Boots modus operandi for infant formula promotion - SMA PRO and APTAMIL PRO promotions

Boots, the chemist, repeatedly flouts the Infant Formula and Follow-on Formula Regulations (2007) with point-of-sale promotion.

The example below is a promotional display for Nestlé's relaunched SMA range of formula (rebranded as SMA PRO after Nestlé warned health workers that babies fed on the previous product received "protein intake excess of requirements").

Article 23 of the law states (see the 'Law' section of this site):

23.—(1) No person shall at any place where any infant formula is sold by retail—

(a) advertise any infant formula;
(b) make any special display of an infant formula designed to promote sales;
(c) give away—
(i) any infant formula as a free sample, or
(ii) any coupon which may be used to purchase an infant formula at a discount;
(d) promote the sale of an infant formula by means of premiums, special sales, loss-leaders or tie-in sales; or
(e) undertake any other promotional activity to induce the sale of an infant formula.

This is a special display for Boots "Baby Event" and a price promotion is shown on the shelf-talker in front of the infant formula. Baby Milk Action coordinates the BFLG monitoring project and welcomes reports from the public. Become a member of Baby Milk Action to help fund this work, from £1.00 per month.

Closer inspection reveals that Boots customers are being misled into thinking the infant formula is on special offer as the notice in front of it actually applies to formula for older babies. The Guidance Notes on interpreting the law (available via the 'Law' section of this site) make it clear that this is unacceptable, stating in section 53:

53. The aspects of presentation which relate to labelling of infant formula and follow-on formula have been discussed previously. In relation to in-store presentation, companies must ensure that they are clearly differentiated in order to avoid any risk of confusion and that:

• ‘shelf-talkers’ (attachments that add a company’s logo or sales message to the edge of a shelf) and other in-store promotional devices for follow-on formula must not be used in the vicinity of infant formula.
• Follow-on formula should be located at a different part of the store to infant formula. If this is not possible they should be clearly separated in physical location.
Boots has neither separated the products, nor kept the infant formula away from the promotional messages for the other formulas in the range.
The cross-promotion is exacerbated because Nestlé's labelling of SMA PRO does not meet the legal requirements. They are designed with common branding, making it difficult to know which is infant formula, follow-on formula, milk for older babies etc. The Guidance Notes on interpreting the label provisions in the law include in paragraph 51 the requirements that:
• the specific terms ‘infant formula’ and ‘follow-on formula’ should be clearly featured on the packaging, in a font size no smaller than the brand name.
• The colour scheme used for infant formula packaging should be clearly different to the colour scheme of follow-on formula packaging. Using different shades of the same colour is not acceptable as it may lead to confusion.
Nestlé ignores these requirements. While it does give the number 1, 2 and 3 in larger text on the products, this is insufficient and is confusing as in some formula ranges number 2 formula has been used for "hungry baby" infant formula, for use from birth (an unnecessary product invented for marketing purposes), whereas Nestlé uses it here for follow-on formula for use from 6 months of age. It is not difficult for companies to understand these requirements and they could easily change their labels. They do not do so because their strategy is to bypass restrictions on infant formula promotion through the similar labelling. As mentioned elsewhere, the labels also break requirements regarding use of idealising images and text.
Nestlé is the world's largest formula company, with Danone having about half of its global market share (29% and 15% respectively). Nestlé entered the UK with the takeover of the SMA brand in 2012 and we now see the aggressive practices it uses around the world being used in the UK. This is driving down standards as Danone tries to compete with it. As Nestlé launched SMA PRO, Danone struck back by launching APTAMIL PRO.
Boots again at the forefront of promoting Danone's Aptamil Pro formula, again using special displays including the infant formula.
The above examples are from Mild, Liverpool and Stamford in February/March 2016. The strategy was used across the Boots chain. When challenged, managers would sometimes remove the infant formula from the displays, claiming it had been included in error. No action has been taken by Trading Standards for repeated breaches of criminal law.
The job of Trading Standards is complicated by the way that UK law treats promotion of infant formula and follow-on formula differently. There is no such distinction in the International Code of Marketing of Breastmilk Substitutes, which prohibits promotion of all breastmilk substitutes, including infant formula, follow-on formula and milks for older babies. Companies should abide by the Code independently of national measures (clearly stated in Article 11.3). Boots is violating the Code with the whole of this special display, as analysed by Baby Milk Action here.
The CEO of the Trading Standards Institute recently highlighted cuts to services that has seen a reduction of approximately 53% in staffing levels since 2009, making the general point that: "We have a situation where trading standards teams in local councils are tasked with holding multi-million-pound firms to account, with just a handful of staff.”
Baby Milk Action welcomes reports of violations on behalf of BFLG and exposes these practices in campaigns, often prompting companies to remove them. However, prosecutions and fines appear to be necessary to persuade companies to stop routine flouting of the regulations, which will require adequate funding of law enforcement. See Baby Milk Action's press release: Formula promotion in breach of regulations increases while Trading Standards Institute highlights cuts to consumer protection
Danone uses the same strategy as Nestlé in labelling all products in the range to be cross promotional. Baby Milk Action worked at European Union level to try to improve the formula regulations as companies and enforcement authorities have argued the Guidance Notes cannot be enforced, only the letter of the law. The European Commission attempted to make the language in the new Delegated Acts that come into force on 22 August 2020 even clearer, stating in Article 6.6:
"The labelling, presentation and advertising of infant formula and follow-on formula shall be designed in such a way that it avoids any risk of confusion between infant formula and follow-on formula and enables consumers to make a clear distinction between them, in particular as to the text, images and colours used."