2010 - 2011 Annual Report of the Advisory Panel on the marketing in Australia of Infant Formula (APMAIF)

Chapter 4: Issues arising from APMAIF Business

Page last updated: 21 November 2011

The Complaints Handling Process

In 2008, the APMAIF revised its Complaints Handling Process (CHP) in an effort to support transparent discussions 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 consultation step now applies to the handling of all complaints when a ‘not in breach’ decision cannot be reached at the first sitting.

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 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 Panel 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 Panel to consider in conjunction with the existing evidence when the Panel makes its final determination.
The need to further clarify this terminology will be monitored during 2011-12.

Operation of the MAIF Agreement

Re-formulation of infant formula products

A manufacturer sought the APMAIF’s advice on how to raise awareness of a planned change to the formulation of one of its products, noting that in rare instances some infants may have a reaction to a formulation change. The Panel noted the 1994 interpretation guideline which states that “changes in formulation should be referred to only on the container, not promoted in advertisements” and upheld this guideline. It was suggested that a notice regarding the change and the potential for adverse reactions should be included on both the inside and the outside of the can. It was also considered appropriate for the manufacturer to advise the relevant food safety authorities of the planned change and potential consequences.

Interpretation Guidelines

In accordance with its Terms of Reference, the APMAIF occasionally develops guidelines on the interpretation and application of the MAIF Agreement.

In considering complaints concerning alleged breaches of the MAIF Agreement, the APMAIF has, from time to time and in the interests of consistency, referred to past guidelines on the interpretation and application of the clauses of the agreement. Past interpretation guidelines are made available on the APMAIF website as a reference source for stakeholders.

The APMAIF is currently reviewing the interpretation guidelines.

The use of past interpretations of the MAIF Agreement

Formal guidelines on the interpretation of the MAIF Agreement often provide a useful benchmark to signatories in determining the acceptability or otherwise of certain marketing activities. However, the guidelines do not form part of the 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. 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.

In addition, the interpretation guidelines should not be considered to be exclusive or exhaustive – for example, where the APMAIF has determined a specific activity to be unacceptable, it should not be assumed that other activities are acceptable simply because they were not canvassed in the interpretation guideline.