Note: Last week's blog post by Magy Lee introduced the issue of the cross-border trade of infant milk formula. The following post by Brian Chan contributes to the discussion, further explaining the criminalisation of this particular product.

By Brian Chan, Research Assistant, University of Hong Kong, and Juris Doctor Candidate, Chinese University of Hong Kong

Local Hong Kong mothers who opt not to breastfeed their babies have been troubled by the constant shortage of baby formula. Parallel traders divert a large quantity of powered formula from the supply chain in Hong Kong to sell in Mainland China. The Administration of the Hong Kong Special Administration Region amended the Import and Export (General) Regulation in February to criminalise the unlicensed export of powdered formula.

Infant formula
This amended subsidiary legislation came into effect in March 2013. Travellers are not allowed to take more than two cans or 1.8 kg of infant formula out of Hong Kong. A maximum penalty of around £41,667 and two years’ imprisonment are imposed. Infant formula, under this new restriction, is defined as “a substance in powder form that is or appears to be for consumption by a person aged under 36 months and it or appears to be milk or milk-like substance in powder form to satisfy wholly or partly the nutritional requirement or a person aged under 36 months”.

After a few days of the introduction of this new restriction, 12 mainland visitors were wrongly arrested for carrying rice-based baby cereal across the border. This raised practical enforcement questions such as whether soya milk and juice are also prohibited. The regulation has been criticised for being vague, too broad, and hastily pushed through, leaving the Customs and Excise officers and travellers in confusion.

As a response to the newly imposed two-can restriction, parallel traders mobilise an even larger number of people including housewives and elders to transfer baby formula, despite the media reports on the first few convictions and fines by Magistrates. Close to every border checkpoint, boxes of milk powder on trolleys categorised by their brands are still observable. The only difference the new restriction seems to have made is the soaring market price of these baby products with the label “from Hong Kong” in Mainland shops.

Ever since the Chinese tainted milk scandal in 2008 where numerous babies were diagnosed with permanent liver damage, baby milk trafficking has been more of a cross-border issue. Baby milk traffickers also bulk-buy baby products in Netherland and ship them to China. As a result, the Dutch government ordered an investigation into persistent shortages of a few brands of baby formula in shops and supermarkets as well as their increasing price.

More details on Hong Kong’s newly imposed restrictions on baby formula can be found here.