PHAP V.

DUQUE
G.R. No. 173034 | October 9, 2007
J. Austria-Martinez

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The Milk Code, Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid
as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

Doctrine of tansform and incorp – ways para makapasok ang treaty provisions as laws in our
country
- If senate approves, then ok
- May non binding treaties tho, like this Milk treaty by world health assembly– guidelines
o We need to make a lawconsistent to this – milk code (aquino)
WHA
- Says breastmilk subs are merely chemical, cannot match the real thing
- They cannot claim their nutria and health benefits
2006 20 years after – we revised eo 51 (amended IRR, yung nasa likod na for further discussions)
- This is subject of issue

Milk
12 mos
Chemicals are ok sub
Ads should be authorized
Added labelling ok
Can tell doctors the contents
IRR
2 y o (mas madami di pwede iadvert – not favor company)
<6 mos dapat exclusive breast milk, no sub.
ads prohibited for subs (gusto real thing talaga)
label needs to specifically say (walang real sub, may contain patho organisms)
bawal (

FACTS
Petitioners - PHARMACEUTICAL and HEALTHCARE ASSOCIATION of the PHILIPPINES
Respondents - Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of
Health (DOH); DOH is deemed impleaded as co-respondent since respondents issued the questioned
RIRR

 October 28, 1986: Pres. Cory Aquino issued Executive Order No. 51 (The Milk Code - TMC) by
virtue of the legislative powers granted to her under the Freedom Constitution.
o One of the preambular clauses of TMC – the law seeks to give effect to Article 11 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by
the WHA (World Health Assembly) in 1981.
 In 1990, the Philippine ratified the International Convention on the Rights of the Child. Art. 24 of
the instrument mandates that States should take measure to diminish infant mortality
and should ensure that all segments of society are informed of the advantages of breastfeeding.
 May 15, 2006 – DOH issued the assailed RIRR (Revised Implementing Rules and Regulations of
E.O. 51 or A.O. No. 2006-0012) which was to take effect on July 7,2006.
o The RIRR imposes a ban on all advertisements of breastmilk substitutes
 June 28, 2006 – Petitioner filed the present Petition for Certiorari and Prohibition with Prayer for
the Issuance of a TRO or Writ of Preliminary injunction from implementing RIRR
 August 15, 2006 – the Court issued a Resolution granting the TRO, enjoining the respondents
from implementing the assailed RIRR.
o The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating
the RIRR
 o DOH meanwhile contends that the RIRR implements not only TMC but also various
international instruments regarding infant and young child nutrition. They posit that the
said international instruments are deemed part of the law of the land and therefore may
be implemented by the DOH in the RIRR.
ISSUES
1. Whether or not petitioner is a real party-in-interest

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations
(RIRR) issued by the Department of Health (DOH) is not constitutional;
a) Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);

b) Whether pertinent international agreements entered into by the Philippines are part of
the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;

c) Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and

d) Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

HELD/RATIO
1. YES, petitioner is a real party-in-interest
o Under petitioner’s Articles of Incorporation, the association is formed “to represent
directly or through approved representatives the pharmaceutical and health care
industry before the Philippine Government and any of its agencies, the medical
professions and the general public.” Thus, as an organization, petitioner definitely
has an interest in fulfilling its avowed purpose of representing members who are
part of the pharmaceutical and health care industry.
2. No. But some parts of the IRR are not in accordance to The Milk Code.

a. Not all of them. RIRR implemented by the DOH can only cover The Milk Code. Sections
4(f0, 11, and 46 were found to be null and void. – a law created by virtue of the law-making
powers vested in Pres. Aquino in the freedom constitution – and not the subsequent
resolutions of the WHA as they are mere recommendations requiring enabling laws. Sections
4(f) and 11 (prohibition on the advertising and promotion of breastmilk substitutes) and 46
(providing for administrative sanctions that are not found in the Milk Code) went beyond the
DOH’s authority and contravened the Milk Code, and were therefore null and avoid. The
Court found that the rest of the provisions of the RIRR are consistent with the Milk Code.

o Although the DOH has the power under the Milk Code
to control information regarding breastmilk vis-à-vis breastmilk substitutes, this
power is not absolute because it has no power to impose an
absolute prohibition in the marketing, promotion and advertising of breastmilk
substitutes. Several provisions of the Milk Code attest to the fact that such power to
control information is not absolute

b. No. The ICMBS and WHA Resolutions (these are the only instruments invoked by
respondents to have had specific provisions regarding breastmilk substitutes) are not treaties,
as they have not been concurred in by at least two-thirds of all members of the Senate as
required under Section 21, Article VII of the 1987 Constitution. These laws are not considered
as customary law and have not deemed part of the rule of land.

o International law can become part of domestic law in 2 ways:

- Transformation – pursuant to Article VII, Section 21 of the
Constitution, which provides that “no treaty or international
 agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate”. Thus, treaties or
conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that
can be applied to domestic conflicts.
 HOWEVER, the ICMBS has been transformed into domestic
law through local legislation that is TMC. Therefore, it is not
the ICMBS per se that has the force of law but it’s TMC.
While TMC is almost a verbatim reproduction of the ICMBS,
it did not adopt the latter’s provision on the absolute
prohibition on advertising of products within the scope of
the ICMBS. Instead the MC provides that advertising
promotion or other marketing materials may be allowed if a
committee approves such materials.
- Incorporation – by mere constitutional declaration, international
law is deemed to have the force of domestic law. This is found under
Art 2, Sec 2 “The Philippines… adopts generally accepted principles
of international law as part of the law of the land”
o For an international rule to be considered as customary law, it must be established
that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any
evidence to prove that the WHA Resolutions were in forced by majority of member
states and that they are obligatory in nature.
- Fr. Joaquin Bernas on customary law: Custom or customary
international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris].
(Restatement) This statement contains the two basic elements of
custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way
they do.
- In Mihares v. Ranada: International law becomes customary rules
accepted as binding as a result of two elements: (1) Established,
widespread, and consistent practice on part of the state (2) Opinion
juris (or the belief that a certain form of behavior is obligatory)

c. NO. Despite the fact that the present Constitution enshrines free enterprise as a
policy, it nonetheless reserves to the government the power to intervene whenever necessary
to promote the general welfare… free enterprise does not call for the removal of protective
regulations.
o It must be clearly explained and proven by competent evidence just exactly how
such protective regulation would result in the restraint of trade
- Section 4 – proscription of milk manufacturers’ participation in
any policymaking body; Section 22 – classes and seminars for
women and children; Section 32 –giving of assistance, support
and logistics or training; Section 52 – giving of donations
o In the instant case, petitioner failed to show how the aforementioned sections
hamper the trade of breastmilk substitutes. They also failed to establish that these
activities are essential and indispensable to their trade.
d. YES. Questioned provision, in addition to Section 26 of Rule VII provide labeling
requirements for breastmilk substitutes found to be in consonance with the Milk Code-
The provisions in question provide reasonable means of enforcing related provisions in the
Milk Code.
Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014 are
declared null and void for being ultra vires. The TRO is lifted insofar as the rest of the
provisions of A.O. 2006-0012 are concerned.

Summary: https://isisrakel.wordpress.com/2009/03/06/pharmaceutical-and-health-care-vs-duque-iii/