WRITTEN QUESTION P-1229/01

by Bart Staes (Verts/ALE) to the Commission

(10 April 2001)

Subject: Distortion of competition in the Belgian Federation as a result of non-compliance with Directive 91/321/EEC

In the Belgian Federation, Directive 91/321/EEC(1) of 14 May 1991 was transposed by Royal Decision of 27 December 1993 on the advertising of infant formulas and the distribution of free samples. The directive is an incomplete transcription of the international code of conduct for marketing breastmilk substitutes, as drawn up by the World Health Organisation and Unicef and adopted in 1981 by the WHO General Assembly. In reply to a question from Senator Sabine de Bethune, the Federal Minister for Consumer Affairs, Public Health and the Environment, Magda Aelvoet, announced on Thursday, 22 March that the promotional campaigns of manufacturers of infant formulas were in conflict with the decision. The distribution of free samples thus advertising infant formulas is clearly still very much the practice in Belgian maternity wards. The approach is not only unlawful. It is also at variance with the EC Treaty (in this case, distortion of competition) and undermines the purpose of the WHO code, which is to encourage breastfeeding on grounds of public health.

Does the Commission agree that this approach by manufacturers of and dealers in infant formulas is in breach of the EC Treaty on grounds of distortion of competition between the various maternity hospitals, manufacturers and dealers? If so, what steps will the Commission be taking to deal with such distortion of competition? If not, what arguments can the Commission produce for regarding the free issue of infant formulas by manufacturers and dealers in maternity hospitals as complying with the EC Treaty, in spite of the consequent distortion of competition between the various maternity hospitals, manufacturers and dealers?

(1) OJ L 175, 4.7.1991, p. 35.

Answer given by Mr Monti on behalf of the Commission

(31 May 2001)

Under Article 8.2 of Commission Directive 91/321/EEC of 14 May 1991 on infant formulae and follow-on formulae it is prohibited to give samples of infant formulae directly to the consumer at the retail level. Under Article 8.3 manufacturers and distributors of infant formulae shall not provide, to the general public or to pregnant women, mothers or members of their families, free or low-priced products, samples or any other promotional gifts, either directly or indirectly via the health care system or health workers. Under Article 9.4 Member States shall ensure that donations or low-price sales of supplies of infant formulae to institutions or organisations, whether for use in the institutions or for distribution outside them, shall only be used by or distributed for infants who have to be fed on infant formulae and only for as long as required by such infants. Member States are responsible for the application of the provisions of the above Directive in their territory.

The Commission is not aware of the promotional campaigns of manufacturers of infant formulae to be able to express an opinion as to their conformity with the relevant legislation. However it notes that the national authorities deem them to be in conflict with that legislation. It is the responsibility of those authorities to take the necessary steps to ensure that the legislation in force is respected by all interested parties. The Commission would not intervene unless there are complaints that the national authorities have failed to exercise these responsibilities.

The Commission does not see, from the information supplied by the Honourable Member, in how far the promotional measures described could distort competition between hospitals and suppliers.