Tesco tries to shift Nestle formula in breach of marketing regulations

Baby Milk Action/IBFAN-UK is highlighting that Tesco and other retailers are running special clearance displays of Nestle's SMA infant formula as the company is launching a "new improved" version. According to Nestle, babies fed on the product currently under promotion have "protein intake in excess of requirements". Mike Brady, Campaigns and Networking Coordinator at Baby Milk Action, said:

"In January Nestle launched 'new improved' SMA infant formula having reduced the protein level, which it says was in excess of requirements. Now we see retailers breaking the law to clear stocks off their shelves. People are reporting many cases of these practices across the country. From past experience we know the companies will get away with breaking the law - and repeating the same behaviour in future - because the responsible Trading Standards authorities do not bring prosecutions as a matter of policy. The law has to be enforced and companies fined or they will continue to treat the public and enforcement officers with contempt."

Below, a Nestle marketing email sent to health workers.

Nestle email sent 29 January 2016 indicating its SMA formula composition was incorrect for optimum infant growth - spun as a relaunch of a new "closer to breastmilk" range.

Nestle claims its SMA PRO infant formula has "protein profile closer to breast milk". It makes no apology for implying the previous product was also comparable to breastmilk - it just repeats the same strategy. The recent Lancet Breastfeeding Series refers to new discoveries being made about breastmilk - such as its role in gene expression - so it can be expected that Nestle will use the strategy of launching "new improved" formulas that are "closer to breastmilk" for decades to come (Nestle is currently investing heavily in epigentics research). Tesco is trying to clear existing stocks of Nestle SMA infant formula with point-of-sale promotions that violate the Infant Formula and Follow-on Formula Regulations (2007). Section 23 states that there should be no special displays, price reductions or "any other promotional activity to induce the sale of an infant formula".

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Above, Nestle SMA infant formula reduced to clear in Tesco Dover, 18 February 2016). Below, Nestle SMA "Extra Hungry" Infant Milk (with a meaningless promotional name) being promoted in Tesco Dingwall and Tesco Winchester on 15 February.

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In some examples, it seems that infant formula may have been placed in "clearance" sections without the price being reduced, so the promotion is also misleading to customers who will understand they are receiving a discount. (The example below is from Tesco Bexhill, 18 February).

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Sainsbury's is also discounting Nestle's SMA infant formula to clear stock. The example below from Bradford shows Sainbury's has added stickers reducing the £3.00 price to £1.99.

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Tesco was also using stickers on Nestle's SMA infant formula in High Wycombe on 15 February.

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Baby Milk Action welcomes reports and photos of violations from the public. These can be added to this post or sent via Baby Milk Action's Facebook page. The Baby Feeding Law Group website  explains how to report violations to Trading Standards.

Instead of clamping down, the Department of Health proposes decriminalising some aggressive marketing practices

International minimum standards ban the promotion of all breastmilk substitutes, including follow-on milks and so-called growing-up milks. However, current UK Regulations only prohibit the promotion of infant formula, though they do have provisions intending to stop cross-promotion through similar branding and labelling being used on other products.

Nestle labels for SMA infant formula, follow-on formula and so-called growing-up milks are virtually identical, as can be seen above. They do not comply with the law. Guidance Notes from the Department of Health state how this should be interpreted, including the requirement that the term "Infant Milk" or "Follow-on Milk" should be at least as big as the brand name, which is clearly not the case.

Idealising images are also prohibited. The heart logo and stylised breastfeeding mother Nestle uses come within this description.

Rather than enforcing these requirements, the Department of Health is currently proposing decriminalising these practices and instead sending companies "Improvement Notices".

Baby Milk Action suggests a softly-softly approach has already been shown to be ineffective, both with regards to Nestle's labelling and Tesco's infant formula promotions.

Companies repeatedly break the law - sanctions must be applied argue campaigners

Tesco catalogue 2009

Baby Milk Action has highlighted and reported numerous examples of Tesco breaking the law, but Trading Standards have not brought prosecutions. The example above shows SMA being promoted as having the "healthiest nutrients" in a Tesco publication in 2009 - Tesco apologised, but did not remove the publication and Trading Standards levied no sanctions. Tesco promoted SMA infant formula as part of a price drop campaign in 2011 (below left) and 2015 (below right). As before, it apologised and said there would be no repeat.

Tesco illegal infant formula promotion                    Tesco promotion of Nestle SMA infant formula

In the 2015 example, the same point-of-sale promotional materials were being put up weeks after it gave this commitment. Baby Milk Action runs a "no promotion - cheaper formula" campaign, calling for permanent price cuts, not promotional ones. Formula is heavily promoted through advertising and targeting of health workers and parents in breach of marketing rules, the cost of which goes onto formula.