SMA Nutrition, part of Wyeth, one of the world's biggest manufacturers of infant formula milk, was last week fined a total of £26 000 ($41 900; €37 200) and ordered to pay costs of more than £34 000 after being convicted of six separate breaches of illegal advertising direct to consumers.
In what is thought to be the first case of its kind, the company was prosecuted by Birmingham Trading Standards at Birmingham Magistrates Court. Judge Rod Ross described the company's breaches as “cynical and deliberate.”
A mother in Birmingham drew the Trading Standards' attention to the advertisement in Prima Baby magazine in July 2001. Further investigation found that the piece had been published five times in other magazines (Practical Parenting's Complete Guide to Pregnancy (July and September), Mother and Baby, Pregnancy (the essential guide from Newbaby), and Healthy Happy Pregnancy.
The Infant Formula and Follow On Formula Regulations 1995 and the Food Safety Act state that advertisements for infant formula for babies up to 6 months can be published or displayed only through the healthcare system, in a scientific publication, in a publication not widely available to the public, or for the purposes of trade before retail.
During the eight day trial the court heard how the company had placed an article six times in parenting magazines in 2001. Headed “advertisement,” it highlighted four ingredients that parents should look out for in an infant formula.
SMA Nutrition argued that the article was not an advertisement but an information piece, which is allowed by law providing the reader is not directed to a particular product. However, the only formula at that time that contained all those ingredients was SMA Gold. The advertisement also directed people to its helpline providing direct access between company employees and parents, which is forbidden under UK legislation.
The company argued that it had done all it could to avoid committing an offence. But, in his concluding statement, Judge Ross said it had “blatantly disregarded the advice of its own legal department” that the article might be regarded as an advertisement.
Professor Alan Lucas, an honorary consultant at Great Ormond Street Hospital for Children, called by the defence, said he found the SMA article “unexceptional” and that GPs and primary healthcare workers have a “poor understanding of infant feeding issues” and that “first time mothers often receive advice from the written media.”
However, Judge Ross said the company had “deliberately crossed the line to advertise to a vulnerable section of the public.” Nor did he accept the company's argument that the regulations as applied in this case restricted free movement of goods within the European Union.
The outcome was welcomed by breastfeeding organisations and pressure groups. Mike Brady, campaigns and networking coordinator of Baby Milk Action, said, 'It's a stunning victory for infants and mothers in this country, which I believe sets an important precedent and a warning to other companies with similar advertisements.”
SMA Nutrition is considering whether to appeal.