Nancy E. Wight MD, IBCLC, FABM, FAAP
 As breastfeeding has increased, so has the need to recognize some legal and social issues which may affect it. Nursing mothers have asserted rights in a variety of lawsuits - under a number of legal theories, some successful, some not.1 Florida was the first state to enact comprehensive breastfeeding legislation in 1993. The law provided that a woman had a right to breastfeed in any place where she had a right to be, and served as a model for legislation in several other states including California.
Thirty-eight states and Puerto Rico have enacted some legislation associated with breastfeeding. California has enacted several significant breastfeeding laws on the following issues: (1) lactation services or information must be made available by all hospitals/maternity care facilities; (2) breastfeeding in public (note: that the law does not apply to breastfeeding at a private home of another); (3) jury duty; (4) accommodations for employed breastfeeding mothers; and most recently, (5) clarifying breastmilk storage rules for hospitalized infants. California breastfeeding advocates (and mothers!) should be aware of the following laws.
Cal. Health & Safety Code § 123360 and § 123365
1995 Cal ALS 463; 1995 Cal AB 977; Stats 1995 ch 463
Requires the Department of Health Services to promote breastfeeding in public health campaigns and requires hospitals to provide lactation support and consultation to patients.
Cal. Civ. Code § 43.3
1997 Cal ALS 59; 1997 Cal AB 157; Stats 1997 ch 59
Notwithstanding any other provision of law, a mother may breastfeed her child in any location, public or private, except the private home or residence of another, where the mother and child are authorized to be present.
Cal. Health and Safety Code § 1647
1999 Chapt 87 (AB 532)
Declares that the procurement, processing, distribution or use of human milk for the purpose of human consumption is considered to be a rendition of service rather than the sale of human milk.
Cal Code Civ. Proc. § 210.5
2000 Cal AB 1814; 2000 Cal ALS 266; Stats 2000 ch 266
Permits the mother of a nursing child to postpone jury duty for one year and eliminates the need for the mother to appear in person to request the postponement. The one year period may be extended upon written request of the mother.
Cal. Lab. Code §1030, 1031, 1032, 1033 (2001)
2001 Cal ALS 821; 2001 Cal AB 1025; Stats 2001 ch 821,
1030. Requires that employers provide break time to for an employee to
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express breast milk for the employee's infant child. The break time, if possible, is to run concurrently with any break time already provided to the employee.
1031. Requires that an employer make reasonable efforts to provide a room or other location, other than a toilet stall, for employees to express milk in private.
1032. An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.
1033. (a) Provides a civil penalty and for the issuance of a citation by the Labor Commissioner. Violations of provisions relating to breastfeeding are not considered misdemeanors.
2004 California Rules of Court (Note: this is not a statute).
Rule 859. Deferral of jury service
A mother who is breastfeeding a child may request that jury service be deferred for up to one year, and may renew that request as long as she is breastfeeding. If the request is made in writing, under penalty of perjury, the jury commissioner must grant it without requiring the prospective juror to appear at court.
Cal. Health and Safety Code § 1648
2006 Chapt 480 (SB 246)
Exempts a hospital from tissue bank licensure and regulation requirements for the purpose of collecting, processing, storing or distributing human milk collected from a mother for her own child. Requires specified standards for handing human milk in the hospital (HMBANA standards until DHS approves alternate standards).
There are still many possible areas of intersection of breastfeeding and the law. A major area breastfeeding advocates would like to see is the WHO Code put into law in California and the nation. A prior attempt in California (SB 1275, 2004; banning hospital distribution of formula marketing bags) was watered down, then defeated after a major formula company effort. Helpful websites to check periodically are listed below.
Reference:
Weimer DR. CRS Report for Congress: Summary of State Breastfeeding Laws and Related Issues, Congressional Research Service, The Library of Congress, Updated January 12, 2005; Order Code RL31633; maloney.house.gov/documents/olddocs/
breastfeeding/050505CRSReport.pdf
Websites:
www.wicworks.ca.gov/breastfeeding/Legislation/BFLaws.html
www.lalecheleague.org/Law/Bills11.html
www.ncsl.org/programs/health/breast50.htm
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