Restricting Infant Formula Marketing in Australia
Monitoring, Enforcement and Evaluation
Any effective regulation requires thorough, systematic processes for monitoring, enforcement and evaluation. These processes will be tailored to the scope of the legislation and refined through the legislative development process.
A short summary of potential processes is provided below. Please refer to pages 24 to 26 in the Discussion Paper for more details.
Monitoring
It is anticipated monitoring will be undertaken through a combination of active and passive monitoring, with specific methods tailored to the media and setting being monitored. The WHO NetCode (Network for Global Monitoring and Support for Implementation of the International Code of Marketing of Breast-milk Substitutes) provides countries with a standardised system to monitor compliance with the WHO Code. It aims to detect, report, and address inappropriate marketing of breastmilk substitutes.
NetCode offers two complementary approaches:
- Ongoing monitoring, which integrates into national regulatory systems for continuous oversight.
- Periodic assessments conducted every 3–5 years to evaluate overall compliance.
Australian infant formula marketing legislation could adapt relevant principles from NetCode to the local context while also drawing on relevant domestic experience in regulating marketing and advertising such as for pharmaceutical and tobacco products.
Active monitoring could utilise technological solutions such as the AI tool currently being developed by Deakin University and data from the Australian Ad Observatory for digital marketing surveillance. If retailer marketing was included, physical retail marketing could be monitored by Australian Government staff from relevant agencies such as FSANZ or the Department.
Passive monitoring via complaints would comprise an important part of the monitoring system as per current food and beverage and alcohol advertising schemes, as well as the former MAIF Agreement. Complaints would be lodged with and processed by the relevant enforcement team.
As with the former MAIF Agreement, a public-facing dashboard could be established to transparently report breaches, outcomes (including company responses and actions to address the breach), and penalties associated with the breach (if any).
Enforcement
The appropriate enforcement body would be FSANZ, the Department, or a combination of both agencies. Enforcement options will be informed by legal advice, and could include civil penalties and triggering the operation of the Regulatory Powers Act 2014. Penalties for non-compliance would be proportionate to the severity of the breach and behaviours of the offending company, with greater penalties for more severe breaches and repeat offenders.
Evaluation
It is envisaged that the arrangements will be subject to periodic, independent evaluation. These evaluations would inform ongoing improvements to monitoring and enforcement arrangements and ensure the legislation is meeting its objectives. Evaluation could be included as a requirement of the legislation to ensure public accountability and effective and efficient use of public resources.
Evaluation criteria could potentially include:
- Reduced levels of inappropriate infant formula marketing
- Reduced consumer confusion and ensuring evidence informed infant feeding decisions
- Increased breastfeeding rates