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Independent review of the Marketing in Australia of Infant Formula (MAIF) Complaints Handling Process– Consultation Summary Department of Health14 July 2017

Department of Health| 14 July 2017

Contents

1 Purpose of this report........................................................................................................................1

2 Our approach to consulting with stakeholders..................................................................................2

2.1 The review scope is focused on the overall effectiveness and efficiency of the complaints handling process.....................................................................................................................2

2.2 A diverse selection of stakeholders participated in the review process.................................2

2.3 Our consultation methodology combined interviews with an online survey.........................3

3 The complaints handling process occurs in a heavily debated regulatory environment...................5

3.1 The voluntary, self-regulated nature of the MAIF Agreement provides the backdrop for the complaints handling process...................................................................................................5

3.2 A strong dichotomy of views is held by stakeholders on the suitability of current arrangements..........................................................................................................................6

4 Stakeholder feedback was provided on all aspects of the complaints handling process..................8

4.1 Awareness and visibility of the complaints handling process.................................................8

4.2 Timeliness of the complaints handling process.....................................................................10

4.3 Transparency of the complaints handling process................................................................11

4.4 Consequences of complaints handling decisions..................................................................13

4.5 The role of the Tribunal in the complaints process...............................................................14

4.6 The role of the Department of Health...................................................................................17

Appendix A Key lines of enquiry for the review.......................................................................................19

Appendix B Stakeholders that participated in this review......................................................................21

B.1 Interviews..............................................................................................................................21

B.2 Survey....................................................................................................................................22

Appendix C Detailed survey results..........................................................................................................23

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Department of HealthConsultation summary – Review of MAIF complaints handling process | 14 July 2017

1 Purpose of this reportThe Department of Health (the Department) has engaged Nous Group (Nous) to undertake a review of the complaints handling process under the Marketing in Australia of Infant Formulas: Manufacturers and Importers Agreement 1992 (MAIF Agreement).

The review aims to inform Australia’s current and future commitment to the WHO’s International Code of Marketing of Breast-milk Substitutes (WHO Code), and ensure best practice in the Complaints handling process.

The objectives of the review are to:

Assess the efficiency and effectiveness of the existing arrangements, including their scope and coverage

Understand stakeholder awareness and perception of the MAIF Agreement and Tribunal arrangements

Identify areas for improvement in the complaints process.

This review is being conducted three and a half years after the complaints handling process underwent significant change, following the abolition of the Advisory Panel on the Marketing in Australia of Infant Formula (APMAIF) and the establishment of the current Tribunal. The timing of this review provides an opportunity to assess the effectiveness and the efficiency of the complaints handling process in light of this adjustment, and identify opportunities for improvement that can be made in the future.

As part of this review, Nous has undertaken a program of consultations with stakeholders on the complaints handling process. (Our approach to consultations is outlined in Section 2.)

Review Plan Progress Report Consultation Summary Report Final Report

This report provides a summary of the consultations on all aspects of the complaints handling process conducted as part of the review.

This report does not include Nous’ analysis of the effectiveness and efficiency of the arrangements nor our findings in relation to areas for improvement. These review findings and recommendations will be provided in the Final Report.

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2 Our approach to consulting with stakeholdersThis section provides an overview of the approach used to consult stakeholders in support of the review of the complaints handling process. It includes:

a summary of the scope of the review

the methodology used for consulting with stakeholders, and

an overview of the stakeholders that participated in the review.

2.1 The review scope is focused on the overall effectiveness and efficiency of the complaints handling process

This review focuses on the complete complaints handling process. The arrangements between Industry and the appointment of the MAIF Tribunal are specifically out of scope. The Tribunal is currently revising its Terms of Reference in a separate process.

Nous applied a structured approach to ensure our stakeholder engagement activities and the development of review findings are rigorous, consistent and comprehensive.

Key lines of enquiry were used to guide the overall conduct of the review and its consultations. These lines of enquiry were as follows:

1. How effective and efficient is the complaints handling process?

2. How fair, timely and transparent is the complaints handling process?

3. What changes should be made to improve the complaints handling process?

Each key line of enquiry was supported by a series of guiding and research questions which are shown in Appendix A.

2.2 A diverse selection of stakeholders participated in the review process

To ensure a balanced representation of all stakeholder groups, Nous closely tracked consultation involvement throughout the process. We present the diversity of stakeholder views in this consultation summary report.

The full list of stakeholder organisations who were interviewed and a breakdown of stakeholder groups who participated in the survey are available in Appendix B.

The stakeholder groups fall into five categories. In practice, however, there was little to distinguish the last two groupings – health advocacy groups and professional organisations and members of the general public.

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Table 1: Consultation stakeholder groups

Icon Stakeholder group Examples

The Commonwealth Government

The Australian Government is the signatory to the WHO Code, with responsibility for ensuring compliance to the Code resting on the Commonwealth Department of Health.

State Governments e.g. Victorian Department of Health and Human Services

IndustrySignatories, non-signatories and the Infant Nutrition Council (INC). E.g. H J Heinz Company Australia, Nestle Australia.

Tribunal The Ethics Centre Secretariat and Tribunal members.

Health advocacy groups and professional organisations

E.g. nurses, Australian Breastfeeding Association andDietician’s Association of Australia

Consumers and members of the general public E.g. interested members of the general public

2.3 Our consultation methodology combined interviews with an online survey

Nous utilised two types of consultation activities – individual interviews and an online survey. Due to the sensitivity of the project, Nous intentionally avoided the use of consultation workshops and group activities. This ensured that all stakeholders were able to share their views with confidence and allow fair representation of perspectives. All responses have been kept confidential with the results attributed to stakeholder groups, as well as some key individual stakeholders.

The interview and survey participants included a mix of stakeholders who had lodged complaints, been the subject of complaints or been involved with delivering the complaints process during the APMAIF and/or current Tribunal process.

Interviews

Nous conducted 19 interviews in-person and via teleconference from 23 May to 13 July 2017. The interviews aimed to understand stakeholder views about the effectiveness and efficiency of the complaints handling process, the transparency and timeliness of the process, the Department’s role and suggested areas for improvement. Nous captured detailed notes for each interview which were then summarised and themed to provide an overview of all stakeholder perspectives.

The interviewees included:

Commonwealth and state governments

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Industry signatories to the MAIF Agreement

The Tribunal and Secretariat

Key breastfeeding advocacy peaks

A sample of 5 respondents to the online survey1.

Appendix B provides advice on the organisations interviewed.

Online survey

The online survey was open from 12 June to 30 June 2017 and received 180 responses. The survey was publicly available on the Department of Health website and distributed through key stakeholders including industry stakeholders, health professionals and organisations. Nous also provided interviewees with the survey to input any additional views and share it with other relevant stakeholders within their organisations or networks. Nous also offered survey respondents the opportunity for a follow up interview2.

The key lines of enquiry guided the development of the survey questions which included Likert scale and open response questions. The survey primarily focussed on understanding community levels of awareness and collected high level perspectives about the current operations and future areas for improvement.

The survey provided the opportunity for any interested stakeholders, who otherwise would not be interviewed or be available for an interview, to participate in the review. Of the respondents, only about 4 respondents (about 2%) were from industry. The remainder were largely health professionals, breastfeeding advocates or consumers (70%). Of the total respondents, approximately 32% had lodged a complaint. Full results of the survey are set out in Appendix C.

Figure 1: Stakeholder Groupings who responded to the Survey

69%

24%

2%2%1%

1%2% Consumer or member of the general public

Health professional / organisationOther

Signatory to MAIF AgreementGovernment agencyIndustry representativeConsumer group

1 The survey asked respondents if they would like a follow up interview and 5 respondents were selected.2 As above

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3 The complaints handling process occurs in a heavily debated regulatory environment

Throughout the consultation process for this review many stakeholders found it very difficult to separate their views about the complaints handling process from their views about the MAIF Agreement itself and their underlying beliefs about the effectiveness of voluntary regulation by industry.

Overwhelmingly, those representing themselves as a health advocacy or professional group, a consumer or member of the general public, expressed dissatisfaction with both of these matters.

Given that this dissatisfaction flavours the perceptions of many stakeholders, it is difficult to consider the views of stakeholders on the complaints handling process in isolation.

To allow for this potential influence on perceptions of the complaints handling process, a summary of the discussions on the regulatory environment of the MAIF Agreement is provided here to set the scene.

3.1 The voluntary, self-regulated nature of the MAIF Agreement provides the backdrop for the complaints handling process

Since 1992, the MAIF Agreement has been the primary means by which the Australian Government has chosen to give effect to the World Health Organisation’s International Code of Marketing of Breast-milk Substitutes (the WHO Code).

The MAIF Agreement is a voluntary agreement between industry bodies that limits aspects of the marketing of infant formula in a way that provides consistency with the Australian Government’s responsibilities as a signatory to the WHO Code. In 1981 Australia signed the WHO Code and in 1992 the Department of Health, industry and other stakeholders collaboratively developed the MAIF Agreement, at the instigation of Industry3.

After an independent review by Robert Knowles in 2003, minor revisions were made to the Agreement. In 2007 and again in July 2016 after further minor alterations to the Agreement, the Australian Competition and Consumer Commission (ACCC) re-authorised the MAIF Agreement as not anti-competitive.4

Australian Government involvement in the MAIF Agreement has varied since 1992 when the MAIF Agreement was developed. In the same year, the Australian Government set up the Advisory Panel on the Marketing in Australia of Infant Formula (APMAIF). The APMAIF was a non-statutory advisory panel which monitored compliance with the Agreement, determined when signatories were in breach and advised the Australian Government on the MAIF Agreement.

In 1998 a cost-sharing agreement was reached between the infant formula companies and the Treasury, who provided the APMAIF secretariat services at that time. Under this agreement, the industry funded 70% of the APMAIF secretariat expenses and the Treasury funded the remaining 30%. When the APMAIF secretariat moved to the Department of Health in 2003, the Department funded 100% of the expenditure related to the operating costs of the Panel.

In 2007 the cost-sharing arrangement with industry was discontinued pending a review of APMAIF funding mechanisms, and while the Department had plans to negotiate a formal cost sharing

3 Information provided by Jan Carey, CEO INC.4 ACCC, 2016 (www.accc.gov.au/media-release/agreement-to-restrict-advertising-of-infant-formula)

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arrangement, no further contribution was ever requested from the industry. The administrative and committee costs were covered by the Department and the Department continued to provide staffing for the Secretariat until 2013.

In 2013, the APMAIF was disbanded as a response to a Government desire to remove ‘red tape’ regulation and the complaints handling responsibility was left to the industry. During a period of approximately a year, the Infant Nutrition Council (INC) undertook negotiations on behalf of the signatories with various parties to fill the gap in the process. The St James Ethics Centre (now The Ethics Centre) agreed to take on the responsibility of setting up the Tribunal and acting as its secretariat from November 2014.

Current Australian Government involvement in the MAIF Agreement involves:

the provision of information on its website, including management of the format and receipt of complaints

receipt of complaints and an initial filtering process to determine whether complaints are in or out of scope

passing in-scope complaints – or those of uncertain scope – to the Tribunal

responses to complainants advising the outcome of this filtering

observer status on the MAIF Tribunal (not always exercised)

receipt of complaints determinations (breaches) from the Tribunal

a running record of some complaints statistics and

receipt of the Tribunal’s annual report.

3.2 A strong dichotomy of views is held by stakeholders on the suitability of current arrangements

Two distinct schools of thought were visible in the responses to consultation questions throughout the review process.

Overwhelmingly, these two perspectives were divided along stakeholder lines between:

health advocacy and professional organisations, consumers and members of the general public, particularly breastfeeding advocacy groups and consumers associated with them, who propose a stronger approach to implementing Australia’s obligations under the WHO Code, and

industry stakeholders who prefer the lighter touch self-regulation approach where the industry is responsible for managing compliance with the MAIF Agreement.

This dichotomy results in some separate views on the effectiveness of the complaints handling process. Given that the majority of the respondents to the survey fall into the first category above, it is not surprising that 90% of survey respondents do not think that voluntary regulation is an effective means of encouraging compliance.

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Figure 2: Extent to which stakeholders agreed voluntary regulation was an effective means of encouraging compliance

66%

4%2%

24%

3%0%

Agree

Disagree

Strongly agree

Unsure

Strongly disagreeNo response

Where it makes sense, this consultation summary report will distinguish the views of stakeholder groups.

On some issues, however, there was common agreement. In particular the interests of both stakeholder groupings were seen to be advanced by the delivery of greater awareness, visibility, timeliness and transparency in the complaints handling process.

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4 Stakeholder feedback was provided on all aspects of the complaints handling process

This section summarises stakeholder feedback on the complaints handling process under the MAIF Agreement from both the survey and interviews. Stakeholder feedback and suggestions for improvement have been presented against the following themes:

awareness and visibility of the complaints handling process

timeliness of the complaints handling process

transparency of the complaints handling process

consequences of complaints handling decisions

Tribunal independence and industry precedents, and

the role of the Department of Health.

4.1 Awareness and visibility of the complaints handling processOverall, the stakeholders who responded to the survey or were interviewed think that the general awareness of the MAIF complaints handling process is poor. The majority of stakeholders Nous consulted are aware of the role of the Tribunal and MAIF complaints handling process but a clear majority of survey respondents (96%) do not think enough has been done to increase awareness of the complaints handling process in the general community. This view was shared by the Tribunal.

Examples of stakeholder comments regarding the awareness of the complaints handling process include:

There is generally poor awareness and visibility of the complaints handling processThe vast majority of survey respondents do not think that enough has been done to increase awareness in the community about the MAIF Agreement (96%) or the complaints handling process (96%). Levels of awareness of different components of the complaints handling process differ between stakeholder groups. Stakeholders who engage more closely and regularly with the MAIF Agreement, including health professionals and organisations, and industry, generally having higher levels of awareness than stakeholders that do not, such as consumers and members of the general public.

The majority of survey respondents are aware of the role of the Tribunal and the MAIF complaints handling process (67%) and know how to lodge a complaint about a potential breach of the MAIF

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Agreement (62%).5 These results are more pronounced for health professionals and organisations than for consumers and members of the general public.6 In particular, stakeholders from various groups noted that there was poor communication of what was happening with the MAIF Agreement when the APMAIF was disbanded and this led to a lower awareness than what existed previously.

In the interviews, MAIF Agreement signatories indicated that they are generally very familiar with the complaints handling process. However, some stakeholders expressed a view that non-signatory and new signatory industry players have limited awareness of the MAIF Agreement and the complaints handling process which negatively impacts their ability to adhere to, and the value of, the MAIF Agreement.

From the health professionals and organisations, consumer and general public, and state government stakeholders, there was a general consensus that finding out information about the MAIF Agreement, complaints handling process and submission of complaints is difficult. The majority of signatories did not comment on the accessibility of information and the complaints submission process. The Tribunal commented that the small number of complaints received would suggest poor awareness amongst the general public.

Health organisations and some state government stakeholders stated that information on the MAIF Agreement and the complaints handling process is difficult to find.7 They indicated that the relevant Department of Health webpages are only possible to find if a person is familiar with the MAIF Agreement and knows what they are searching for. The same stakeholders expressed a view that the current MAIF Agreement webpage is difficult to navigate with people reporting broken links and a suboptimal layout. Finally, some stakeholders acknowledged that they faced difficulty when submitting complaints due to the inaccessibility of the form which cannot be filled in online, lack of resources to submit a detailed complaint, uncertainty about complainant confidentiality and confidence in the system to do so.

Stakeholders would like greater education, promotion and accessibility to make a complaint

Table 2 Stakeholder suggestions to improve awareness and visibility

Consistently across all stakeholder groups, interviewees and survey respondents called for greater education on the MAIF Agreement and its complaints handling process. The majority of stakeholders, including current signatories, requested greater education for industry players. They suggested that the Department of Health or the Tribunal should proactively and formally reach out to new market entrants

5 Survey6 Survey 7 Interviews

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and existing non-signatories informing them of the MAIF Agreement and its importance. Additionally, the non-industry stakeholders expressed that there is room for improvement around education and promotion of the MAIF Agreement and complaints handling process to health professionals and organisations as well as consumers and the general public.8 Suggestions included direct promotion to consumers, such as information packs for new parents and flyers in frequented stores, information given to families when they leave hospital and greater media coverage, including television, radio and social media advertising.9

Stakeholders also indicated that they want to have improved access to information and ease of complaints submission. Specifically, several interviewees requested improvements to the Department of Health website including easier navigation and available information on the Tribunal, the Terms of Reference, the complaints handling process, breaches and decision rationale.10 Finally, stakeholders called for an easier complaints submission process through a fully electronic submission form which is accessible for people with disabilities or from Culturally and Linguistically Diverse (CALD) backgrounds.

4.2 Timeliness of the complaints handling process Across the stakeholder groups, there is general consensus that the complaints handling process is not timely. Interviewees and survey respondents commented on the timeliness of all components of the complaints handling process from complaint submission through to signatories taking action once a breach is upheld.

Examples of stakeholder comments regarding the timeliness of the complaints handling process include:

Overall, stakeholders felt that the timeliness of the process was poorThe majority of interviewed stakeholders believed that there is poor timeliness from complaint to resolution. Non-industry stakeholders who had submitted a complaint in the past were particularly privy to the length of time it can take for a complaint to reach a decision point and, if deemed a breach, action. These stakeholders suggested that the greatest time period of perceived inaction occurs between the Tribunal receiving the submission and meeting to discuss it, and from when the Tribunal makes a decision to when it is publicly reported.

The signatories to the Agreement were also concerned about timeframes, particularly the length of time the Tribunal has taken to determine a breach. The original Terms of Reference for the Tribunal provided that complaints should be resolved within three months after an ‘in scope’ complaint has been received by the Secretariat,11 however, industry stakeholders commented that the Tribunal had not been able to

8 Survey9 Survey10 Interviews11 MAIF Agreement Complaints Tribunal Terms of Reference (www.infantnutritioncouncil.com/wp-content/uploads/2014/11/MAIF-

Agreement-Committee-ToR-FINAL-.pdf)

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adhere to these timeframes. Negotiations are underway for the time limit to be reduced to either one or two months.

Most industry signatories indicated that when they were subject to a complaint, the timeframes that the Tribunal and Secretariat provided for them to respond with information were fair. The Tribunal commented that the signatories are always extremely timely with their submissions in response to the Tribunal’s requests.

Finally, many stakeholders in interviews and the survey believed that the Tribunal waits too long to publish its decisions in its annual report. They said that they felt particularly strongly about this due to the track record of the Tribunal releasing annual reports 12 to 14 months after the end of the year being reported.

The Tribunal acknowledged that its timeframes had been less than optimal and noted that a steep learning curve and a lot of ‘teething’ issues had impacted adversely on their timeframes in the initial years of operation.

Stakeholders want to see shorter and enforced timeframesTable 3 Stakeholder suggestions to improve timeliness

The majority of stakeholders, including Government, health professionals and organisations, and consumers and members of the general public, want shorter and enforced timeframes from complaint submission to resolution. This includes placing a time limit on each stage of the complaints handling process.

Interviewees in particular called for reporting in greater frequency, suggesting publication of decisions and their rationale on the Department website or other relevant platforms as they are made by the Tribunal.

4.3 Transparency of the complaints handling process Many stakeholders were generally dissatisfied with the transparency of the complaints handling process. In the interviews and online survey, respondents made comments and suggestions on the transparency of different components of the process including complaints submissions, decision making and rationale, and reporting.

Examples of stakeholder comments regarding the transparency of the complaints handling process include:

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Transparency differs at different stages of the complaints handling processThe majority of stakeholders were dissatisfied with the overall transparency of the complaints handling and reporting process (57%).12 Consumers and members of the general public felt more strongly that the complaints handling process is not transparent compared to other stakeholders including health professionals and organisations. Under half (40%) of survey respondents did not think that the decision about whether a complaint is in breach and its rationale is communicated effectively.13

Several stakeholders commented on the transparency of decisions about whether a complaint was in or out of scope. Some stated that they were unsure whether it was the Department or the Tribunal which made decisions on which complaint submissions were in and out of scope and why. Some 38% of the survey respondents did not think that whether a complaint is in or out of scope is communicated effectively.

These experiences have led to a number of stakeholders expressing views that they are less trusting of the Tribunal and the overall effectiveness of the complaints handling process since the APMAIF was disbanded.

Industry players were broadly open to engaging with the Tribunal and each other to improve outcomes and the value from a voluntary industry regulation agreement.

Stakeholders want publicly accessible dataTable 4 Stakeholder suggestions to improve transparency

Stakeholders from across the stakeholder groups believed that increased public availability of complaints data (57%) including submissions, in and out of scope decisions (and their rationale), and breach decisions and their rationale would improve the transparency of the process and engender great trust. They suggested that this could be done through the Tribunal or the Department making announcements of decisions as they are made, in conjunction with more regular and timely annual reporting (50%). A number of health professionals and organisations, consumers and members of the general public and

12 Interviews13 Survey

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Government stakeholders also called for greater sharing of the decisions and their rationale in a more timely fashion than the Annual Report.

To further increase the public transparency of the process, stakeholders suggested that the Department and Tribunal utilise consistent and electronic complaint number tracking. This will allow people and organisations who submit complaints to request information at any time on what stage of the complaints handling process their submission has reached.

Some of the interviewed signatories requested that the Tribunal shares breaches and their rationale more broadly within the industry so companies can learn from each other’s mistakes. This broader sharing was strongly advocated by the INC and is understood to be under negotiation in the revised Terms of Reference process. Industry players were broadly open to engaging with the Tribunal and each other to improve outcomes and the value from a voluntary industry regulation agreement.

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4.4 Consequences of complaints handling decisions Stakeholders acknowledged that the potential for reputational damage was the only external consequence for breach.14 That is, the only consequence beyond those which the company voluntarily enforces upon itself through changes to internal processes and its people. Stakeholders differed, however, on how appropriate they considered this consequence to be.

Examples of stakeholder comments pertaining to the appropriateness of consequences include:

Stakeholders do not share a common view of the extent to which the MAIF complaints handling process influences industry behaviourInterviewed industry signatories emphasised the severity of the internal consequences of a breach and the seriousness with which they regard a breach. They felt the significant organisational change brought about by a breach was a sign that the current consequences are appropriate.15 Industry stakeholders also stressed the importance of reputation in business, and noted breaches are visible on a global scale within industry.

Industry stakeholders also emphasised the role of competitive complaints within the industry itself, whereby signatories lodge complaints against one another and the complaint is settled through the INC. This internal mechanism, available to members of INC provides a forum for signatories to monitor each other’s behaviour, and further ensures compliance with the MAIF Agreement. Industry stakeholders noted the competitive impetus to monitor each other’s marketing behaviour, however also stressed the seriousness with which industry takes the role of infant formula in reducing infant mortality.

Most health professionals and organisation representatives, and other non-industry stakeholders, held the opposite view, suggesting that consequences for breach should be tougher.16 These stakeholder groups largely considered the current ‘name and shame’ approach as carrying little to no weight within industry, and no incentive for infant formula manufacturers and importers to comply with the MAIF guidelines.17 This view was consistently expressed across interviews and through online submission by non-industry stakeholders. During interviews, a significant proportion of non-industry stakeholders expressed a belief that findings of breach did not influence industry behaviour. Through online submission, 58% of consumers and members of the general public (n = 124), and 59% of health professionals and organisations (n = 44), indicated that they did not think the MAIF complaints handling process influences industry behaviour. This finding is also reflected in non-industry stakeholder perceptions of the poor timeliness and transparency of the complaints handling process, discussed above in Sections 4.2 and .

14 During interview, 71% of all stakeholders identified potential reputational damage as the only consequence of breach. All signatories interviewed identified the additional internal consequence of significant changes to company practice.

15 All signatories interviewed by Nous expressed a view that internal responses to findings of breach were both substantive and sufficient. 16 This view was both expressed during interview and through online submission. Of those stakeholders interviewed, 50% (all non-

industry stakeholders) felt that reputational damage was an inadequate consequence of breach.17 In a survey undertaken by Nous, 58% of consumers and members of the general public, and 59% of health professionals/organisations,

indicated that they did not think the MAIF complaints handling process influences industry behaviour.

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Non-industry stakeholders perceive a need to increase the severity of consequences for breachThe majority of consulted non-industry stakeholders expressed a need for increased consequences for breach, suggesting the current threat of reputational damage does not play out in practice. They suggested that increased consequences for breach could provide a greater incentive for signatories to comply with the MAIF guidelines. While all signatories interviewed by Nous emphasised how seriously their organisation considers breaches, this was not the perception of non-industry stakeholders. Non-industry stakeholders identified an increase in the severity of consequence for breach as a way to improve the fairness, effectiveness and efficiency, of the MAIF complaints handling process.

Table 5: Stakeholder suggestions to increase severity of breach consequences

Stakeholdergroup Suggestion

Impose financial penalties on companies found to be in breach

Take legal action against companies found to be in breach

Impose trading restrictions on companies found to be in breach

Shift to mandatory regulation, potentially with legislative backing

These suggestions broadly aligned with a general perspective across non-industry stakeholders that voluntary regulation is an ineffective means of regulation, as shown in Figure in Section 3.2.

4.5 The role of the Tribunal in the complaints processWith the disbandment of the former APMAIF, the industry signatories were left without a complaints determination body. After 12 months of negotiation, they set up and funded an arrangement with The Ethics Centre (TEC) to appoint a Tribunal and provide secretariat services. Industry saw TEC as an organisation with a credible ethical stance that would ensure that complaints were seen to be determined in a fair manner, without the undue influence of industry, who were funding the arrangement.

Stakeholders held a range of views about the effectiveness of this arrangement. Examples of stakeholder comments pertaining to the Tribunal include:

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Stakeholder views differed with respect to the perceived independence of the Tribunal Industry stakeholders emphasised that their intent in asking The Ethics Centre to establish the Tribunal was to ensure its independence, and the perception of independence. Industry stakeholders emphasised their lack of influence over The Ethics Centre, despite their funding of the Tribunal. The Tribunal secretariat had effectively ‘created a wall’ between the Tribunal and the industry parties to ensure that it was not seen to be influenced in its decision-making by its funding relationship with industry. Industry pays The Ethics Centre approximately $52,000 per annum to run the Tribunal and secretariat. The Terms of Reference, which are currently under further negotiation, determine the arrangements between industry and the TEC and Tribunal.

While industry continues to value the independence of The Ethics Centre in resolving complaints, a common sentiment was a desire for increased engagement in the process, to ensure the learnings are able to be fed back to industry, and to ensure that the Tribunal members understand the industry context. Industry stakeholders consistently called for a voice in the Tribunal’s complaints determination process, as had been the case with the former APMAIF arrangement, suggesting the addition of industry expertise would increase the fairness of the process.

Further, industry stakeholders considered themselves to have a legitimate interest in the effective functioning of the process they are funding, which they felt was not currently catered to, partly due to the wall created between the Tribunal and industry, and partly due to a lack of corporate knowledge. The INC has sought to be copied into complaints correspondence; however this has not been formally adopted by The Ethics Centre. Similarly, The Ethics Centre has not agreed to the INC, as the industry representative, being involved in any way unless the breastfeeding advocates were similarly involved. These matters continue to be negotiated in the revisions to the Terms of Reference (due to be finalised at the end of July 2017).

The need for increased representation of differing perspectives within the Tribunal’s deliberations, predominantly through membership of the Tribunal, was a theme emerging from across stakeholder groups. Consumers and health advocates/professional stakeholders also called for increased representation of in the Tribunal process.18 These suggestions are consistent with a perceived strength of the former APMAIF, which was its more collaborative approach to complaints resolution. Stakeholders considered this collaborative approach as potentially fairer than the current approach, as it considered a variety of perspectives before determining a breach.

By contrast, some non-industry stakeholders perceive an inappropriate influence of industry over the Tribunal. A small minority of stakeholders called for the removal of all industry presence from the complaints handling process, which was often associated with a distrust of profit-maximising behaviour.

18 During interview, 36% of stakeholders expressed this view.

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4.6 Precedents and GuidelinesA strong theme emerging from consultations with industry members and representatives was a desire for greater certainty about the kinds of marketing approaches that would breach the Agreement. Industry stakeholders felt that there had been a huge loss of knowledge when the APMAIF was disbanded and that this has created uncertainty for signatories.

These concerns revolve around the use of precedents by the Tribunal, and the responsibility for updating the Guidelines.

Industry stakeholders felt that lack of guidance as to what does, and does not, comprise a breach of the MAIF Agreement undermined signatories’ ability to predict which marketing practices would be allowable, and therefore which practices they should pursue. Some industry stakeholders believed that the Tribunal had made incorrect declarations of breach in the past (notably in relation to Toddler milk), suggesting this derived from a lack of understanding of the MAIF Agreement.

Confusion was also noted by industry stakeholders around the ownership of, and responsibility for updating, the Guidelines that had previously been owned and updated by the APMAIF. Industry stakeholders noted that the creation of Guidelines is within the Tribunal’s Terms of Reference; however they did not think the Tribunal recognised the development of guidelines as part of its role. This was confirmed by the Tribunal, which advised that it has not seen the updating of guidance material as a legitimate part of its role.

The underlying desire for greater clarity as to what constitutes a breach of the Agreement was held across stakeholder groups. Suggestions as to how this clarity could be achieved are included in Table 6, below.

Table 6: Stakeholder suggestions to increase clarity

Stakeholder group Suggestion

Greater guidance around examples of breach and non-breach complaints

Attaching suggested remedying courses of action to findings of breach

Establishing a doctrine of precedent to increase the internal consistency between determinations

Appoint a dedicated Secretariat to the Tribunal

In and Out of Scope DecisionsInterviews with the various stakeholders confirmed that there is confusion as to the role of the Tribunal vis a vis the Department on the issue of determining whether a complaint is in or out of scope. There appears to have been agreement at some point after the disbandment of the APMAIF that the Department would continue to receive complaints and determine whether they are in or out of scope

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and pass on the ‘in scope’ complaints to the Tribunal for investigation. No documentation of this decision was accessed. The Tribunal believes that it must investigate every complaint sent to it by the Department as de facto ‘in scope’. The Department advises that it sometimes sends through complaints where it is uncertain whether it is in or out of scope and expects the Tribunal to exercise its judgement on whether it is in or out of scope.

Secretariat functionIndustry stakeholders felt there had been a huge loss of knowledge when the former APMAIF secretariat was disbanded. The Tribunal agreed that it has faced a challenging task in working through the administration of the process and in developing streamlined arrangements with the Department when the APMAIF secretariat had been disbanded for over a year and considerable corporate knowledge had been lost as personnel in the Department changed. It has been difficult for the Tribunal to operate efficiently without experience at servicing a Tribunal and without any prior knowledge of the context of the MAIF Agreement or the operational requirements of the process.

4.7 The role of the Department of Health Stakeholders generally appeared to be aware of the Department of Health’s responsibility for ensuring Australia’s obligations under the WHO Code are met. However most stakeholders in both the survey and interviews were dissatisfied with the current role of the Department in the complaints handling process. Opinions differed as to the optimal role of the Department, with some stakeholders wanting the role of the Department to be increased and others calling for the Department to remove itself from the process altogether due to a perceived inefficiency.

The backdrop of views regarding the efficacy of self-regulation (as discussed in section 3 above) coloured some of the commentary. Although not relevant to the complaints handling process, the perceived gaps between Australia’s obligations under the WHO Code, and the content of the MAIF Agreement, was pointed to as indicative of poor Departmental understanding of the Code by a significant proportion of signatories.

Examples of stakeholder comments pertaining to the role of the Department include:

Stakeholders do not have a shared understanding of the role of the Department in the complaints handling processWhile most stakeholders saw a continuing role for the Department in the complaints handling process, only a minority of those interviewed had clarity on what this role currently is. Others, predominantly non-industry, lacked clarity on the relationship between the Department and The Ethics Centre. Some went so far as to suggest that the Department and The Ethics Centre themselves shared this lack of understanding.

As noted in the previous section, industry stakeholders and the Tribunal commented that the Department at times forwards complaints to the Tribunal when they are unsure whether the complaint

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is in or out of scope. While the Department viewed this as an opportunity for the Tribunal to determine whether the complaint was in or out of scope, the Tribunal advised that it believes it is required to consider any complaint forwarded by the Department and has no discretion to consider it out of scope.

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Both industry and non-industry stakeholders wanted the Department to play a stronger role in the complaints handling process Industry stakeholders generally held a clear view that the Department’s current role is insufficient to fulfil its obligations under the WHO Code. These stakeholders did not believe the Department was sufficiently involved in Tribunal meetings and that a huge amount of corporate knowledge and enthusiasm had been lost when the APMAIF was disbanded.

This was consistent with a general industry disappointment towards the disbandment of APMAIF, which they considered a more collaborative and fairer approach to complaints handling than the current process. Stakeholders also associated a loss of relevant Departmental expertise with the closure of APMAIF. An example raised was the Department’s history of forwarding out-of-scope complaints relating to toddler formula onto the Tribunal for consideration.

While industry stakeholders did not attribute the closure of APMAIF to the Department (but rather to the Government), they did perceive a lack of initiative on the Department’s behalf in attempting to resolve the resulting gap or to put in place streamlined arrangements between the Tribunal and the Department. The Tribunal had encountered many teething problems in taking over part of the process, including access to complainant’s email addresses, different numbering systems on complaints and different reporting of the numbers of complaints.

One suggestion raised by stakeholders was for the Department to enforce timeliness and transparency requirements on the Tribunal, thereby increasing its role and fulfilling its obligations to monitor the complaints handling process. Departmental stakeholders, advised that did not have any influence over the operations of the Tribunal.

Stakeholders saw a need to improve the functionality of the Department’s websiteMany survey respondents (43%, n = 180) and interviewees, including industry stakeholders, suggested improvements to the Department’s website would increase the effectiveness, efficiency and quality of the complaints handling process. Calls for improvement included a re-vamp of the website, providing more information about the MAIF Agreement and the complaints handling process, as well as making this information easier to find.19 Interviewees felt that information on how to lodge a complaint is not clearly visible and that it requires a lot of determination to actually find how to lodge a complaint. Internet search engine responses are not helpful.

Stakeholders across groups also desired the publication of more detailed data relating to complaints, their resolution, and the rationale behind these decisions on the Department’s website. In addition, stakeholders suggested the website be updated to allow for the submission of complaints by e-form, and online tracking of the progress of complaints through a reference number.

19 Survey and interview

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Appendix A Key lines of enquiry for the reviewKey Lines of Enquiry Guiding questions Research questions

KLE 1:How effective and efficient is the complaints handling process?

How many complaints and breaches have been reported?

How many complaints were reported to the Department? How many were considered in and out of scope?

What communications did complainants receive during this process? Did they receive a rationale for the decisions made?

How many complaints were passed on from the Department to the Tribunal?

How many were in breach? How many were out of scope?

Who committed the breaches? What was the nature of the breaches? Do the same signatories keep committing the breaches?

How appropriate are the consequences for breaches?

What are the consequences for a breach?

How appropriate are the consequences? Should a breach incur a tougher consequence?

Are signatories provided with suitable guidance after a breach?

Is there an appeals process in place? Should this be considered?

To what extent are stakeholders aware of the complaints handling process?

How aware are stakeholders of the role of the Department and the Tribunal and the whole complaints handling process?

What has been done to increase communication with the community and raise awareness about the MAIF Agreement and complaints handling process? How effective has this been?

Are stakeholders aware how they register a complaint?

How effective is the complaints handling process in overseas jurisdictions or other industries?

How effective are models of voluntary industry regulation? What is the complaints handling process in these models?

How effective are international models for implementation of the WHO Code and their associated complaints handling process?

KLE 2:How fair, timely and transparent is the complaints handling process?

How timely and transparent is the decision making process?

How timely is the decision making process from initial complaint to the Department to a resolution?

How timely is the Department in responding to complainants about the progress and outcomes of their complaint? (whether it is in/out of scope)

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Key Lines of Enquiry Guiding questions Research questions

How transparent is the Department’s role in defining in- and out-of scope complaints? How appropriate and transparent is their response to complainants?

How transparent is decision making? Are stakeholders aware of the rationale for decisions?

How are complaints, breaches and decisions reported? Are these sufficiently transparent?

To what extent are stakeholders satisfied with the transparency of the whole complaints and reporting process? What actions can be taken to increase stakeholder satisfaction?

How effective is the Department in supporting the Tribunal?

To what extent does the Department have a clear understanding of the MAIF Agreement and its scope?

How appropriate is the Department’s current role in supporting the MAIF Agreement and the MAIF Tribunal?

What guidance does the Tribunal receive from the Department? Is there a need for more guidance material? If so, what should this guidance cover?

What is the value of the Department overseeing the Tribunal?

KLE 3:What changes should be made to improve complaints handling process?

What suggestions do stakeholders have to improve the effectiveness of the complaints handling and reporting process?

What are the main strengths and weaknesses of the complaint handling and reporting process?

What improvements should be made to improve the effectiveness of the complaint handling and reporting process?

How can the quality and efficiency of the complaints process be improved?

What improvements should be made to improve the efficiency and quality of the whole complaints process?

How can the timeliness, transparency and fairness of the process be improved?

What changes should be made to improve the timeliness, transparency and fairness of the whole complaints handling process?

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Appendix B Stakeholders that participated in this review

B.1 InterviewsStakeholder Interview Status

Commonwealth Government

Preventive Health Policy Branch, Australian Government Department of Health Completed

Food and Nutrition Policy Section, Australian Government Department of Health Completed

Australian Competition & Consumer Commission Submitted feedback via email

Other Health Departments*

Victorian Department of Health and Human Services Submitted feedback via email

Department of Health and Human Services Tasmania Completed

New Zealand Ministry of Health Completed

Signatories

Abbott Australasia Completed

Aspen Nutritionals Australia Completed

Bayer Australia Completed

Bubs Australia Ltd (The Infant Food Company) No response

H J Heinz Company Australia Completed

Nestle Australia Completed

Nutricia Australia Completed

The a2 Milk Company Completed

Australian Dairy Park Pty Ltd Declined - Do not sell infant formula

Nature One Dairy Unavailable for interview

Murray Goulbourn Co-operative No response

Freadom Foods No response

Lactation Consultants of Australia and NZ Completed

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Stakeholder Interview Status

Wattle Health Declined - only 1 month as signatory

Tribunal

The Ethics Centre (MAIF Tribunal Secretariat)Simon Longstaff – Executive DirectorLeigh Woodgate – Tribunal Secretariat

Completed

MAIF Complaints Tribunal MembersGraeme Innes – Tribunal Chair

Completed

Other

Australian Breastfeeding Association Completed, additional information provided

Australian College of Midwives Completed

Consumers Completed

Infant Nutrition CouncilJan Carey – CEO

Completed

Dietician’s Association of Australia Completed

Venessa Tripp – Former APMAIF Chair Completed

*All State and Territory Health Departments were offered the opportunity to participate in the consultation process.

B.2 SurveyWe received 180 online submissions in response to the survey.

Detailed survey results, including respondent groupings, are provided in the following Appendix.

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Appendix C Detailed survey results

C.1 Respondent detailsSome questions have been omitted for the sake of maintaining respondent anonymity.

What group do you or your organisation best align to?

Response # % total

Consumer or member of the general public 124 68.9

Health professional / organisation 44 24.4

Other - Write In (Required) Mother Department of Health Pharmacy Nurse Australian Breastfeeding Association

4 2.2

Consumer group 3 1.7

Industry representative 3 1.7

Government agency 1 0.6

Infant formula manufacturer or importer - Signatory to the MAIF Agreement 1 0.6

No response 0 0.0

Figure 3: What group do you or your organisation best align to?

69%

24%

2%2%1%

1%2% Consumer or member of the general public

Health professional / organisationOther

Signatory to MAIF AgreementGovernment agencyIndustry representativeConsumer group

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Have you or your organisation ever submitted a complaint to the Department of Health through the MAIF complaints handling process?

Response # % total

Yes 58 32.2

No 122 67.8

No response 0 0.0

Figure 4: Have you or your organisation ever submitted a complaint to the Department of Health through the MAIF complaints handling process?

68%

75%65% 70%50% 55% 60% 80% 85% 90% 95% 100%10% 15%5% 45%0% 30% 35% 40%20% 25%

N = 1800% 32%

YesNoNo response

Was this complaint, or any complaint if more than one, made within the last three years?

Response # % relevant*

Yes 33 56.9

No 24 41.4

No response 1 1.7*Percentage of relevant total takes account of the total number of respondents who answered ‘Yes’ to the previous question.

Figure 5: Was this complaint, or any complaint if more than one, made within the last three years?

41%

75%65% 70%50% 55% 60% 80% 85% 90% 95% 100%10% 15%5% 45%0% 30% 35% 40%20% 25%

N = 582% 57%

YesNoNo response

Has your organisation ever been subject to a complaint?

Response # % relevant

Yes 1 1.8

No 55 98.2

No response 0 0.0*Percentage of relevant total excludes those respondents who identified as Consumers or members of the general public.

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Figure 6: Has your organisation ever been subject to a complaint?

98%

15% 20%10%5%0% 25% 30% 35% 65%60% 75%70%40% 45% 50% 55% 95% 100%80% 85% 90%

2% N = 560%

NoNo response Yes

Was this complaint, or any complaint if more than one, made within the last three years?

Response # % relevant

Yes 1 100.0

No 0 0.0

No response 0 0.0*Percentage of relevant total includes those respondents who answered ‘Yes’ to the previous question.

Figure 7: Was this complaint, or any complaint if more than one, made within the last three years?

50%45%40%35%30%25%20%15%10%5%0% 100%95%90%85%80%75%70%65%60%55%

N = 10%0%

100%

YesNoNo response

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Appendix D Awareness about the complaints handling process

Voluntary regulation is an effective means of encouraging compliance

Response # % total

Strongly agree 6 3.3

Agree 8 4.4

Unsure 4 2.2

Disagree 44 24.4

Strongly disagree 118 65.6

No response 0 0.0

Figure 8: Voluntary regulation is an effective means of encouraging compliance

66%

4%2%

24%

3%0%

Agree

Disagree

Strongly agree

Unsure


I am aware of the role of the Tribunal and the MAIF complaints handling process

Response # % total


Agree 83 46.1

Unsure 9 5.0

Disagree 37 20.6


No response 0 0.0

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Figure 9: I am aware of the role of the Tribunal and the MAIF complaints handling process

7%

46%

5%

21%

21%

0%

Agree

Disagree

Strongly agree

Unsure


I know how to lodge a complaint about a potential breach of the MAIF Agreement

Response # % total


Agree 83 46.1

Unsure 9 5.0

Disagree 42 23.3


No response 0 0.0

Figure 10: I know how to lodge a complaint about a potential breach of the MAIF Agreement

9%

46%

5%

23%

16%

0%

Agree

Disagree

Strongly agree

Unsure


Enough has been done to increase awareness in the community about the MAIF Agreement/ complaints handling process

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MAIF Agreement

Response # % total


Agree 1 0.6

Unsure 6 3.3

Disagree 21 11.7


No response 0 0.0

MAIF complaints handling process

Response # % total


Agree 1 0.6

Unsure 6 3.3

Disagree 31 17.2


No response 0 0.0

Figure 1: Enough has been done to increase awareness in the community about the MAIF Agreement/ complaints handling process

1%

1%

3%78%

180

Complaintshandlingprocess

Agreement1%

3%84%12%

1801%

17%

Strongly agree Agree Strongly disagreeUnsure Disagree

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Do you have any suggestions about how to further increase awareness about the MAIF Agreement or the complaints handling process?

Theme # % total

Promotion to consumers (e.g. information packs for new mothers, flyers in stores) 51 28.3

Greater media coverage (incl. television, radio, social media) 44 24.4

Promotion to health professionals 21 11.7

Shift from voluntary regulation to mandatory 18 10.0

Create guidance materials on how to submit a complaint 11 6.1

Include complaints handling process information on formula tins 10 5.6

Promotion to retailers 8 4.4

Submission needs to be simpler 5 2.8

Increased role of the Government 5 2.8

Educate the public about the benefits of breastfeeding 5 2.8

Implement WHO Code fully 5 2.8

No response 57 31.7*Percentages may exceed 100% where respondents’ answers included more than one suggestion/theme. Only those themes represented in over 2% of responses have been included.

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Appendix E Timeliness and transparency of the decision making process

The MAIF complaints handling process is timely

Response # % total


Agree 21 11.7

Unsure 95 52.8

Disagree 37 20.6


No response 0 0.0

Figure 2: The MAIF complaints handling process is timely

14% 12%

53%

21%

1%0%

Agree

Disagree

Strongly agree

Unsure


The MAIF complaints handling process is transparent

Response # % total


Agree 18 10.0

Unsure 79 43.9

Disagree 49 27.2


No response 0 0.0

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Figure 3: The MAIF complaints handling process is transparent

18%10%

44%27%

1%0%

Agree

Disagree

Strongly agree

Unsure


The MAIF complaints handling process is fair

Response # % total


Agree 19 10.6

Unsure 77 42.8

Disagree 50 27.8


No response 0 0.0

Figure 4: The MAIF complaints handling process is fair

18%11%

43%28%

1%0%

Agree

Disagree

Strongly agree

Unsure


The decision about whether a complaint is in or out of scope is communicated effectively

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Response # % total


Agree 31 17.2

Unsure 80 44.4

Disagree 41 22.8


No response 0 0.0

Figure 5: The decision about whether a complaint is in or out of scope is communicated effectively

15% 17%

44%

23%

1%0%

Agree

Disagree

Strongly agree

Unsure


The decision about whether a complaint is a breach, and its rationale, is communicated effectively

Response # % total


Agree 27 15.0

Unsure 77 42.8

Disagree 47 26.1


No response 0 0.0

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Figure 6: The decision about whether a complaint is a breach, and its rationale, is communicated effectively

14%15%

43%

26%

2%0%

Agree

Disagree

Strongly agree

Unsure


Overall, the MAIF complaints handling process is effective

Response # % total


Agree 11 6.1

Unsure 52 28.9

Disagree 62 34.4


No response 0 0.0

Figure 7: Overall, the MAIF complaints handling process is effective

30%

6%

29%

34%

1%0%

Agree

Disagree

Strongly agree

Unsure


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What changes should be made to improve the timeliness, transparency and fairness of the MAIF complaints handling process?

Theme # % total

Enforce shorter timeframe for resolution 18 10.0


Increase application of Agreement and consequences for breach 15 8.3

Increase public availability of complaints data 14 7.8

Remove role of industry 10 5.6

Increase information about the process 8 4.4

Include retailers and pharmacies in scope 5 2.8

Include toddler milk in scope 5 2.8


Increase representation from health professionals and advocacy groups in process 4 2.2


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33%

17%

15%

24%

11%0%

Agree

Disagree

Strongly agree

Unsure



Appendix F Areas for improvementThe MAIF complaints handling process influences industry behaviour

Response # % total


Agree 30 16.7

Unsure 27 15.0

Disagree 43 23.9


No response 0 0.0

Figure 8: The MAIF complaints handling process influences industry behaviour

What improvements should be made to improve the effectiveness and efficiency of the MAIF complaints handling process?

Theme # % total

Increase consequence for breach (e.g. fines, legal action, trading restrictions) 26 14.4


Increase information about MAIF and complaints handling process 12 6.7



Increase timeliness of reporting 8 4.4

Increase public availability of complaints data 7 3.9

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Theme # % total



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Appendix G Further commentsDo you have any further comments that were not addressed in this submission form?

Theme # % total

MAIF itself is weak 33 18.3


Insufficiency of voluntary regulation 18 10.0

Reaffirming importance of protecting children 13 7.2

Self-regulation can work 4 2.2



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