“Are you breastfeeding or bottle feeding?”

New mothers are often asked this question in the 21st century, where bottle feeding is considered a normal alternative to breastfeeding.

When I first heard of the Sindh Protection and Promotion of Breastfeeding and Young Child Nutrition Act, 2023, my first response was to think of the state’s need to hyper-regulate women’s choices and bodies. Seeing how normalised formula ‘milk’ is in today’s day and age, I was not aware of the health consequences that come with this normalisation.

It was only when I began reading up more on this that I realised how often conglomerates and profit-seekers influence what we think is a ‘choice’. But is it a choice when one side has the resources, mediums and capital to influence the way consumers’ minds work?

What do the laws say?

During World Breastfeeding Week in August, the Sindh Assembly passed the Sindh Breastfeeding Act — referred to above — repealing the 2013 Act of the same name.

The law is currently being challenged in the Sindh High Court (SHC) by five companies, represented by the Baby Food and Nutrition Council (BFNC) — a collective for infant and child food-producing companies.

Before delving into the case, let’s take a look at what the law has to say.

The 2013 Act placed some restrictions on the marketing and promotion of designated products such as infant formula, follow-up formula, ready-to-use supplementary food, feeding bottles, pacifiers etc — the new law aims to make these restrictions even more stringent.

It calls for the establishment of an ‘Infant and Young Child Nutrition Board’ under the provincial health ministry to regulate and uphold the provisions of the Act.

According to Parliamentary Secretary of Health and former Member of Provincial Assembly (MPA), Qasim Soomro, who introduced the bill, the law has been drafted in collaboration with multi-lateral organisations including the World Health Organisation (WHO) and the United Nations Children’s Fund (Unicef), the Pakistan Paediatric Association (PPA), advocacy groups and health experts. He added that the Act and its provisions were also discussed with representatives of the BFNC before it was introduced in the Sindh Assembly.

A major addition to the new law is its inclusion of products aimed at ‘young children’ — up to 35 months — from just infant formula which is for children under one year of age. It also states that all designated products must be sold at pharmacies and stores approved by the newly created board instead of all retail stores.

The 2023 law incorporates many recommendations from the World Health Assembly’s (WHA) ‘Guidance on ending the inappropriate promotion of foods for infants and young children’ first released in 2016.

The law bars businesses from advertising or promoting designated products for up to 35 months of age, including the use of sales devices such as coupons, special displays, prizes, donating or distributing educational material referring to infant and young child feeding and material that correlates the educational performance of children who consume formula milk.

It strictly prohibits representatives from visiting healthcare facilities and health workers to promote their products or to donate any supplies including toys and merchandise to healthcare facilities, and businesses from sponsoring events and individuals, funding conferences, seminars or research grants.

It also restricts companies from “directly or indirectly establish[ing] relationships with parents and other caregivers through baby clubs, social media groups, child care classes, contests and any other means”. Health workers, companies and representatives found violating the law could be subject to a revocation of their licence, a fine and even imprisonment of up to two years.

“I have personally seen representatives and sales agents of companies enter even as far as hospital wards. Even if doctors do not advise formula to mothers, in many cases, nursing and hospital staff do so behind the scenes. The new Act calls for more stringent measures against companies’ influence on health workers,” Soomro explained.

The law also calls for even stricter measures on the labelling of designated products. It bars infant formula from being labelled as ‘milk’, mandates specifying the age bracket for each type or formula on the package and prints multiple warnings in addition to the previous one. According to the Act, all baby formula packaging must:

• Read “MOTHER’S MILK IS BEST FOR YOUR BABY AND HELPS IN PREVENTING MALNUTRITION, DIARRHOEA AND OTHER DISEASES” in big, bold letters.

• Contain the word, “WARNING” and indicate thereunder, the statement, “Before deciding to supplement or replace breastfeeding with this product, seek the advice of a health professional. It is important for your baby’s health that you follow all preparation instructions carefully. If you use a feeding bottle, your baby may refuse to feed from the breast. It is more hygienic to feed from a cup” in characters no less than one-third size of the characters in the product name, and in no case less than 1.5mm in height;

• Prepare instructions for infant or follow-up formula in a powdered form stating among other things that:
  a) Powdered formula is not sterile and may be contaminated with pathogenic microorganisms during the manufacturing process or may become contaminated during preparation
  b) In the case of follow-up formula, states that the product shall not be used for infants less than six months old or used as the sole source of nutrition of infants in characters in accepted size and font.

Feeding bottle and teat packaging is also mandated to hold the label about breastfeeding being the best — a source of protection against illnesses in both Urdu and English.

The law bars companies from producing and disseminating any kind of informational or educational content related to breastfeeding or infant nutrition. Other entities or organisations that do so must submit a copy for approval with the Board.

Such awareness and nutrition sessions are a successful aspect of demand generation for companies. Nestle Pakistan, for example, organises sessions on ‘nutrition awareness’ for women in rural areas under its Rural Deep Outreach Programme, and this has resulted in significant demand generation for its products, specifically Cerelac and Bunyad in rural areas.

Breastfeeding practices and importance

The WHO and Unicef recommend exclusive breastfeeding for the first six months of a child’s birth. They also recommend early initiation of breastfeeding (within an hour of the child’s birth). During the immediate minutes and days after a baby’s birth, the mother produces colostrum, which significantly improves the chances of a baby’s survival, providing much-needed nutrition and immunity.

Additionally, it also stimulates breastmilk production with the release of prolactin and ejection of milk through oxytocin and has an overall positive impact on the duration of breastfeeding. Crucially, the release of these chemicals also prevents brain haemorrhage of the mother.

According to the Pakistan Demographic and Health Survey, early initiation of breastfeeding is crucial for the mother. It stimulates uterus contraction and prevents postpartum blood loss. According to Dr Farah Hasnain, Head of Gynaecology at Karachi’s Civil Hospital, “Breastfeeding is not just essential for the baby, it is also important for the mother. It reduces their chances of breast cancer.”

“The Western world, which started the phenomenon of top feed is now coming back to [promoting] breastfeeding,” she reasoned. Apart from the physical benefits of breastfeeding, Dr Hasnain also pointed out that babies who have been breastfed have higher intelligence quotients (IQs) than babies who have been fed formula.

After six months of exclusive breastfeeding, medical experts advise introducing complementary food at the age of six months while continuing breastfeeding until the child turns two years old.

To encourage healthcare facilities worldwide to promote breastfeeding, the WHO and Unicef launched the ‘Baby-Friendly Hospital Initiative’ (BFHI) in 1992. To become a WHO-recognised baby-friendly hospital, hospitals must follow the “Ten steps to successful breastfeeding” laid out by the WHO. This includes actively counselling mothers on the importance of breastfeeding and how to breastfeed, complying with the code of marketing breast milk substitutes, and counselling mothers on the risks of bottle feeding, among other steps.

Dr Nadia Nawaz is a consultant gynaecologist at Ziauddin Hospital and Mamji Hospital. She said that while bigger and more renowned hospitals across Karachi and Sindh are members of the BFHI, the initiative still requires a long way to go. “Smaller hospitals and clinics should also enlist themselves as baby-friendly hospitals,” she said. Ziauddin and Civil Hospital are among the few baby-friendly hospitals in Karachi.

Why does Sindh need a breastfeeding law — when it already has one?

Malnutrition

To answer this question, it is perhaps best to look at some numbers.

According to the National Nutrition Survey (NNS) of Pakistan (2018), over half the children in Pakistan under five are anaemic. Moreover, 40.2 per cent of all children under five are stunted (suffer from chronic malnutrition), 17.7pc are wasted (suffer from acute malnutrition) and 28.9pc are underweight. Wasting in children increased from 15.1pc in 2011 to 17.7 in 2018 — the highest it had ever been. A survey in Pakistan’s flood-affected areas following 2022 showed that the issue had exacerbated to a more severe, even life-threatening extent.

The graph above shows that the stunting, wasting and underweight children under five rate in Sindh is higher than the national average. Below is a breakdown of the rates by region.

Wasting remains highest in Sindh across all provinces at 23.3pc. The prevalence of underweight children in Sindh is also the highest at 41.3, a significant leap from all other provinces.

Breastfeeding

The NNS found that only 45.8pc of children are breastfed within an hour of birth in Pakistan. While this improved by six percentage points from 2011, the number is severely low; 48.4pc children are exclusively breastfed to the age of 6 months, 68.4pc are breastfed up to the age of one year — compared to 77.3pc in 2011 — and 56.5pc up to the recommended age of two years.

The first 1,000 days of a baby’s life, from conception to the womb until after birth are considered to be critical in the development of the child. The Unicef states in a survey report on infant and young child feeding (IYCF) practices in Sindh (2017): “The damage done is irreversible and reaches into the future, though it is also entirely preventable during the first 1000 days ‘window of opportunity’. The right nutrition during the 1,000 days between a mother’s pregnancy and the child’s second birthday can save lives and enable children to reach their full potential.”

Breastfeeding alone could reduce infant mortality, malnutrition and many other child health issues in Sindh, according to Unicef, experts and the Sindh government.

Dr Nawaz explained that she always prioritises and encourages breastfeeding. However, there are some exceptions where this is not possible and bottle-feeding becomes necessary, for example, if the mother is in the ICU, has twin babies for whom the milk is insufficient, etc.

Dr Hasnain explained that the only two major scenarios where mothers are advised against feeding their child is when they have herpes of the nipple — which can be transmitted to the baby — or if they have an active HIV infection, both of which are rare occurrences. However, with the latter, if the viral load is low, the mother can still breastfeed if the child is given a low HIV supplement: “Diarrhoea is a bigger cause of death in our part of the world than HIV.”

Diarrhoea is a leading cause of infant mortality in developing nations across the world. Of every 1,000 child deaths in Pakistan, 74 deaths are attributed to diarrhoea — the third-highest rate of diarrhoea-related deaths in children across the world.

The corporations fight back

Following the publication of the Sindh Breastfeeding Act in the Gazette, five companies directly or indirectly involved in manufacturing, packaging, distributing or marketing infant formula filed a petition in the Sindh High Court challenging the Act, a copy of which is available with Dawn.com.

The companies include Nutrico Morinaga, Global Brands Marketing — marketing partner for Meiji Milk — Searle, IBL Healthcare and Nestle Pakistan. The companies are being collectively represented by the Baby Food and Nutrition Council.

The petition claims that the Act goes beyond national and international regulations, terming it a “draconian departure” from existing laws. Commenting on the law, the BFNC spokesperson stated: “We believe that due process of law was not adhered to and that all provincial laws should be in harmony with the existing Federal Breastfeeding Law known as the Protection of Breastfeeding & Child Nutrition Ordinance 2002 and Rules 2009, and succeeding Provincial Breastfeeding Laws that follow the WHO Code.”

It remains ambiguous how amendments can be taken forward to cater to existing situations while remaining in line with the previous law.

The BFNC said that infant formula is already regulated and the baby feed industry “shares the goal of ensuring that infants and children have the best possible nutrition for their healthy growth and development.” However, the BFNC also stated, somewhat contradictorily: “We support ‎efforts by national authorities to ensure WHO Code compliance and promote environments that are conducive to breastfeeding and optimal child nutrition including through well-drafted and well-implemented legislation which follows due legal process and involves all relevant stakeholders including healthcare practitioners.”

This becomes contradictory when the petition to the Sindh High Court ends with the following in the Prayer section: an expression of asking the Court to permanently restrain the government from taking any action that interferes with the smooth business operations of the company, disruption of sales, promotion and distribution of products in the market.

The right to conduct business?

The companies collectively state that the legislation infringes on the fundamental right to conduct business as guaranteed by Article 18 of the Constitution.

The petition states: “The impugned legislation places excessive restrictions and unbridled prohibitions on the petitioners against the stocking, sale, distribution, and promotion (including educational material) of their products such that it infringes upon the fundamental guarantee afforded to the Petitioners in freely carrying out business under Article 18 of the Constitution.

“A bare reading of Sections 11, 12, 13 and 14 along with several other provisions of the impugned legislation would highlight the extent of the restrictions and difficulties created for the petitioners which have the effect of causing a complete cessation of sale, promotion, and distribution of the petitioners’ products in the province of Sindh and beyond.”

The companies state that despite meeting with a BFNC delegation, their demands were not taken into consideration and the law was notified in the Gazette without deliberation of their demands, as well as those of the Governor of Sindh, Kamran Tessori.

Soomro clarified that the law was made in collaboration with and according to the guidelines of WHO and Unicef and also kept the BFNC in the loop. “The counsel general of Meiji also came to meet with us and I told him, ‘We are not against the industry. But we want to and we will protect our children. We cannot compromise on the basic principle of health. If a mother is unable to breastfeed and if a doctor prescribes formula milk to her, by all means, she can do so’.”

Governor assent

A major roadblock to the now-enacted law is the question of the Governor’s assent. The Act states that the breastfeeding bill was passed on July 13, 2023, in the Sindh Assembly, which was then sent to the Governor by the Chief Minister’s Secretariat on July 21 for his assent. The Constitution requires the Governor to respond within 10 days, failing which his assent can be assumed and the Bill can be passed as an Act — as stated in Article 116 of the Constitution.

The Act states that the Governor responded on August 11, going 11 days over the deadline afforded to him by law. Thus, due to the delay, the Act was passed in the Sindh Legislature. The Act was then published in the Gazette on Sept 20.

The lawyer for the petitioners, Advocate Arshad Tayebaly, stated that the governor returned the bill without his assent on August 7, and given that the assembly’s term was valid till August 11, it should have been put forward for discussion. Additionally, he also questioned how the Act was published in the Gazette despite the assembly’s tenure coming to an end on Aug 11, after which a caretaker government had assumed power.

The petition states: “The Impugned Legislation is liable to be set aside having been passed in an illegal manner in contravention of Article 116 of the Constitution … The Impugned Legislation has been passed in a mischievous manner post-dissolution of the provincial assembly and is liable to be struck down on this score alone.”

Inter-provincial coordination

The World Health Assembly passed a resolution titled the International Code of Marketing of Breast-Milk Substitutes in 1981. In 2002, Pakistan passed the Protection of Breastfeeding and Young Child Nutrition Ordinance, 2002. In 2010, following the passage of the 18th amendment, which called for the devolution of power from the federal government to provincial governments, the four provinces passed their own — mostly uniform — breastfeeding laws in line with federal legislation and international guidelines.

The petition states that the companies have welcomed and adhered to breastfeeding and nutrition laws in Pakistan under the WHO Code, the 2002 Ordinance and subsequent provincial legislation as well as the federal Protection Of Breast-Feeding Rules, 2009.

However, the petitioners state that the Sindh 2023 Act takes a step forward and deviates from the current laws and international principles.

They also profess that the Bill required the deliberation and approval of the Council of Common Interests (CCI) and the Ministry of Inter-Provincial Coordination (IPC). The CCI is a constitutional body that works to resolve disputes of power-sharing between the federation and its provinces under the IPC. The IPC works to ensure coordination and uniformity in policy-making and implementation in provinces across Pakistan.

The petitioners state that the Act goes beyond its legal competence in multiple ways. Firstly, they state that it is bound to create supply chain issues across Pakistan and should have been referred to the CCI. “The Impugned Legislation is a drastic departure from the regime under the 2013 Act and the uniform legislation in other provinces, which ought not to have been passed without proper consultation and consideration of the stakeholders i.e., the Petitioners and the consumers.”

Secondly, since it places restrictions on advertising and broadcasting, it falls under the domain of the federal government. They also mention that the provision of designated products only being sold at pharmacies is likely to disadvantage people living in non-urban areas where pharmacies and authorised sales points may not be abundant.

Interestingly, on August 1, the Ministry of National Health Services, Regulations and Coordination recommended the federal government follow the Sindh assembly’s footsteps concerning the breastfeeding law. A federal health ministry official reported that the BFNC wrote to then Prime Minister Shehbaz Sharif about the lack of provincial coordination in the law and to bring the previous laws under the CCI’s attention to harmonising local laws. However, the health ministry affirmed that the Sindh law is made under the WHO’s recommendations and will soon be harmonised, not by repealing the Sindh law but by modifying the federal law as well as respective provincial laws in line with the WHA’s recommendations.

The illusion of choice and inability

Dr Naveed Bhutto, a nutrition and health consultant working with the Government of Pakistan, stressed the need for restrictions on the marketing of breastmilk substitutes. “When companies conduct market research, they go into communities to see how they can play with the minds of people, what specific points they can use that will attract consumers.”

For a significant number of mothers who choose to top feed, it is an alternative they have to opt for due to difficulties in breastfeeding.

Alina*, a mother of two from Karachi explained that with her first child, the gynaecologist advised her to bottle-feed alongside breastfeeding from day two of her child’s birth as the feed was not sufficient and her child was not satisfied. Alina believes that breastfeeding only needs to be discussed with a gynaecologist if the mother is struggling, otherwise, there is no reason to. Her second child has been bottle-fed since birth.

Fatima*, also a mother of two from Karachi, was only able to breastfeed her first child for about seven months because her milk supply naturally diminished over time. While her gynaecologist generally encouraged breastfeeding, it was not something they discussed in detail, before or after shifting to top-feed. Fatima did not feel the need to ask her gynaecologist because it was something she did not enjoy and was comfortable shifting to top-feed. “I didn’t discuss any of this with the doctor as it should be a mom’s decision only, whatever she is comfortable with,” said Fatima.

On appointments with her child’s paediatrician, the doctor only asked whether the child was breastfeeding or top-feeding, but in both children’s cases, he did not try to change, influence or shame her decision in any way.

Her second child, however, was breastfed till two years of age. Fatima observes that her second child has better immunity and built as compared to her first, who got sick more regularly, especially during her younger years.

Dr Hasnain explained that in many situations, mothers — especially first-time mothers — do not know and are not taught to breastfeed properly. This includes the position of the child while breastfeeding and the duration of each session. “The areola, where the lactiferous ducts are ending needs to be put in the baby’s mouth. Without this, the milk is ejected and mothers believe their milk is not sufficient. Mothers must also be advised to drink plenty of fluids and milk during their breastfeeding period.”

She stressed that for each session, a baby should be breastfed for at least 10-20 minutes. “What happens is, a baby feeds for a couple of minutes and goes to sleep. After a while, the baby wakes up crying because its stomach is not full.” This leads mothers to think that their milk is not sufficient.

Dr Nawaz concurs. “Mothers give up too easily, especially first-time mothers in the beginning. They become disappointed thinking the child is rejecting their milk. Breastfeeding requires effort to get used to, bottle-feeding is relatively easier for the babies to take. Unfortunately, we don’t have lactational or breastfeeding consultants in Pakistan to guide them properly.”

Dr Bhutto also said that formula companies use this as an area to market their product. They implicitly market that when babies cry in the middle of the night, it’s because breastmilk is not fulfilling the baby’s needs and should be accompanied by formula milk, he said.

However, even with the existence of consultants, the issue of quality healthcare across Pakistan, especially in rural areas remains a disproportionate issue where regular access to gynaecologists and paediatricians remains limited. In cases where availability is not an issue, lack of public discourse and information, as well as misinformation becomes another barrier.

Dr Nawaz has noticed over time that due to awareness, mothers do look forward to breastfeeding more in recent years. However, setbacks like this, advice by others or paediatricians to switch to formula and the lack of structural accommodation for working mothers such as daycares or flexible working hours make it increasingly difficult for them to stick to their decision.

Dr Bhutto, commenting on the national landscape, said that while infant formula was more widely used in urban areas in yesteryears, companies have expanded their reach to every small town today. “From Keenjhar to Karachi to Kashmore, you will find formula at every small store in Pakistan,” he said.

Additionally, companies incentivise small clinics and health workers by ‘helping’ them furnish or build clinics, provide equipment, fund foreign seminars and trips etc.

“If 200-300 mothers a month are being told their milk is not enough and that they should feed formula side by side, multiply that by a year and the number of clinics across the country partaking in this practice,” he said.

The cost of misinformation and poverty

Awareness and education on the benefits of breastfeeding, or rather, the risk of not exclusively breastfeeding for the first six months remains a significant issue in Pakistan. Marketing and normalisation of breastmilk substitutes majorly contribute to mothers internalising that their milk is not the best source of nutrition they can provide to their children.

Dr Hasnain explained that in most cases, parents who opt for bottle-feeding do not adhere to safe practices, such as sterilising bottles and teats. The water available to use with infant formula too is unsafe for children in most cases, causing diarrhoea.

Additionally, the cost of formula milk causes caregivers to reduce the amount of formula diluted with water to make it last longer. Soomro agreed, stating that mothers are made to believe that formula milk is beneficial for children and it becomes a huge financial cost for families.

“It’s not really a choice when parents are misguided,” said Dr Bhutto.

Since the cost of formula milk is high and caregivers want to provide additional nutrition, they also opt for cow milk. This is highly dangerous as cow milk is very high in fats that babies are not able to digest, causing diarrhoea. Additionally, Dr Hasnain also pointed out that many cows in Pakistan are not vaccinated, exposing infants to a range of infections and viruses including tuberculosis.

“Only the upper and upper-middle classes can afford formula in its proper dilution quantity,” she said. For others, this becomes a life-endangering issue whilst trying to do what is best for their child.

Soomro also explained that unregistered and unregulated infant formula is also available in markets, sold at cheaper rates, which the Act aims to counter.

Dr Hasnain welcomes the new initiative by the Sindh government to allow formula milk to be sold at pharmacies. She believes that it should only be sold with a doctor’s prescription, however, she also pointed out the lack of implementation of regulation on prescription-based drugs which can be easily available to consumers. Thus, there is a need to strengthen the implementation of the law as much as the law itself.

The law awaits its fate in the SHC. When asked whether he sees the possibility of amendments to be made to the Act, Soomro said that the Act in its current form is in the best interest of the children and future generations of Sindh and should remain in its current form.

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*Names have been changed to protect identity.

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