The Formula
What the record shows about Nestlé, infant formula and babies in poor countries, from a Bern court to the WHO code
A Bern court found in 1976 that powdered milk prepared with dirty water, dirty bottles or too little powder can kill an infant, that Nestlé’s advertising in poor countries had gone further than at home, and that Nestlé would have to change it to be spared the charge of immoral conduct. It also found that the quality of Nestlé’s milk was not contested, and that in criminal law Nestlé could not be held responsible for the deaths, because third parties’ actions broke the chain. WHO’s 1981 code says formula is needed when mothers do not breastfeed, and asks that its marketing be restrained.
Studies since, in Brazil and five other countries, show far higher risk of death from infection for babies not breastfed. The estimates count different things: 10 million cases a year of illness that breastfeeding could avoid in developing countries (1978, partly a guess), a million infant deaths a year (UNICEF, 1981), and 823,000 under-5 deaths a year in a 2016 Lancet model. None counts one company’s customers, and no source read here counts deaths by company.
The story follows mothers and babies first, then the court, the 1978 Senate hearing, the boycott, the 1981 code and the monitors, with Nestlé’s answers in its own words. Abbott, Bristol-Myers and American Home Products are separate companies and are kept apart. Nestlé’s own website blocked automated fetches, so its words come from its 1978 testimony, its 1984 release, its 2007 reply, an archived page and a 2024 trade report. The Bern text is excerpts, translated and published by the group whose members were convicted; the German original was not found.
May 2007
Dhaka, 2007. A baby girl of eight weeks, Eti, lay in the city’s diarrhoea hospital beside her mother Mina, who had wanted to breastfeed but, she said, found no one to give advice or support. Dr Iqbal Kabir says infants now make up as many as 70% of admissions; twenty-five years earlier small babies were almost unknown there. The Guardian’s reporter did not say which brand Eti had been given. This story asks how far the record ties such babies to one company, Nestlé, and how far to something wider.
1987
The risk. In 1987 Victora and nine colleagues compared infant deaths in two urban areas of southern Brazil. Babies fully weaned from the breast were 14.2 times as likely to die of diarrhoea as babies breastfed with no other milk, and 23.3 times in the first two months. “Cow’s and formula milk seemed to be equally hazardous.” A 2000 WHO pooled analysis found protection greatest under two months and highest when the mother’s education was low. These studies count how babies were fed. None names a company.
23 May 1978
Kingston, Jamaica, 1978. Dr Allan Jackson, who worked at a unit for starving children, told the U.S. Senate of two who came in from the countryside: a girl of 18 months who weighed 12 pounds, 8 once the fluid of malnutrition was gone, and her brother of four months, 5 pounds, down from 7 at birth. Neither had been breastfed. A tin that should last the baby three days had lasted two weeks for both. Of the baby Jackson said it was “quite conceivable” he would never have become malnourished if breastfed; of the girl, that malnutrition “cannot solely be associated” with bottle feeding. The brand is not named.
Mar 1974
The Baby Killer. In March 1974 War on Want, a London charity, published Mike Muller’s report. It opened: “Third World babies are dying because their mothers bottle feed them with western style infant milk.” It said the industry stood accused of using “sales girls dressed up in nurses uniforms” and “free gift gimmicks”, named Nestlé, Cow & Gate and others, and said where conditions are poor “baby milks can be killers”. It did not set out to prove the industry “exclusively responsible” for the trend away from breast feeding. Nestlé’s staff, Muller wrote, “gave me a great deal of their time”.
2 Jul 1974
“Nestlé Kills Babies.” In May 1974 the Third World Action Group in Bern published the report in German as Nestlé tötet Babys, with added material. Nestlé Alimentana SA of Vevey filed charges on 2 July 1974. Its chief executive, Arthur Fuerer, had said he and other directors would “resign in all probability” if its advertising were proved “unethical and immoral”. On 22 June 1976 Nestlé dropped that complaint, one about thousands of deaths, and one about sales girls dressed as nurses. One was left: the title.
1976
What the judge found about deaths. The court heard the paediatrician Derrick Jelliffe and Dr Ebrahim. It found that “the incorrect use of powdered milk can lead to the death or to the serious illness of infants”, that the quality of Nestlé’s milk “is not contested”, and that such foods are “in certain cases urgently needed”. It added: “it is not the product itself that leads to the death of infants in developing countries.” In criminal law, it held, third parties’ actions broke the chain from sale to death.
1976
The verdict. On the title the court found “this defamatory statement is not true”, held it chosen carelessly rather than against better knowledge, convicted thirteen people of libel and fined each 300 francs. On Nestlé’s marketing it found nurses with “an advertizing effect”, said the company “went considerably further” in poor countries than at home, and noted that Nestlé’s counsel gave no answer whether it used the same methods as in Europe. If Nestlé wanted to be spared “immoral and unethical conduct”, it said, it must change.
4 Jul 1977
The boycott. On 4 July 1977 the Infant Formula Action Coalition, INFACT, of Minneapolis called a boycott of Nestlé products, supported by other organizations; its own chronology says Nestlé would not stop what it called unethical marketing. A year earlier church investors had taken a different company, Bristol-Myers, to court over its baby formula sales. Ballarin would tell senators that Nestlé’s U.S. company sold no formula; the target was its Swiss parent.
23 May 1978
Washington, 23 May 1978. Senator Edward Kennedy opened a hearing on formula in poor countries. Missionaries, nurses and doctors who had worked there spoke first, then scientists, then the industry. He asked whether a product that “requires clean water” could be safely used where “sewage runs in the streets”. He also said: “The purpose of this hearing is not to find fault.”
23 May 1978
Nestlé’s case. The U.S. Nestlé company, which he said made no formula, asked Oswaldo Ballarin, chairman of Nestlé’s company in Brazil, to appear. He argued that bottle feeding came first: mothers used flour in water, “or sometimes with fresh cow’s milk of poor quality”, and doctors “welcomed the possibility of prescribing a safe and nutritious product”. “There is some misuse, but not as much as has been pointed out here.” Nestlé, his statement said, “makes no claim to perfection” and is “perfectly conscious of our responsibility to encourage breast feeding”.
23 May 1978
Whose responsibility? Ballarin relayed the U.S. company’s view that the boycott was “an indirect attack on the free world’s economic system” led by “a worldwide church organization”. Kennedy: “Now, you cannot seriously”, and the room laughed and applauded. Senator Chafee said the charge “does not advance the cause at all”. Asked whether Nestlé had a duty to know how its product was used where water is bad, Ballarin said: “We can not have that responsibility, sir.” And: “How can I be responsible for the water system?”
23 May 1978
Baguio, Philippines. Dr Navidad Clavano told the senators that mothers diluted formula because a tin cost more than a father earned. At Baguio General Hospital babies had been kept in a nursery and bottle fed; in 1973 and 1974 the share bottle fed was “quite high”. The hospital then returned babies to their mothers two hours after birth. In nearly 10,000 births, Clavano said, deaths fell 47.2%. That is one hospital’s own before-and-after account; this story did not find the paper itself.
2016
The count. Three figures answer different questions. In 1978 Jelliffe told the Senate some 10 million babies a year in developing countries could be saved from diarrhoea and marasmus if breastfeeding returned, “partly a guesstimate”; asked by Kennedy, he said it counted cases, and “many would die”. In 1981 UNICEF’s James Grant said a million infant deaths a year could be prevented if breastfeeding were promoted. In 2016 a Lancet series modelled 823,000 under-5 deaths a year preventable. None counts one company’s customers.
21 May 1981
Geneva, 21 May 1981. The World Health Assembly adopted the code, 118 votes to one, three abstaining. It says that when mothers do not breastfeed there is “a legitimate market for infant formula”, to be “accessible to those who need them”, and that “improper practices in the marketing of breastmilk substitutes” can contribute to infant illness and death. It asks for “no advertising or other form of promotion to the general public” and says manufacturers “should regard themselves as responsible for monitoring their marketing practices”. It is worded as a recommendation; the Guardian says the Assembly called it “a minimum requirement”.
23 Apr 1981
The one no. The only vote against was the U.S. government’s, under President Reagan; the Carter administration had favoured a yes. Abbott Laboratories wrote the White House on 23 April 1981 urging a no, and named Bristol-Myers and American Home Products as the other major U.S. makers. The Monitor reported industry views that the code “cannot be adopted in the United States without violating rights of free speech and enterprise”, and that “the industry lobby appears to have prevailed”. On 16 June the House passed a resolution “concerning the negative vote”, 301 to 100. Abbott’s letter does not mention Nestlé, a Swiss company; the Monitor does not say whether Nestlé lobbied.
May 1982
Nestlé’s reply. Nestlé says it “endorsed the WHO Code the day it was passed”, issued marketing instructions in March 1982, and in May formed “an independent body”, an audit commission under former senator Edmund Muskie, which sent recommended changes that October. Before the vote the Monitor had written that two U.S. makers had acknowledged a need to curb advertising and that “American Home Products and Switzerland’s Nestle Company have not.” In 1989 Danny Duncan Collum wrote in Sojourners that the commission was “entirely funded by Nestle”. No Nestlé reply to that is in the sources read.
25 Jan 1984
The boycott suspended. In December 1983 the boycott committee named four concerns: educational materials, hazard warnings on labels, gifts to health workers and free supplies to hospitals. On 25 January 1984 a joint statement said it “commends Nestle for taking the leadership role in industry’s compliance”. Reason magazine said the commission had found Nestlé “to have been abiding by the marketing code”. In October 1984 the boycott was called off (sources differ on which body did so) and in October 1988 relaunched, against Nestlé and American Home Products, over free supplies. Nestlé’s reply: in 1989, gifts only for mothers “unable to breast-feed”; in 2007, no free supplies to hospitals.
May 2007
Dhaka again. Mothers told the Guardian doctors had pointed them to a make, “often Lactogen”. Happi Akther’s baby Nur had been fed it since he was about a month old; it cost 800 taka (£2) a week against her husband’s £6 wage. Paediatrician Khaliq Zaman said of the reps from “three or four companies”: “Nestlé brought me a big cake at new year.” Nestlé’s spokesman called its tear-off pads “a safety measure”; Save the Children’s author said such leaflets break the code if given to mothers. Nestlé’s Hilary Parsons said the article “failed to highlight a single violation”.
Mar 2024
Counting the code. In 2020 WHO, UNICEF and IBFAN reported 136 of 194 countries had some legal measure on the code, 79 of them banning promotion in health facilities. The Access to Nutrition Initiative’s 2024 index found none of 18 companies fully aligned with the code; Nestlé scored between 20% and 33%, among the top five. Of 1,614 incidents in five markets, 219 concerned Nestlé products, 290 Danone and 142 Abbott. Nestlé said it and others “fundamentally disagree with their methodology”, which “may unfairly penalise companies with a large portfolio”.
2024
What this story could not settle. A Bern court found in 1976 that Nestlé’s advertising in poor countries went further than at home and that it must change to be spared the charge of immoral conduct; it also found, in criminal law, no killing. Dr Jackson told the Senate malnutrition was there first, and formula “exacerbates the problem”. Monitors find the code not fully followed; Nestlé says it applies it in developing countries and disputes the method. No source read counts deaths by company or reports a court ruling after 1976. IBFAN’s own monitoring was not read.
Pictures, from Wikimedia Commons: Washington, D.C., Carol M. Highsmith, Public domain; United States government, Martin Falbisoner, CC BY-SA 3.0.
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