The metaphor “motherhood and apple pie” should have been appositely in place. As well indeed, who ever would have thought that the right of mothers to breastfeed as enshrined in the Milk Code1 could still be a subject of intense debates and be left at the end of rabid public reproof and chastisement. The hues and cries can be traced back to what lies at the path of the implementation of the Code: the small number of Pharmaceutical Companies selling infant milk formula. As of last count, however, 51 of the 63 members of the Pharmaceutical and Health Care Association of the Philippines (PHAP)2 are multinational companies and firms. The small number of members thus deceives, their confederacy is by any measure no less formidable. As had been in fact the case, the Milk Code hit the wall.
When the Philippine Supreme Court gave imprimatur in some measure to the implementation by the Department of Health of the Revised Implementing Rules and Regulations of the Milk Code in its landmark ruling in Pharmaceutical and Health Care Association of the Philippines v. Secretary Duque III, et al.,3 it has already taken all of two decades and more to just operationalize a law anchored on what now has been internationally recognized as the mother’s right to breastfeed their infants. As if begging for another round, the ruling of the court was not readily received by the stakeholders as the definitive disquisition to end the bitter and emotional debate on the matter. While spawning mistaken beliefs, the Court’s cautious approach did not embed grey areas at all as it did in fact underline new perspectives and points of law whence any buttressing of the Milk Code should be founded.
PHAP v. Duque III, et al. more than the public debates that anteceded it brought to fore the international law facet of the Code and its implementing rules which in previous considerations were relegated to preambular utterances. This perceptual shift is far-reaching as it presaged a change of approach: while priorly the controversy was simply regarded as a question of construction and quasi-legislation, the Court just scratched the surface and laid bare a set of questions that can only be settled by international law and by norms and regulations governing the conduct of multinational companies.
Quite contrary to its “as a curious bystander” claim in the media, the place of the MNCs in the debate is not dissimilar to where the World Health Organization is perched; it is a necessary and indispensable party. As such, the much-vaunted corporate social responsibility principles of the MNCs--the self-regulation and cleansing, undertaken voluntarily by corporations4--are bright-lined not just as puffery in their websites and policy statements but as a focal point where one can exact accountability from the MNCs and pinpointedly gauge their actual conduct vis a vis a universally lobbied social good legislation as the Milk Code.
PHAP v. Duque III, et al., like the Milk Code, prescribes rules and regulations. As CSR principles are in the mix, this could be a stride to a crystallization of what is recently alluded in international law as a domestically legislated CSR principles to govern the conduct of MNCs. In this curious mix, along came House Bill 1541 introduced by Akbayan Representative Ana Theresia Hontiveros-Baraquel seeking to introduce a new Milk Code. By all indications, the proposed new Milk Code impinges more upon whatever proprietary and business interest the MNCs sought to protect. More than a rectification of the embattled Milk Code and its implementing rules and regulations, the proposed legislation invites the same academic prying of whether it is a set of legislated CSR principles for MNCs to abide by and defer to. If indeed it is, another progressive legal construct for making MNCs liable for business misconduct is rightly in place. If it is still not, PHAP v. Duque III, et al. and the new Milk Code may well just be the decisive building blocks of a legal framework MNCs will certainly contend with while and after its relative space in this age of integration and interconnection is already settled for good.
1 Executive Order 51, Adopting a National Code of Marketing of Breastmilk Substitutes, Breastmilk Supplements and Related Products, Penalizing Violations Thereof, and for Other Purposes (October 28, 1986).
2 Pharmaceutical and Health Care Association of the Philippines (PHAP), accessed at http:/www.phap.org.ph/directory.aspx. (last accessed December 3, 2007).
3 GR No. 173034, October 9, 2007.
4 Ilias Bantekas, Corporate Social Responsibility in International Law, 22 BOSTON UNIVERSITY
INTERNATIONAL LAW JOURNAL 309 (2004).
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