The CNMC suggests alternatives to the advertising ban on breast-milk substitutes

The National Commission on Markets and Competition (CNMC) has issued a report on the draft Royal Decree that will regulate the promotion, advertising and information of breast-milk substitutes and other infant foods, in which it suggests alternatives to the planned advertising ban and recommends strengthening the justification of several of its restrictions. The report, reference IPN/CNMC/039/26, responds to a request from the Ministry of Health and was released through an official press note dated 6 November 2026.

The draft rule pursues a recognised public health objective: promoting breastfeeding. To that end it bans advertising of infant formula and introduces limits on the promotion of other infant nutrition products, restrictions that are especially strict in health centres and pharmacies. The text also sets a minimum purchase price for the public sector and adds a sanctioning regime to guarantee compliance.

The CNMC's assessment

The CNMC does not question the objective, but examines the effects of the restrictions on the market. In its analysis, banning or limiting advertising has static and dynamic effects on operators: it can affect investment and innovation decisions and influence competition in the medium and long term. If incentives to innovate are reduced, the report warns, operators' improvement efforts may also be discouraged, from product quality and composition standards to their adaptation to the needs of infants and young children.

On that basis, the body recalls that protecting consumers' public health - especially infants and young children - may justify certain limitations, but these must respect the principles of better regulation. Its recommendations include strengthening the justification of some specific restrictions, in particular the one affecting milk-based drinks intended for young children and the ban on cross-promotion between products.

Why this report matters

CNMC reports in the rulemaking procedure do not bind the regulator, but carry considerable technical weight: they document the proportionality and competitive impact analysis of the measures, and are often cited later in litigation when a rule ends up challenged. For the affected operators - manufacturers, distributors, pharmacies and health centres - the document offers an advance map of the most contestable regulatory points and of the better-regulation arguments available.

The file also illustrates a growing line of work for the body: the assessment of draft rules at the request of ministries, in parallel with its sanctioning function. In the same week, the CNMC has featured in actions of a different kind, from the inspections in the energy markets to recent sanctioning proceedings in digital and telecommunications markets.

Sanctioning regime and minimum price: the two flanks to watch

Two elements of the draft deserve specific attention from legal departments. The first is the sanctioning regime, which will turn breaches of the advertising and promotion bans into infringements with economic consequences: brands' communication campaigns will have to be reviewed against the final text, including digital channels and indirect promotion. The second is the minimum purchase price for the public sector, an unusual measure that will condition commercial strategy in public health procurement and whose justification the CNMC also examines in the light of competition.

Cross-promotion - the practice of using non-banned products to give visibility to the whole range - is another point on which the report asks for reinforced reasoning, given its impact on the umbrella brand strategies common in the sector.

The recommendations, one by one

The report sets out a package of specific recommendations worth knowing in detail. Beyond strengthening the justification of the severest restrictions, the CNMC asks for less restrictive alternatives to be weighed to reach the same public health objectives; among them, supervision and control mechanisms ensuring advertising is truthful, clear and based on scientific evidence, and the use of behavioural economics techniques, a tool the body had already proposed in earlier reports on other regulations.

The Commission also asks for justification of the different regulation planned for health centres and pharmacies compared with other channels selling the same products, and for reconsideration of the compatibility of price intervention for purchases in health centres with public procurement rules. In the audiovisual field, it recommends adding an express reference to Law 13/2022, the General Audiovisual Communication Law, providing for cooperation mechanisms between health and audiovisual authorities, and clarifying the regime applicable to video-sharing platforms and to the parties involved in disseminating audiovisual commercial communications - a direct reference to the ecosystem of content creators and influencers. Finally, it calls for stronger coordination mechanisms between supervisory and sanctioning authorities and for specifying the responsible parties and the classification of infringing conduct.

The framework: the CNMC's advisory function

Report IPN/CNMC/039/26 falls within the body's advisory function, which can act at the request of the Legislative Chambers, the Government, ministerial departments, the Autonomous Communities, local corporations, professional associations, chambers of commerce and business and consumer organisations, or on its own initiative, under Law 3/2013 creating the CNMC. It is not the first time the Commission has examined an advertising regulation of sensitive products: in December 2025 it recommended reviewing the restrictions on advertising, promotion and sponsorship of tobacco-related products and devices, and in November 2024 it asked for the school nutrition rule to be adjusted to balance public health and competition.

Next steps

The draft Royal Decree continues its processing at the Ministry of Health. The CNMC report, as usual in these procedures, is a non-binding technical document: the final text may or may not incorporate its recommendations. Operators in the infant nutrition sector and health professionals will have to wait for the definitive version to know the exact scope of the advertising ban, the applicable exceptions and the sanctioning regime finally established.

The report, reference IPN/CNMC/039/26, was prepared at the request of the Ministry of Health in exercise of the CNMC's advisory function on draft rules. It is also worth noting that the press note released is a document intended for the media which the Commission itself describes as unofficial and non-binding, with reproduction permitted only if the source is cited, so the full analysis must be referred to the complete text of the report when published.

One technical nuance of the analysis deserves attention: the CNMC distinguishes between the static effects of the ban - the immediate restriction of advertising competition among current operators - and its dynamic effects, which affect future investment and innovation decisions. It is on this second plane, that of incentives to improve product quality and composition, where the report concentrates its warning about the opportunity cost of a poorly calibrated ban.

The CNMC's action on food advertising adds to other recent competition-law fronts reaching the courts, such as the first damages claim by hotels against Booking in Spain or the CJEU judgment on the FIFA agents' regime, another case of control of restrictive practices.

Frequently asked questions

What has the CNMC analysed?

The draft Royal Decree regulating the promotion, advertising and information of breast-milk substitutes and other infant foods, at the request of the Ministry of Health, in report IPN/CNMC/039/26 released on 6 November 2026.

What does the draft Royal Decree propose?

Banning advertising of infant formula, limiting the promotion of other infant nutrition products - with special strictness in health centres and pharmacies - setting a minimum purchase price for the public sector and establishing a sanctioning regime.

Does the CNMC oppose the rule?

It does not question the objective of promoting breastfeeding, but warns of the effects of the advertising ban on innovation and competition, and recommends strengthening the justification of several restrictions under better-regulation principles.

Is the report binding?

No. It is a technical report within the rulemaking procedure. The Ministry of Health may or may not incorporate its recommendations into the final text.

When will the Royal Decree enter into force?

The draft remains in processing and no official approval date appears in the documentation consulted.

Sources

• Official CNMC press note, "La CNMC sugiere alternativas a la prohibicion de publicidad y promocion de productos de alimentacion infantil", 6 November 2026 (report IPN/CNMC/039/26), consulted on 10 November 2026.