In 2011-12 the APMAIF commenced work on a number of important areas of the application of the MAIF Agreement and its interpretations.
Issues relating to internet based material have increased over the reporting period and the APMAIF has worked with industry to ensure that a consistent approach to internet based material is achieved. The APMAIF has also undertaken a revision of the Complaints Handling Process (CHP) to accentuate the fairness and transparency of its procedures. In addition to this, the APMAIF has established a review of the Interpretation Guidelines to ensure there is a clear understanding of the intent and meaning of clauses in the MAIF Agreement.
|Other items discussed|
|78th||18 August 2011||Nil||
|79th||17 November 2011||2 new||
|80th||16 February 2012||Nil||
|81st||17 May 2012||2 new||
Meetings with MAIF Agreement SignatoriesThe APMAIF meets with Signatories to the MAIF agreement annually to discuss activities in the previous year, the operation of the agreement and any issues of interest or concern.
|Signatories meeting||17 August 2011||
Interpretation GuidelinesIn accordance with its Terms of Reference, the APMAIF, from time to time, develops guidelines on the interpretation and application of the MAIF Agreement.
In the interests of consistency when considering a complaint, the APMAIF will consider past guidelines on the interpretation and application of the clauses of the agreement that are relevant to the complaint. Past guidelines are made available on the APMAIF website as a reference source for stakeholders.
The use of past interpretations of the MAIF AgreementFormal guidelines on the interpretation of the MAIF Agreement often provide a useful benchmark to industry and signatories in determining the acceptability or otherwise of certain marketing activities. However, the guidelines do not form part of the MAIF Agreement and do not substitute for the APMAIF’s ongoing task of analysing and assessing complaints on their individual merits on a case-by-case basis. This means that past interpretation guidelines should not be viewed as stand-alone requirements, but must always be viewed in the context of the relevant clause(s) of the MAIF Agreement.
The guidelines should not be considered to be exclusive or exhaustive – for example, where a guideline records that a specific activity is inconsistent with the MAIF, it should not be assumed that other activities are thereby consistent simply because they were not included in the guideline.
Continuing Review of interpretations of the MAIF AgreementThe APMAIF is undertaking a review of the interpretation guidelines with a view to modernising a number of aspects and ensuring they are relevant to a contemporary marketing environment.
At the August 2010 APMAIF meeting, the panel conducted a preliminary review of past interpretations of the MAIF Agreement and agreed in principle that:
- in accordance with the APMAIF’s third term of reference, the interpretations should be referred to as “guidelines on the interpretation of the MAIF Agreement” and should be expressed in guideline-style terminology;
- there is a need to inform stakeholders about the nature and purpose of the Interpretation Guidelines; and
- industry should be actively engaged on issues that arise during the process of reviewing the Interpretation Guidelines to ensure a mutual understanding of the changed introduced.
During the current reporting period the Panel has re-evaluated a number of more complex issues in the Guidelines in the light of changes to the marketing environment and in community expectations. The most substantive of these was the creation of Guidelines concerning the marketing of infant formula in the context of electronic media (which is discussed separately).
In addition the Panel began a review of its Guidelines relating to interactions with health care professionals. The aim is to provide clearer and more useful guidance for the application of clauses 4, 5 and 7 of the MAIF Agreement particularly as they concern what are acceptable interactions between the infant formula company signatories and health care professionals. As part of this process industry has provided its own policy on ‘Guidance on Interactions with Healthcare Professionals’. The Guidelines on this matter will be finalised in 2012-13.
APMAIF is continuing the process of review of the interpretation guidelines.
A copy of the APMAIF Interpretations of the MAIF Agreement can be found on the APMAIF site on the Department’s website and at Appendix B.
Electronic Media MarketingIn November 2010, the APMAIF completed its deliberations on a complaint regarding the content of a manufacturer’s website. Given the complexity of the issue and the absence of any relevant interpretation guidelines, , the APMAIF decided to provide an industry-wide, rather than company-specific, response. It concluded that as material on manufacturers’ websites is available to the general public, the requirements of the MAIF Agreement regarding information intended to reach parents and pregnant women would apply. Consistent with the MAIF Agreement, material made available on manufacturers’ websites should be informational in nature and include, material relating to breastfeeding.
Following discussion with industry, the APMAIF agreed that the internet and social media forums should be treated in the same way as other forms of communication. There should be a common fundamental standard, ensuring that the ‘breast is best’ message is displayed before infant formula information is displayed. At the 80th meeting in February 2012 the APMAIF agreed to a new set of interpretations on electronic media marketing. The APMAIF will continue to engage with industry regarding the Guidelines with any changes to be reported on in the 2012-13 reporting period.
The current version of the Electronic Media Marketing Guidelines is at Appendix C.
Complaints Handling ProcessIn 2008, the APMAIF revised its Complaints Handling Process (CHP) to accentuate the transparency and fairness of its procedures. As part of this revision, an extra step was added to the CHP so that companies who are the subject of a complaint under APMAIF consideration are routinely given the opportunity to respond to any preliminary concerns of the panel before a decision is reached. This additional consultation step applies to the handling of all complaints when a ‘not in breach’ decision cannot be reached at the first consideration.
The wording of this additional step to the process was drafted on the basis of legal advice and, in its summary form, is expressed as follows:
Company informed that there is insufficient information to determine that there has been no breach [of the MAIF Agreement] and invited to respond.
The APMAIF became aware of a lack of clarity around the meaning of the so-called “double negative” contained within this wording.
In response to this, the APMAIF offered the following clarification:
The phrase “insufficient information to determine that there has been no breach” was included in the Complaints Handling Process on the basis of procedural fairness, and is intended to protect the subject company from either the reality or the perception of a premature determination. The phrase does not imply that there is insufficient information to make any determination, but rather advises a subject company that although no determination has yet been made, the balance of currently available evidence has failed to convince the APMAIF that no breach has occurred and therefore the potential for an ‘in breach’ decision remains. The company is then invited to provide any further evidence that it may wish the APMAIF to consider in conjunction with the existing evidence when the Panel makes its final determination.
At the November 2011 APMAIF meeting the panel agreed that an explanatory note as drafted by the legal expert be included in Step 3 of the CHP. The wording of the explanatory note to clarify Step 3 has been finalised as the following:
(The purpose of Step 3 of the Complaints Handling process is to ensure that the Company is provided with an adequate opportunity to respond to evidence available to APMAIF and to any preliminary view expressed by APMAIF, prior to a final determination being reached in accordance with Step 4.)
Any need to further clarify this terminology will be monitored during 2012-13.
The current version of the CHP is at Appendix D.
Guidelines for addition of new members to the MAIF AgreementDuring May 2011 the APMAIF secretariat was contacted by a company wishing to become a signatory to the MAIF Agreement. APMAIF believes that all opportunities should be taken to encourage manufacturers and importers of infant formula products to sign the agreement. As a result it was agreed that it would be useful to clarify the process required to join the MAIF. The outcome of this activity will be presented in the 2012-13 Annual Report.
Submission to the National Health and Medical Research Council (NHMRC) concerning the revision of the Infant Feeding GuidelinesThe APMAIF provided a submission to the NHMRC in December 2011 regarding the review of the Infant Feeding Guidelines for Health Workers. The Panel reviewed the document and provided comments in relation to the purpose and role of the MAIF Agreement and the WHO Code, the relationship between the MAIF Agreement and the WHO Code and provided clarification to factual matters such as the voluntary, self-regulatory nature of the MAIF Agreement and sanctions when a breach of the MAIF Agreement occurs.
Review of the MAIF AgreementTo ensure the operation and processes of APMAIF continue to support breastfeeding and infant health information in a modern marketing and regulatory environment, the Department of Health and Ageing engaged the Nous Group to complete a ‘Review of the effectiveness and validity of the operations of the MAIF Agreement’ (the Review).
The methodology for the review included stakeholder consultation via a number of methods involving survey and telephone interviews. All members of APMAIF were briefed on the process and contributed individual comments to the reviewers.
The Review assessed:
- the effectiveness of the MAIF Agreement in achieving its stated aim;
- the effectiveness of the APMAIF in ensuring industry compliance with the MAIF Agreement; and
- the efficiency, transparency, cost-effectiveness and appropriateness of APMAIF processes and governance arrangements.