PHARMACEUTICAL & HEALTH CARE ASSOCIATION OF THE PHIL VS DUQUE, GR NO. 173034, OCT.

9, 2007

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 Intl 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 intl 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 intl agreements

MAIN: W/N the DOH acted w/o or in

Held:
Sub-issue:
Yes for ICBMS. Under 1987 Consti, intl 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 intl law that may be deemed part of the law of the land. For an intl rule to be
considered as customary law, it must be established that such rule is being followed by states because they
consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, 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 enacted 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 intl 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.
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.

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