Pharmaceutical and Health Care Association of

the Philippines v Duque III

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 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.
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.