Pharmaceutical and

Health Care Association

of the Philippines vs.
Duque III
(Austria-Martinez, October 9,
2007)
Nature:
Special Civil Action in the
Supreme Court. Certiorari
Petitioner:
Pharmaceutical and
Healthcare Association of the
Philippines
Respondents:
DOH Sec. Francisco Duque
III, DOH Undersecretaries Dr.
Ethelyn Nieto,Dr. Margarita
Galon, Atty.
Alexander Padilla and
Dr. Jade
Del Mundo; and Asst.Secret
aries Dr. Mario Villaverde, Dr.
David Lozada and Dr.
Nemesio Gako
Facts:
-
Executive Order No. 51 (The
Milk Code - TMC) was issued
by Pres. Aquino on Oct.28,
1986 by virtue of the
legislative powers granted to
her under the
FreedomConstitution.
(1)
One of the preambular
clauses of TMC the law
seeks to give effect to
Article11 of the International
Code of Marketing of
Breastmilk Substituttes
(ICMBS),a code adopted by
the WHA (World Health
Assembly) in 1981.
-
In 1990, the Philippine ratified
the International Convention
on the Rights of theChild. Art.
24 of the instrument
mandates that States should
take measure todiminish
infant mortality
and should ensure that
all segments
of society areinformed of the
advantages of breastfeeding.-
From 1982 2006, the
WHA adopted several
resolutions to the effect
thatbreastfeeding should be
supported, promoted and
protected, hence, it should
beensured that nutrition an
d health claims are not per
mitted for breastmilksubstitu
tes.
-
May 15, 2006 DOH issues
the assailed RIRR (Revised
Implementing Rules
andRegulations of E.O. 51 or
A.O. No. 2006-0012) which
was to take effect on July
7,2006. The RIRR imposes
a ban on all advertisements
of breastmilk substitutes-June
28, 2006 Petitioner
filed the present Petition for
Certiorari and Prohibitionwith
Prayer for the Issuance of a
TRO or Writ of Preliminary
injunction.-August 15, 2006
the Court issued a
Resolution granting the
TRO, enjoining
therespondents from
implementing the assailed
RIRR.-
Petitioner assails the RIR
R for going beyond the
provisions
of TMC therebyamending
and expanding the coverage
of the said law.
-
DOH meanwhile contends that
the RIRR implements not only
TMC but also
variousinternational
instruments regarding infant
and young child nutrition.
They positthat the said
international instruments are
deemed part of the law of the
land andtherefore may be
implemented by the DOH in
the RIRR.
Issue:
W/n the RIRR is
unconstitutional?
Sub-issue(s):
W/n the RIRR is in accord
with TMC? W/n
pertinent internationalagree
ments entered into by the
Philippines are part of the law
of the land and may thusbe
implemented through an
RIRR, if so, is the RIRR in
accord with such
internationalagreements?Not
e: I focused on the parts on
international law. The other
matters (in case maamasks)
are at the bottom of the digest.
Held:
No. However what may be
implemented is the RIRR
based on the Milk Codewhich
in turn is based on the ICMBS
as this is deemed part of the
law of the land. Theother
WHA Resolutions however
cannot be imposed as they
are not deemed part of thelaw
of the land.
Ratio:
1.Are the international
instruments referred to by
the respondents part of the
law of the land?-The
various international
instruments invoked
by respondents are:(1)The
UN Conventions on the Rights
of the Child
(2)
The International Convenant
on Economic, Social, and
Cultural Rights(3)Convention
on the Elimination of All Forms
of Discrimination Against
Women
-
These instruments only
provide general terms of the
steps that States must taketo
prevent child mortality. Hence,
they do not have anything
about the use andmarketing of
breastmilk substitutes
-
The ICMBS and other
WHA Resolutions however,
are the international
instrumentswhich have
specific provisions on
breastmilk substitutes-Under
the 1987 Constitution,
international law can
become part of domestic
lawin 2
ways:(1)Transformation an
international law
is transformed into
a domestic lawthrough a
constitutional mechanism
such as local legislation

Treaties become part of law
of the land through this
method, pursuant toArt 7, Sec
21 wherein no treaty or
international agreement shall
bevalid.. unless concurred by
at least 2/3 of Senate

The ICMBS and WHA
Resolutions are NOT treaties
as they havent
beenconcurred in by the
required 2/3 vote.

HOWEVER, the ICMBS has
been transformed into
domestic law throughlocal
legislation that is TMC.

Therefore, it is not the ICMBS
per se that has the force of
law butits TMC.
o
While TMC is almost a
verbatim reproduction of the
ICMBS, it didnot adopt the
latters provision on the
absolute prohibition
onadvertising of products
within the scope of
the ICMBS. Insteadthe MC
provides that advertising
promotion or other
marketingmaterials may be
allowed if such materials are
approved by acommittee.
(2)
Incorporation by mere
constitutional
declaration, international
law isdeemed to have the
force of domestic law

This is found under Art 2,
Sec 2 The Philippines
adopts generallyaccepted
principles of international law
as part of the law of the land