Review of the effectiveness and validity of operations of the MAIF Agreement:Research Paper

5.4 How efficient, transparent, cost-effective and appropriate are APMAIF governance arrangements?

Page last updated: 18 June 2012

Recommendations

14. The APMAIF’s Terms of Reference remain valid. The APMAIF should consider if any changes to the terms of reference are necessary to enable implementation of Recommendation 5.
15. Procedures for the appointment of members to the APMAIF should be reviewed and made publicly available. Consideration should be given to the inclusion of public advertising and application procedures for APMAIF positions.
16. The existing APMAIF composition (number and designation of members) is appropriate and should continue.

5.4.1 Suggestions were made to improve the clarity and appropriateness of APMAIF’s terms of reference

Review questionInsights
What is the level of clarity, comprehensiveness and appropriateness of the APMAIF terms of reference, and does the APMAIF fulfil these appropriately?Many stakeholders agreed that the APMAIF generally fulfils its terms of reference appropriately, although some suggested that the current terms of reference are vague and too narrow.

A number of APMAIF members, industry representatives and government representatives agreed that the APMAIF fulfils its terms of reference appropriately. Some stakeholders suggested that the terms of reference should be clearer and more definitive to reduce the hesitancy of the APMAIF and provide better direction. This would help manage the difficulties that arise through ideological differences between APMAIF members and pressure from both industry and consumer groups.

Some interviewed stakeholders expressed the opinion that the APMAIF terms of reference should be better aligned with the stated aim of the MAIF Agreement to protect breastfeeding. Others indicated that provision of advice about breastfeeding and infant formula should be provided by independent health professionals (e.g. nutritionists and child health nurses).

Table 14 outlines suggested improvements by stakeholders for each of the terms of reference.

Table 14: Suggested improvements to APMAIF terms of reference

Terms of referenceSuggested improvements
Receive and investigate complaints regarding the marketing in Australia of infant formula
  • Improved transparency and timeliness of all processes.
  • The APMAIF currently adopts a passive approach whereby complaints need to be received prior to investigations being initiated. The APMAIF should adopt a more-pro-active approach and be able to instigate investigations rather than merely waiting for complaints.
  • One stakeholder suggested that the APMAIF could initiate investigations, supported by a third party (potentially using capability within DoHA) to conduct the investigation. The matter could then be referred back to DoHA following investigation.
Act as a liaison point for issues relating to the marketing in Australia of infant formulas
  • The APMAIF could be more active and engage with a wider range of stakeholders.
  • The term ‘liaison’ has a broad interpretation and the scope has not been defined. For example, it is unclear whether the APMAIF should be contacting non-signatory companies and encouraging them to sign the MAIF Agreement.
Develop guidelines on the interpretation and application of the MAIF Agreement
  • Further guidelines on the interpretation of the MAIF Agreement should be developed.
  • Terms of Reference should also include the provision of education and advice regarding the MAIF Agreement and complaints handling process, resulting in a more transparent process.
  • Development of guidelines should be actively considered (e.g. sampling, digital media, inducements).
Provide advice to the Australian Government Minister for Health and Ageing, on the operation of the Agreement
  • The APMAIF could be more pro-active in the provision of advice.
  • There appears to be inadequate opportunity for the APMAIF to meet with either the Minister or Parliamentary Secretary to provide advice.
  • The APMAIF should provide advice to all government departments (both federal and state).
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Respondents to the targeted survey (n=17) and general survey (n=422) were asked about clarity, comprehensiveness and appropriateness the APMAIF’s current terms of reference. Results demonstrate:
  • Clarity - 83% of targeted survey respondents agreed (65%) or strongly agreed (18%) that the APMAIF’s terms of reference are clear. 56% of general survey respondents from consumer or consumer groups and 63% of health professional/ organisation respondents agreed that the terms of reference are clear.
  • Comprehensiveness – 65% of targeted stakeholders agreed (53%) or strongly agreed (12%) that the APMAIF’s terms of reference are comprehensive. Amongst general survey respondents, between 19-33% of respondents from each respective stakeholder group were unsure of the comprehensiveness of the terms of reference. More than half of remaining respondents disagreed or strongly disagreed that the terms of reference are comprehensive.
  • Appropriateness- 59% of targeted stakeholders agreed (53%) or strongly agreed (6%) the terms of reference are appropriate. A significant proportion of general survey respondents (between 16-67% of each stakeholder group) were unsure of the appropriateness of the APMAIF terms of reference. More than half the remaining respondents disagreed or strongly disagreed that the terms of reference are appropriate.
When prompted by the statement ‘the APMAIF fulfils its terms of reference appropriately’:
  • 65% of respondents from the targeted survey (n=17) agreed (59%) or strongly agreed (6%) with this statement
  • more than 34% of respondents from all stakeholder groups represented in the general survey (n=422) were unsure of their response to this statement. Amongst remaining respondents, there was a mixed response between stakeholder groups. These results are shown in Figure 9 below.
Figure 9: Survey statement: "Overall, the APMAIF fulfils its terms of reference appropriately" - general survey (n=422)

Figure 9 is a stacked bar chart depicting the results of a statement tested in the survey. The data represented in the chart is also included in the additional table below.


Consumer (n=299)
Consumer group (n=27)
Health professionals/ organisations (n=133)
Other (n=13)
Strongly disagree (%)
15%
16%
14%
17%
Disagree (%)
24%
20%
22%
33%
Agree (%)
17%
24%
28%
0%
Strongly agree (%)
1%
0%
2%
0%
Unsure (%)
43%
40%
34%
50%

Most stakeholders thought that the APMAIF generally fulfils its terms of reference. Many suggestions were received on:
  • how to clarify and/or strengthen the APMAIF’s interpretation of existing terms of reference
  • additional functions to be incorporated into the APMAIF’s terms of reference.
The utility of the suggested changes need to be considered in the context of the current fiscal environment. For any increase in function, a concurrent increase in funding is required. The calculation of these costs is beyond the scope of this review.
Wherever possible, the APMAIF should interpret its terms of reference as facilitating action rather than curtailing it. There are a number of actions that the APMAIF could undertake within its existing terms of reference and resources (with the assistance of the Secretariat), for example, the APMAIF could:
  • convene regular stakeholder engagement activities concurrently with their meetings. Ideally, these activities would bring together all stakeholders to address concerns and seek mutually agreeable outcomes. Alternatively, the APMAIF could meet with:
    • industry stakeholders to understand marketing trends and issues relating to the interpretation of the MAIF Agreement
    • other stakeholders to understand concerns with existing marketing practices.
  • initiate a dialogue with non-signatory companies to understand the barriers to participation.
It is appropriate that the APMAIF consults on and commits to adopting best practice in relation to complaints processing and guideline development (in particular in relation to the time taken to complete these processes).
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The APMAIF should be able to initiate investigations into industry practices beyond that allowed under the existing complaints process. This may not require greater powers to be provided to the APMAIF, rather, this could be effected through a change to its terms of reference to include this change in function.

If this change were to be implemented, the funding provided to the APMAIF should also be reviewed. Strengthening the terms of reference in this regard is likely to encourage participants to seek clarification whilst developing new marketing practices and strengthen overall compliance without resulting in a net increase in the resources required.

This approach is likely to identify the areas where updated interpretations and guidelines are required to support compliance and therefore address other suggested improvements to the terms of reference.

5.4.2 Stakeholders expressed concerns that formula-feeding mothers are not adequately represented on the APMAIF

Review questionInsights
Is the APMAIF composition (number and designation of members) appropriate to the APMAIF’s needs and objectives?
  • Some stakeholders are concerned that the current consumer representative does not adequately represent formula feeding mothers
  • There is concern that inclusion of an industry representative on the APMAIF presents a conflict of interest

The APMAIF membership categories and roles are outlined in Table 15 below.

Table 15: APMAIF member categories and roles

CategoryRole
APMAIF ChairThe APMAIF Chair leads the Panel in the adjudication of complaints and manages conflicting views concerning the implementation of the MAIF Agreement and the role of the APMAIF. The Chair takes the lead role in the duties of the Panel and maintains liaison with the Secretariat in progressing those duties.
Member with Legal ExpertiseThe Legal Expert provides a legal perspective in Panel deliberations, including interpretations of the scope and particular clauses of the MAIF Agreement. He or she contributes to Panel deliberations and decisions by demonstrating the following:
  • a good knowledge of the Competition and Consumer Act 2010;
  • a good knowledge of the legal implications of voluntary self-regulation agreements; and
  • knowledge of and an interest in infant nutrition.
Community and Consumer RepresentativeThe Community and Consumer Representative advocates on behalf of parents with infants or small children, and contributes to Panel deliberations and decisions by demonstrating the following:
  • an understanding of the issues faced by parents in feeding their babies and young children;
  • a balanced understanding of the reasons why some women may not be able to breastfeed successfully or for other reasons may choose to bottle feed their babies and small children;
  • a balanced view of the issues related to breastfeeding and bottle feeding; and
  • an understanding of the importance of the self-regulatory model of infant formula marketing within Australia.
Public Health and Nutrition ExpertThe Public Health and Infant Nutrition Expert provides a professional and/or scientific viewpoint and assists the Chair in focusing the Panel on these issues as they relate to the MAIF Agreement.
Industry RepresentativeThe Industry Representative is nominated by the Infant Nutrition Council (INC) and is appointed by the Parliamentary Secretary for Health. He or she liaises between the Panel and INC member companies and plays an important role in maintaining industry awareness of the responsibilities of signatories to the MAIF Agreement. He or she contributes to Panel deliberations and decisions by representing the views of INC member companies and working to maintain a cooperative relationship between the Panel and signatories to the MAIF Agreement.
Departmental ObserverA senior officer of the Australian Government Department of Health and Ageing attends all APMAIF meetings as an observer. The Departmental Observer provides advice to the Panel on matters of Government policy and advises the Minister for Health and Ageing on matters of governance for the APMAIF. He or she does not participate in APMAIF decision making.

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The Review found that the member categories and role descriptions, as outlined in Table 15, provide appropriate representation of stakeholder interests and support the APMAIF to execute the functions outlined in its terms of reference.

Amongst interviewed stakeholders there was a general consensus that the size and composition of the APMAIF and the expertise of its members, remains appropriate.

The Review recognises that ensuring appropriate representation on the APMAIF is a key factor for maintaining consumer confidence in the complaints handling process.

Breastfeeding and formula feeding sit within an infant feeding spectrum. Current policy on infant feeding supports the provision of accurate factual information to support appropriate nutrition for infants. It is appropriate for the APMAIF to include a member who understands and can appropriately represent the spectrum of infant feeding and therefore the interests of breastfeeding mothers as well as formula-feeding mothers, as well as those mothers that use a combination of these approaches.

Some stakeholders proposed that the interests of formula-feeding mothers could be better represented. The Review acknowledges that direct representation for formula- feeding mothers may be appropriate but that this would be difficult to achieve as there is no organised body similar to existing breastfeeding advocacy groups.

Inclusion of both a breastfeeding and infant-feeding representative on the APMAIF may be problematic, as strongly opposing views may hinder both the decision making process and effectiveness of the APMAIF. Rather, the Review found that the identified role of the Community and Consumer Representative allows for the appropriate representation of the spectrum of infant feeding and related issues and therefore no change is warranted.

Some interviewed stakeholders and general survey respondents perceived the inclusion of an industry representative on the APMAIF to be a conflict of interest. Some general survey respondents expressed concern that involvement of an industry representative in decision making may compromise the complaints process and that it would be more appropriate for the APMAIF to consist predominately of health professionals. One suggestion arising from the general survey was that the industry representative should be removed from the process of assessing breaches, but continue to be is still involved in the process of rectifying identified problems.

All APMAIF members are bound by strict guidelines including specific guidance in relation to real or perceived conflicts of interest (APMAIF 2010). Under the guidelines, a conflict of interest relates to instances where a Panel member, partner or close family friend has direct financial or other interest in matters for consideration by the Panel. These situations need to be disclosed. The guidelines however recognise that APMAIF is comprised of community, industry and technical representatives and from time to time this arrangement may give rise to a real or perceived conflict of duty. It is also noted that the duty of a representative member includes representing the views of, or advocating for, their stakeholder group. Since all Panel members are required to participate in the finalisation of complaints, if a conflict of duty arises during the APMAIF consideration of a complaint the member can remain involved in discussions. The conflict of duty however needs to be disclosed to all Panel members and effort made to resolve the issue in favour of public interest and the fair and efficient operation of the APMAIF.

All APMAIF members sign a Deed of undertaking in relation to confidential information and conflict of interest (APMAIF 2011) that binds them to act in accordance with the APMAIF member guidelines. The Review found that, provided that members act in accordance with the deed, the current guidelines are appropriate for dealing with actual conflicts of interest.

Interviewed stakeholders also suggested a range of other experts to be considered for inclusion on the APMAIF to ensure there is a balance of opinion in decision-making processes. Suggestions included:
  • A second public health expert
  • A pharmacist to provide a perspective on how things operate day-to-day and how people receive information
  • Professional with modern marketing/ commercial/ communication background (e.g. understanding of electronic marketing, consumer preferences)
  • An independent scientific representative who is separate to the consumer representative.
  • Representation from FSANZ, NHMRC and DoHA (beyond the Secretariat role). Including FSANZ on the APMAIF as an observer will assist in addressing any labelling concerns.
  • Professional organisations (e.g. lactation expert, health professional)
  • Retailers (if the scope of the MAIF Agreement expands to cover this group).
This Review identified insufficient evidence to warrant the inclusion of the above suggested stakeholders as members of the APMAIF at this time.

The existing APMAIF composition (number and designation of members) is appropriate and should continue. Existing APMAIF members should continue to conduct themselves in accordance with their role description. The role descriptions should be central to considerations of future nominations.

5.4.3 APMAIF nomination and appointment procedures require greater clarity and transparency

Review questionInsights
Are the APMAIF nomination and appointment procedures appropriate and effective?Many stakeholders identified that the current nomination and appointment procedures are unclear and lack transparency

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The majority of interviewed stakeholders indicated that the current nomination and appointment procedures for APMAIF members are unclear and lack transparency. Greater clarity about the criteria used to appoint APMAIF members and increased awareness amongst stakeholders of the role of the APMAIF is required. Some stakeholders suggested that a process of public advertising and applications for APMAIF positions may be appropriate.

The APMAIF Annual Reports state that APMAIF members are appointed by the Parliamentary Secretary for Health (Department of Health and Ageing, 2010), however no further details are provided. Improving the transparency of procedures will present many benefits to the integrity of the APMAIF and the complaints handling process. As identified in Section 5.4.3, many stakeholders expressed concerns about potential conflicts of interest arising from the involvement of industry and the perceived lack of appropriate consumer representation. Public awareness of the nomination and appointment processes will help alleviate these concerns and increase the perceived objectivity of the APMAIF. The most appropriate mechanism for increasing public transparency would be through public advertisements seeking applications for APMAIF positions.

5.4.4 The current division of functions is effective and appropriate

Review questionInsight
What is the value of divisions between APMAIF functions such as investigation, deliberation and secretariat?The current division of functions is effective and appropriate however the role of the Secretariat and The APMAIF should be more clearly defined.

The APMAIF is solely funded by DoHA and is supported by a Secretariat consisting of DoHA staff.

The current process for initial assessment of complaints is reasonably streamlined. As part of the complaints handling process, the Secretariat receives complaints and undertakes an initial assessment to determine whether the complaint is in-scope. The Secretariat has the authority to respond to complainants regarding out-of-scope complaints. For complaints that are deemed to be in-scope, the Secretariat manages the investigation and will present the evidence to the APMAIF at scheduled meetings. APMAIF members then deliberate and make the decision regarding the complaint. The APMAIF complaints handling process is outlined in the APMAIF Annual Report and on the DoHA website, clearly outlining the responsibilities of the Secretariat, including when it will communicate with the complainant.

Amongst interviewed stakeholders there was a general consensus that the current division between APMAIF functions is appropriate. The screening of complaints by the Secretariat enables the APMAIF to dedicate time to issues that warrant their attention and improves the efficiency of the process. A few stakeholders however commented that the division of functions could be clarified.

Several interviewed stakeholders also suggested that the role of the Secretariat could be more clearly defined – e.g. to address whether the Secretariat should communicate with complainants about issues that are out-of-scope and to ensure that the views of the APMAIF are clearly distinct to those of the Department. One stakeholder suggested that the Secretariat should be kept clearly separate and independent from other APMAIF functions. It was also suggested that additional training should be provided to the Secretariat to ensure they have adequate knowledge to respond to queries. Regular training would address any gaps in knowledge that may arise through staff turnover in the Secretariat.

Overall, the division between APMAIF functions is appropriate, both from a governance perspective and a practical division of the workload. The separation of powers between the APMAIF, the Secretariat and DoHA appears adequate. It is not uncommon for smaller independent bodies (both statutory and non-statutory) to be supported by a Secretariat that sits within a department. To maintain the separation of powers and independence of the APMAIF from DoHA, it is important to have a robust and transparent process to appoint APMAIF members (see Section 5.4.3).

5.4.5 The current role of DoHA as observer and Secretariat remains appropriate

Review questionInsights
Is DoHA oversight of the operation of the MAIF Agreement appropriate, and what is the best role for DoHA in the APMAIF’s operations?The current role of DoHA as observer and Secretariat remains appropriate.

Interviewed stakeholders were asked to identify the best role for DoHA in the APMAIF’s operations. Stakeholders identified four key roles for DoHA – observer, secretariat, funder and policy development. Responses from interviewed stakeholders are identified in Table 16 below.
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Table 16: Stakeholder views on the most appropriate role for DoHA

APMAIF membersGovernment organisationsIndustryConsumer Group
Observer: Provide oversight across governance operations and implementation of the MAIF Agreement; provision of expert adviceHigh PriorityHigh PriorityHigh PriorityLow Priority
Secretariat: Provision of administrational support in their role as SecretariatHigh PriorityHigh PriorityHigh PriorityLow Priority
Funder: Provision of funding for the APMAIF to ensure participation (and prevent the requirement for industry funding)Low Priority
Policy development: Development of policy and ensuring policy goals are achievedLow PriorityLow Priority

The appropriateness of these four roles for DoHA are discussed below:
  • Observer – DoHA has observer status on the APMAIF, is not an APMAIF Member and does not vote in decisions. Given that the aim of the MAIF Agreement is to achieve a health policy objective, it is appropriate that DoHA has observer status on the APMAIF.
  • APMAIF Secretariat – The APMAIF Secretariat provided by DoHA undertakes the majority of investigative and administrative work required to implement the MAIF Agreement. It is essential that this Secretariat is adequately skilled and resourced for the MAIF Agreement to be successful. This Review did not identify sufficient evidence to warrant a change to the current arrangements.
  • Funder – as discussed in Section 5.3.2, DoHA is currently responsible for funding the APMAIF’s operations. This arrangement received strong support from many stakeholders. DoHA should continue to ensure that the APMAIF (including the Secretariat) has adequate funds to undertake its functions.
  • Policy Development – It is appropriate that DoHA is responsible for drafting the MAIF Agreement (a policy response to a public health concern) and ensuring implementation of the MAIF Agreement is aligned with Government policy. Findings from this Review support DoHA in its policy development responsibilities.
One stakeholder suggested that DoHA should have a role in surveillance of the marketing environment, as this is too large a task for the APMAIF and consumers to manage. Whilst DoHA should maintain awareness of current marketing practices, it is not considered appropriate for DoHA to actively monitor the marketing environment at this time.

Some stakeholders suggested that DoHA could be more active in providing information to consumers regarding infant feeding (as outlined under the WHO Code). The actions of DoHA in relation to infant feeding generally are beyond the scope of this Review.