Pharmaceutical and Health Care Association of The Philippines vs. Duque III
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Rizchelle Sampang-ManaogPharmaceutical and Health Care Association of The Philippines vs. Duque III
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Rizchelle Sampang-ManaogPOLYTECHNIC UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW
PUBLIC INTERNATIONAL LAW
FIRST SEMESTER AY 2024 - 2025
NAME: MANAOG, Rizchelle S.
SECTION: JD 2-3
CASE DIGEST
TITLE OF THE CASE: Pharmaceutical and Health Care Association of the Philippines vs. Duque III
GR # AND DATE: G.R. No. 172034
PONENTE: Austria-Martinez, J.
CASE DOCTRINE Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law. Treaties become part of the law of the
land through transformation pursuant to Article VII, Section 21 of the Constitution
which provides that “[n]o 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.
FACTS Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president
under the Freedom Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 11 of the International
Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted
by the World Health Assembly (WHA) in 1981.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect
on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondent’s 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.
ISSUE/S: 1. Is the provision in the ICMBS absolutely prohibiting advertising or other
forms of promotion to the general public of products within the scope
of the ICMBS legally binding to the Philippines?
2. Whether or not the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised
Administrative Code even in the absence of a domestic law.
RULING: 1. No, the provision in the ICMBS absolutely prohibiting advertising or other
forms of promotion to the general public of products within the scope
of the ICMBS legally binding to the Philippines.
Under the 1987 Constitution, international law can become
part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international
law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.
Treaties become part of the law of the land through transformation
pursuant to Article VII, Section 21 of the Constitution which provides that
“[n]o 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.
The ICMBS and WHA Resolutions 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.
However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk Code.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is
well to emphasize at this point that the Code did not adopt the provision
in the ICMBS absolutely prohibiting advertising or other
forms of promotion to the general public of products
within the scope of the ICMBS. Instead, the Milk Code expressly provides
that advertising, promotion, or other marketing materials may be allowed if
such materials are duly authorized and approved by the Inter-Agency
Committee (IAC).
Under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article
19 and regulations under Article 21 come into force. Article 23 of the WHO
Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter
within the competence of the Organization.
The absence of a provision in Article 23 of any mechanism by
which the recommendation would come into force for member states is
conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they “carry moral and
political weight, as they constitute the judgment on a health
issue of the collective membership of the highest international body in the
field of health.” Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.
The legal value of WHA Resolutions as recommendations is summarized
in Article 62 of the WHO Constitution, to wit:
“Art. 62. Each member shall report annually on the action taken with
respect to recommendations made to it by the Organization, and with
respect to conventions, agreements and regulations.”
Apparently, the WHA Resolution adopting the ICMBS and subsequent
WHA Resolutions urging member states to implement the ICMBS are
merely recommendatory and legally non-binding. Thus, unlike what has
been done with the ICMBS whereby the legislature enacted
most of the provisions into law which is the Milk Code, the subsequent
WHA Resolutions, specifically providing for exclusive breastfeeding from
0-6 months, continued breastfeeding up to 24 months, and absolutely
prohibiting advertisements and promotions of breastmilk substitutes, have
not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute “soft law” or non-
binding norms, principles and practices that influence state behavior.
As previously discussed, 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, although signed by most of the member states,
were in fact enforced or practiced by at least a majority of the member
states; neither have respondents proven that any compliance by member
states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA
Resolutions are customary international law that may be deemed
part of the law of the land.
Consequently, legislation is necessary to transform the provisions
of the WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that can
be implemented by executive agencies without the need of a law enacted
by the legislature.
2. No, DOH may not implement the provisions of the WHA Resolutions by
virtue of its powers and functions under the Revised Administrative Code
even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987
provides that the DOH shall define the national health policy and
implement a national health plan within the framework of the government’s
general policies and plans, and issue orders and regulations
concerning the implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising
and other forms of promotion of breastmilk substitutes provided in some
WHA Resolutions has been adopted as part of the national health policy.
The national policy of protection, promotion and support of breastfeeding
cannot automatically be equated with a total ban on advertising for
breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total
ban on the advertising and promotion of breastmilk substitutes, but
instead, specifically creates an IAC which will regulate said advertising
and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed
by the constitutionally authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent
WHA Resolutions, can be validly implemented by the DOH
through the subject RIRR.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and,
as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.
LEGAL REASONING: The ruling underscores that international agreements must be formally
incorporated into domestic law through specific constitutional or legislative
processes to be binding in the Philippines.
WHA Resolutions are categorized as non-binding recommendations that
influence state behavior but do not impose mandatory obligations unless enacted
into domestic law.
The authority of executive agencies like the DOH is constrained by existing
domestic laws and cannot unilaterally enact measures that exceed or contradict
legislative provisions.
FALLO WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and
46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared
NULL and VOID for being ultra vires. The Department of Health and respondents
are PROHIBITED from implementing said provisions.
