Advertisement restrictions for formula milk; what about cell-based solutions?

Claims for formula milk that refer to nature can be understood as a (prohibited) discouragement of breastfeeding, as was recently ruled in two instances by the Dutch Advertising Code Foundation. This case captured our attention, especially with an eye to future possibilities of cell-based breastmilk alternatives.

What is the case about? Advertiser, a food business marketing infant and follow-on formula, published statements on its website about its products such as:

• “Unique combination of natural lactic acid cultures and valuable fibers.”
• “Where organic ends, […] continues: […] guarantees an excellent quality and supersedes the legal requirements concerning organic.”
• “Inspired by nature.”
• “With the first milk that is non mom’s, I want to do all well” (next to a picture of a baby in the arms of a woman).

The question is whether (a) these texts qualify as advertisements, and (b) whether the texts give the impression that the follow-on formula is as good as breastmilk.

What is the legal rule? Consumer-oriented advertising for infant formula is prohibited. Advertisements for follow-on formula are possible, but should not dissuade or discourage breastfeeding. This is laid down in articles 4.1 and 5.2 of the Dutch Advertising Code for Infant Formula, in line with EU Regulation 2016/127. As follows from article 6(6) of aforementioned Regulation, the labelling, presentation and advertising of infant and follow-on formula shall not include terms like ‘humanized’, ‘maternalized’ or ‘adapted’. The Dutch Advertising Code for Infant Formula further lists ‘inspired by breastmilk’, ‘protected effect of breastmilk’, and ‘contains nutrients that are also found in breastmilk’ as examples of prohibited statements to avoid discouragement of breastfeeding.

What was decided? The Board of Appeal upheld the decision of the Advertising Code Committee and ruled that (a) the texts on advertiser’s website are clearly promotional in nature, and that (b) the consumer will understand the references to nature to be references to breastmilk (and not to the products having organic qualities, as was explained by advertiser). As this is in violation of the Dutch Advertising Code for Infant Formula, advertiser is requested to no longer make such advertisements.

Our analysis and future outlook: It is commonly agreed that breastfeeding, where possible, should be supported. This is one of the principles laid down in the WHO International Code of Marketing of Breast-Milk Substitutes and the subsequent relevant resolutions of the World Health Assembly. We are therefore not surprised by the ruling.

Looking into the future, it is interesting to note that the same rules shall in principle apply to cultivated breastmilk made in a lab. Various companies are already working on this concept such as French Nūmi and BIOMILQ in the US. Giants like Danone and FrieslandCampina have announced strategic partnerships with cell-based human milk component start-ups. Companies working on such substitute products obviously want to (and should) explain their products to the public. Statements such as ‘inspired by breastmilk’ and ‘contains nutrients that are also found in breastmilk’ may not seem unreasonable in this context. Currently this is however not allowed. Will the Dutch self-regulatory code (which is more specific in prohibited terms than EU Regulation 2016/127 and the WHO Code) be updated, so that such innovations can be appropriately explained to the public? Stay tuned – we will keep you posted!

The full case can be read here (in Dutch).