The Australian Competition and Consumer Commission (ACCC) says it is unlikely to approve the Infant Nutrition Council request for a five-year extension to its industry code because of several factors undermining its effectiveness.
The ‘Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement’ (MAIF Agreement) was created in 1992 to restrict the advertising and promotion of formula to infants up to 12 months of age.
The ACCC’s authorisation is required because it’s an agreement between competitors not to market their infant formula products.
The voluntary, self-regulatory industry code of conduct was part of Australia’s response to its obligations as a signatory to the World Health Organisation’s International Code of Marketing Breast Milk Substitutes.
The ACCC said the code no longer provided public benefits that outweigh potential detriments.
ACCC deputy chair, Mick Keogh, said the link between breastfeeding and improved health outcomes for mothers and children was “undisputed”.
“However, while the MAIF Agreement aims to protect and promote breastfeeding rates in Australia, we are concerned that there are several factors that undermine its effectiveness.
“This includes its voluntary nature, its limited scope, and restrictions on its ability to capture the breadth of modern digital marketing methods, such as the use of social media algorithms and content created by third-party influencers,” Keogh said.
In 2021, the commission granted authorisation for another three years while forecasting the risk of public detriment outweighing public benefit would grow “should the period exceed the agreed three-year duration”.
Since then, the Department of Health and Aged Care commissioned an independent review of the MAIF Agreement that found it was no longer fit for purpose. The review recommended the agreement be replaced with a stronger regulatory framework in the form of a legislated, prescribed, mandatory code.
“Effective government regulation of infant formula marketing would likely result in public health benefits,” Keogh said.
The federal government said it was considering the findings of the review, but the timing of its response was uncertain.
“Given the issues undermining its effectiveness, the ACCC is not satisfied that the MAIF Agreement and associated guidelines are likely to result in a net public benefit to justify authorisation,” he said.
The ACCC granted interim authorisation on 14 August so the agreement could continue while it completed its assessment of the substantive application for authorisation.
It is seeking submissions in response to the draft determination by 17 October.
More information about the application, the ACCC’s indicative timeline, and how to make a submission is available on the ACCC’s public register at Infant Nutrition Council.
