The following article, which appeared in Corporate Crime 
Reporter (Volume 10, Number 14, April 8, 1996), is 
redisseminated on the Internet with permission.

GERBER USES THREAT OF GATT SANCTIONS TO GAIN EXEMPTION FROM 
GUATEMALAN INFANT HEALTH LAW

In a little noticed victory for Gerber Products Company and 
other multinational corporations seeking to upend national 
health and safety laws as barriers to international trade, 
the Supreme Court in Guatemala earlier this year exempted 
imported baby food products from the country's tough infant 
health law.

According to former UNICEF legal advisor Leah Margulies, the 
Supreme Court decision represents the culmination of a 
successful four-year campaign waged by Gerber to force 
Guatemala to allow imports of Gerber food with packages 
picturing the healthy, fat Gerber baby.

In 1983, Guatemala became one of the first countries to 
adopt the International Code of Marketing of Breast Milk
Substitutes into law. The code and Guatemala's law were 
developed to protect the lives of infants by promoting 
breast-feeding over breast milk substitutes.

According to Margulies, the law forbids the use of pictures 
of babies on baby food labels for children under two years 
of age. One goal of the law and the code is to counter 
aggressive marketing by baby food companies aimed at 
convincing mothers their products are superior to breast 
milk for their babies, Margulies said.

"You don't want to market these products in any way that 
would induce the mother to use them inappropriately or 
abandon breast feeding," Margulies said. "Breast milk 
protects infants from a wide range of diseases and is more 
nutritious than any man-made replacement. A fat, chubby, 
blue-eyed westernized baby is an absolutely winning 
marketing strategy for Gerber. It seduces the mother into 
using baby food early. The idea behind the law prohibiting 
this kind of marketing is to minimize the corporate 
seduction of the mother. The law specifically bans images 
that idealize the products."

According to Margulies, in 1990, the Guatemala Ministry of 
Health required Gerber to remove the baby face from its 
packaging on foods for infants under the age of two. During 
negotiations with Gerber over the issue, the company was 
allowed to sell its product in noncomplying packages under a 
temporary permit. But, after several years had passed, "it 
became clear that Gerber did not intend to make the 
necessary changes to comply with the law, and Guatemala 
notified Gerber that it could no longer sell the 
nonconforming products in the country," Margulies said.

It was at this point, according to Lori Wallach, director of 
Public Citizen's Global Trade Watch, that Gerber began
threatening Guatemala with trade sanctions under the General 
Agreement on Tariffs and Trade (GATT) and other trade 
measures, such as the U.S. Generalized System of Preferences 
(GSP). "Upon the favorable and permanent resolution of this 
matter, we will withdraw all complaints before the CBI 
[Caribbean Basin Initiative], GATT and any other future 
instance before the authorities of the General System of 
Preferences," wrote Gerber's Vice President for Latin 
America, Frank T. Kelly to the president of Guatemala in a 
letter dated June 16, 1994. "We will be prepared to 
reactivate the defense of our efforts for our rights before 
the CBI, GATT, and in the Congress of the United States of 
America if a final and favorable resolution is not
reached in the short term."

Gerber argued to the Guatemalan government that the country 
was violating its Gerber baby trademark by not allowing it 
to use the picture on its food labels. After years of 
resisting Gerber's pressure, Margulies said, the government 
stopped enforcing the law in 1995, and earlier this year, 
the Guatemalan Supreme Court held that imported products 
were exempted from the law's dictates.

Gerber spokesman Van Hindes said that the company has been 
marketing infant food products, including pureed fruits,
vegetables, meats and infant cereals, in Guatemala for 50 
years. Hindes said that no Gerber-brand infant formulas are 
marketed or sold in Guatemala. 

Hindes called the infant health law a "trade restriction 
placed on U.S. goods by the government of Guatemala."
The courts of Guatemala ultimately ruled that the Guatemalan 
government "denied us the use of our trademark, which is an
intellectual protected property right," Hindes said. "The 
courts ruled that the law did not apply to our product,
and we were allowed to continue to import and sell our baby 
food, with the use of the Gerber baby trademark," Hindes 
said.  Public Citizen's Lori Wallach says that the Supreme 
Court of Guatemala, under the "threat of huge trade 
sanctions" agreed that Gerber's right to use its trademark 
"baby face" trumps Guatemala's domestic health laws.

Russell Mokhiber
202/429-6928
P.O. Box 18384, Washington  DC  20036