Liquid Gold: Antitrust and Consumer Protection in the Human Milk Industry

Human milk is a booming industry, and one that is vulnerable to anticompetitive behavior. As pervasive as human milk is, and how essential it is to the development of all humans, it is an often-overlooked product in the marketplace. This paper will explore the three sectors of the industry in the United States—nonprofit milk banks, for-profit milk product manufacturers, and peer-to-peer private transactions. Each sector of the industry presents its own antitrust and consumer protection issues. The nonprofit sector features the principal player, the Human Milk Banking Association of North America, who exhibits monopoly power. The for-profit sector features two companies, NI-Q and Prolacta Bioscience, competing for exclusive patents. This exclusionary patent behavior creates legal and costly barriers for competing firms to develop similar technology to participate in the marketplace. Finally, the private peer-to-peer transactions will focus on consumer protection issues. Competition inside these sectors and among these sectors is needed to protect those most vulnerable of citizens—infants and their mothers. Scientific research has long held that human milk is the preferred exclusive nutrition for infants until at least six months of age. As such, infants and mothers deserve access to safe human milk at a fair price which is only possible in a human milk industry free of monopolies