements had been banned and/or restricted in respect of the petitioners’ products; hence the impugned legislation could not be implemented and should be declared as ultra vires to the Constitution and the fundamental rights of the petitioners.

The counsel for the respondents submitted that the impugned legislation had been enacted in conformity with the international health requirements and notified by various agencies, including the United Nations, therefore, no exception could be drawn to the said enactment.

They submitted that the petitioners were engaged in deceiving the people in general by using perceived child health as a marketing tool, whereas the impugned legislation safeguarded the public interest and fulfilled all such requirements that were in the benefit of entire society.

A division bench of the SHC headed by Justice Mohammad Junaid Ghaffar after hearing the arguments of the counsel observed that it was a matter of fact that the rate of breastfeeding in the first six months of birth in the province of Sindh had remained at a very low level, whereas the World Health Organisation advised breastfeeding exclusively until the child was six months old at which point supplementary solid foods could be introduced.

The SHC observed that the repealed law had a fundamental flaw, since it provided no protection to children from the age of 24 months to 36 months and the Breastfeeding Act had corrected certain vital defects by amending the required provisions as well as definitions.

The high court observed that the provisions on which the petitioners had raised their concerns were in fact measures designed to safeguard health and well-being of infants, promoting their proper nutrition and development, whereas it provided a very apt input for other provinces to follow.

The SHC observed that the legislation also discouraged a deceptive advertisement and marketing strategy of the manufacturers of infant baby formula milk and restricted the physicians; since it required a stricter compliance so that these deceptive marketings and strategies were diluted.

The bench observed that an overall examination of the impugned Breastfeeding Act led the court to the conclusion that even if there was a situation, whereby, the petitioners’ business was being affected due to strict compliance as against the earlier law; but this in and of itself, could not be a ground to strike down the impugned Act in the larger interest of the community.

The SHC observed that the petitioners were required to follow the law, and in doing so if they had to forgo some of their profits, it was certainly not a case of violation of any of their fundamental rights as contended on their behalf. The high court observed that the objections raised on behalf of the petitioners that the Breastfeeding Act had been promulgated in violation of the articles 4, 8, 9, 18 and 25 of the constitution was misconceived, and dismissed the petitions.