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Brief facts as narrated by querist


Exparte

Indian Medical Association Hqrs

Querist

Brief facts as narrated by querist:

Querist has received a letter dated 20.01.2015 by ‘Infant & Young Child Feeding Chapter Of Indian Academy Pediatrics’, whereby it was stated that one of the proactive and senior member of the association, unwillingly refused to be the faculty and deliver lecture at the program, because the program was sponsor by Abbott [a company which produce Infants Milk Substitute, as one of the product] and the logo of Abbott was displayed on the documents and brochure of the program.

In the above facts, Querist has raised the following question.

  1. Whether taking any sponsorship by a company, whose one of the product is Infants Milk Substitute, with printed logo of the said company on the documents and brochure of the program, is in violation of Infants Milk Substitutes Act, 1992?
  2. Whether, use and display of logo or name of the company [which manufactures or produce Infants Milk Substitute] on any product [eg. cup, mug, letter pad, posters etc], is a violation of Infants Milk Substitute Act, 1992?

To examine the question raised by the querist, a global search on law is been conducted and the following are been examined:-

  1. Infants Milk Substitutes Act, 1992.
  2. Letter dated 20.01.2015 by ‘Infant & Young Child Feeding Chapter Of Indian Academy Pediatrics’.
  3. Letter dated 07.03.2015 by Dr. D K Aggarwal.
  4. Abbott Company’s website.

 

INFANTS MILK SUBSTITUTES ACT, 1992.

Section 2(g): infant milk substitute” means any food being marketed or otherwise represented as a partial or total replacement for mother's milk, for infant up to the age of two years.

Section 3: Certain prohibitions in relation to infants milk substitutes, feeding bottles and infant foods.

No person shall

  1. advertise, or take part in the publication of any advertisement, for the distribution, sale orsupply of infant milk substitutes, feeding bottles or infant foods; or
  2. give an impression or create a belief in any manner that feeding of infant milk substitutesand infant foods are equivalent to, or better than, mother's milk; or
  3. take part in the promotion of infant milk substitutes, feeding bottles or infant foods;

Section 4: Prohibition of incentives for the use or sale of infant milk substitutes or feeding bottles or infants foods.

No person shall

  1. supply or distribute samples of infant milk substitutes or feeding bottles or infant foods gifts of utensils or other articles; or
  2. contact any pregnant woman or the mother of an infant; or offer inducement of any other kind,
  3. for the purpose of promoting the use or sale of infant milk substitutes or feeding bottles or infant foods.

Section 5: Donation of infant milk Substitutes or feeding bottles or infant foods or equipment or materials relating thereto:

Subject to the provisions of sub-section (4) of section 8, no person shall donate or distribute

  1. infant milk substitutes or feeding bottles or infant foods to any other person except to an orphanage;
  2. any informational or educational equipment or material relating to infant milk substitutesor feedingbottlesorinfantfoods;

Provided that nothing in this clause shall apply to the donation or distribution, subject to suchconditions and restrictions as may be prescribed, of such equipment or material through thehealthcaresystem.

Section 8: Health care system

(1). No person shall use any health care system for the display of placards or posters relatingto, or for the distribution of, materials for the purpose of promoting the use or sale of infantmilksubstitutesorfeedingbottlesorinfantfoods:

Providedthattheprovisionsof thissub-sectionshallnotapplyto-

a.    the donation or distribution of informational or educational equipment or material madeinaccordancewiththeprovisotoclause(b)of section5;and

b.    the dissemination of information to a health worker about the scientific and factual matters relating to the use of infant milk substitutes or feeding bottles or infant foods alongwiththeinformationspecifiedinsub-section(1)of section7.

(2). Nopersonwhoproduces,supplies,distributesorsellsinfantmilksubstitutesor feedingbottles or infant foods shall make any payment to any person who works in the health caresystemforthepurposeof promotingtheuseorsaleofsuchsubstitutesorbottlesorfoods.

(3).      No person, other than a health worker, shall demonstrate feeding with infant milk

(4).      No person, other than an institution or organisation, engaged in health care for mothers, infants or pregnant women, shall distribute infant milk substitutes or feeding bottles to amother who cannot resort to breastfeeding and who cannot afford to purchase infant milksubstitutesorfeedingbottles.

(5).      An orphanage may purchase infant milk substitutes or feeding bottles at a price lowerthantheirsalepriceforthepurposeof utilizing theminthesaidorphanage.

Section 20: Penalty

  1. Any person who contravenes the provisions of section 3,4,5,7,8,9,10 or sub-section (2) of section 11 and the rules made under section 26 of the Act shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both.
  2. Any person who contravenes the provisions of section 6 or sub-sector (1) of section 11and the rules made under section 26 of the Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than two thousand rupees.

Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for 44 Law 2, a term which shall not be less than three months but which may extend to two years and with fine which shall not be less than onethousandrupees.

OBSERVATION:

It is respectfully submitted that all the sections stated above are in relation to Infants Milk Substitute and/or feeding bottle i.e. the product. It is also clear from the provisions of the IMS Act, that there is no prohibition on the advertisement of/ sponsorship by the company. The IMS act is in relation to the product i.e. Infant Milk Substitute or feeding bottle and not in relation to company, who is manufacturing many products out of which Infant Milk Substitute is one of the products. Abbott is a company which is manufactures many products, out of which Infant Milk Substitute is one of the products. The sponsorship by Abbott or logo of Abbott [or any other company manufacturing Infant Milk Substitute] on the document and brochure of the program, is no way consider to be an advertisement/ promotion of the Infant Milk Substitute and thus the same is not in violation of the IMS Act.

CONCLUSION:

It is therefore our considered Legal Opinion that:

  1. Whether taking any sponsorship by a company, whose one of the product is Infants Milk Substitute, with printed logo of the said company on the documents and brochure of the program, is in violation of Infants Milk Substitutes Act, 1992?

    NO. Taking any sponsorship by a company, whose one of the products is Infants Milk Substitute, with printed logo of the said company on the documents and brochure of the program, is not in violation of IMS Act. The IMS Act is qua Infant Milk Substitute and/ or feeding bottle and not in relation to company.
     
  2. Whether, use and display of logo or name of the company [which manufactures or produce Infants Milk Substitute] on any product [eg. cup, mug, letter pad, posters etc], is a violation of Infants Milk Substitute Act, 1992?

    No - Our opinion is rendered accordingly

        NITESH JAIN
        MANAGING ASSOCIATE

        For
        asa