Pharmaceutical and Health Care Association of the Philippines v Duque III

Facts:

Petition for certiorari seeking to nullify the Revised Implementing Rules and
Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not
valid as it contains provisions that are not constitutional and go beyond what
it is supposed to implement. Milk Code was issued by President Cory Aquino
under the Freedom Constitution on Oct.1986.  One of the preambular clauses
of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l
Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the
World Health Assembly(WHA). From 1982-2006, The WHA also adopted severe
resolutions to the effect that breastfeeding should be supported, hence, it should
be ensured that nutrition and health claims are not permitted for breastmilk
substitutes. In 2006, the DOH issued the assailed RIRR.

Issue:
Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of
the law of the land and may be implemented by DOH through the RIRR. If yes, W/
N the RIRR is in accord with int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave
abuse of discretion amounting to lack of excess of jurisdiction and in violation of
the Constitution by promulgating the RIRR.

Held:

Sub-issue:

Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by
transformation (thru constitutional mechanism such as local legislation) or
incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA
resolutions were not treaties as they have not been concurred by 2/3 of all
members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had
been transformed into domestic law through a local legislation such as the Milk
Code. The Milk Code is almost a verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the
provisions pertinent WHA resolutions are customary int’l law that may be deemed
part of the law of the land. For an int’l rule to be considered as customary law, it
must be established that such rule is being followed by states because they con‐
sider it as obligatory to comply with such rules (opinion juris). The WHO resolu‐
tions, although signed by most of the member states, were enforced or practiced
by at least a majority of member states. Unlike the ICBMS whereby legislature en‐
acted most of the provisions into the law via the Milk Code, the WHA Resolutions
(specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding
up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have
not been adopted as domestic law nor are they followed in our country as well.
The Filipinos have the option of how to take care of their babies as they see fit.
WHA Resolutions may be classified as SOFT LAW – non-binding norms, principles
and practices that influence state behavior. Soft law is not part of int’l law.

Main issue:

Yes. Some parts of the RIRR were not in consonance with the Milk Code such as
Sec. 4(f) ->advertising, promotions of formula are prohibited,

Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants
and young children uo to 24 months

And Sec 46 -> sanctions for advertising .

These provisions are declared null and void. The DOH and respondents are
prohibited from implementing said provisions.

Last modified: 9:19 AM