Breast Milk Versus Formula: Courts, Health Marketing, and Asymmetric Information

摘要

This study addresses the following research questions: How efficient is the judicial process in resolving health and nutrition policy conflicts that inevitably entail a cost-benefit calculus? What are its corresponding policy implications? The case method was used based on an illustrative, landmark decision of the Supreme Court of the Philippines concerning milk formula marketing. Comparative country experiences in implementing the International Code of Marketing of Breast-Milk Substitutes were surveyed for this study. The study underscores the vital initiatives taken by the Philippines as a model for other countries in promoting, protecting, and supporting breastfeeding. However, it finds that the institutional capacities of courts to gather, process, and evaluate health-related information are limited, even when courts adopt a posture of restraint. The adversarial structure of litigation, the assumptions and expectations of litigants and judges, and the normative orientation and methodology of adjudication breed reliance on information asymmetries, as depicted in mathematical equations developed in this study. The study contributes to current scholarship on the judicial process and health marketing by drawing attention to key information asymmetries in litigation and adjudication. It suggests that courts be viewed as a last resort in health and nutrition policy conflicts and advocacy. Political and administrative processes should be revisited for possible accommodation following judicial settlement of policy disputes.