Access to Baby Formula Act of 2022
Floor Speech
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Mr. SCOTT of Virginia. Madam Speaker, I move to suspend the rules and pass the bill (H.R. 7791) to amend the Child Nutrition Act of 1966 to establish waiver authority to address certain emergencies, disasters, and supply chain disruptions, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows: H.R. 7791
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.
This Act may be cited as the ``Access to Baby Formula Act of 2022''. SEC. 2. AUTHORITY TO ADDRESS CERTAIN EMERGENCIES, DISASTERS, AND SUPPLY CHAIN DISRUPTIONS.
Section 17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786) is amended--
(1) in subsection (b), by adding at the end the following:
``(24) Supply chain disruption.--The term `supply chain disruption' means a shortage of supplemental foods that impedes the redemption of food instruments, as determined by the Secretary.'';
(2) in subsection (h)(8), by adding at the end the following:
``(L) Infant formula cost containment contract requirement.--
``(i) In general.--The Secretary shall require that each infant formula cost containment contract renewed or entered into on or after the date of the enactment of the Access to Baby Formula Act of 2022 includes remedies in the event of an infant formula recall, including how an infant formula manufacturer would protect against disruption to program participants in the State.
``(ii) Rebates.--In the case of an infant formula recall, an infant formula manufacturer contracted to provide infant formula under this section shall comply with the contract requirements under clause (i).
``(M) Memorandum of understanding.--Not later than 30 days after the date of the enactment of the Access to Baby Formula Act of 2022, the Secretary shall ensure there is a memorandum of understanding between the Secretary and the Secretary of Health and Human Services that includes procedures to promote coordination and information sharing between the Department of Agriculture and the Department of Health and Human Services regarding any supply chain disruption, including a supplemental food recall.''; and
(3) by adding at the end the following:
``(r) Emergencies and Disasters.--
``(1) In general.--Notwithstanding any other provision of law, during an emergency period, the Secretary may modify or waive any qualified administrative requirement for one or more State agencies if--
``(A) the qualified administrative requirement cannot be met by State agencies during any portion of the emergency period under the conditions which prompted the emergency period; and
``(B) the modification or waiver of such a requirement--
``(i) is necessary to provide assistance under this section; and
``(ii) does not substantially weaken the nutritional quality of supplemental foods provided under this section.
``(2) Duration.--A waiver established under this subsection may be available for a period of not greater than the emergency period and the 60 days after the end of such emergency period.
``(3) Definitions.--In this subsection:
``(A) Emergency period.--The term `emergency period' means a period during which there exists--
``(i) a public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247d);
``(ii) any renewal of such a public health emergency pursuant to such section 319;
``(iii) a presidentially declared major disaster as defined under section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.); or
``(iv) a presidentially declared emergency as defined under section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
``(B) Qualified administrative requirement.--The term `qualified administrative requirement' means a requirement under this section or a regulatory requirement issued pursuant to this section.
``(s) Supply Chain Disruptions.--
``(1) In general.--Notwithstanding any other provision of law, during a supply chain disruption, including a supplemental food product recall, the Secretary may modify or waive any qualified administrative requirement for one or more State agencies if--
``(A) the qualified administrative requirement cannot be met by State agencies during any portion of the supply chain disruption, including a supplemental food product recall, under the conditions which prompted such disruption or recall; and
``(B) the modification or waiver of such a requirement--
``(i) is necessary to provide assistance under this section; and
``(ii) does not substantially weaken the nutritional quality of supplemental foods provided under this section.
``(2) Waiver authority.--The Secretary may, under a waiver or modification under paragraph (1)--
``(A) permit authorized vendors to exchange or substitute authorized supplemental foods obtained with food instruments beyond exchanges for an identical (exact brand and size) food item;
``(B) waive any requirement with respect to medical documentation for the issuance of noncontract brand infant formula, except for the requirements for participants receiving Food Package III (as defined in section 246.10(e)(3) of title 7, Code of Federal Regulations (as in effect on the date of the enactment of this subsection));
``(C) waive the maximum monthly allowance for infant formula; and
``(D) waive any additional qualified administrative requirement to address a supply chain disruption, including a supplemental food product recall.
``(3) Duration.--A waiver or modification established under this subsection--
``(A) may be--
``(i) available for a period of not more than 45 days, to begin on a date determined by the Secretary; and
``(ii) renewed so long as the Secretary provides notice at least 15 days before such renewal; and
``(B) shall not be available after the date that is 60 days after the supply chain disruption for which such waiver is established ceases to exist.
``(4) Transparency.--
``(A) In general.--If the Secretary determines that a supply chain disruption exists and issues a waiver or modification under this subsection, the Secretary shall notify each State agency affected by such disruption and include with such notification an explanation of such determination.
``(B) Publication.--The Secretary shall make each determination described in subparagraph (A) publicly available on the website of the Department.
``(C) State agency requirements.--In the case of a waiver or modification under this subsection related to infant formula, a State agency notified under subparagraph (A) shall notify each infant formula manufacturer that has a contract with such State agency with respect to such notification.
``(5) Qualified administrative requirement defined.--For purposes of this subsection, the term `qualified administrative requirement' has the meaning given the term in subsection (r).''.
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Mr. SCOTT of Virginia. 7791, the Access to Baby Formula Act of 2022.
Madam Speaker, across the country, the ongoing shortage of formula is disproportionately hurting women and children who rely on the benefits through the WIC program, leaving them with few options to purchase safe formula for their infants. That is because about half of the infants in America participate in the WIC program.
In times of crisis, one of our core responsibilities as lawmakers is to ensure that families in need can continue to feed their children and keep them healthy.
While I am encouraged that the Biden administration and Abbott Nutrition have reached an agreement to restart formula production following the company's recall, the immediate consequences facing our children require additional action.
That is why the gentlewoman from Connecticut (Mrs. Hayes) and the gentlewoman from California (Mrs. Steel) and I took action to help vulnerable Americans provide their babies with the nutrition they need. One of the flexibilities in the WIC program that the Access to Baby Formula Act provides will allow families in need to use WIC benefits to purchase other safe and available infant formula products.
WIC vouchers can be limited to one brand product. This makes sense because a WIC program can require companies to bid for the privilege of participating. Having the power to limit participation to just one brand encourages vendors to agree to huge discounts.
Unfortunately, in a time of shortage, a voucher for a product not on the shelf is of no value. This bill allows flexibility in such a time so that parents will be able to purchase whatever brand is actually available.
This legislation reflects our commitment to ensuring access to formula for those who need it most, during both the current crisis and into the future.
Madam Speaker, I thank the gentlewoman from Connecticut and the gentlewoman from California for their urgent leadership on the Access to Baby Formula Act, and I urge my colleagues to join in taking a stand for our Nation's children.
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Mr. SCOTT of Virginia. Madam Speaker, I yield 4 minutes to the gentlewoman from Connecticut (Mrs. Hayes).
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Mr. SCOTT of Virginia. Madam Speaker, I yield 1 minute to the gentlewoman from California (Ms. Pelosi), the Speaker of the United States House of Representatives.
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Mr. SCOTT of Virginia. Madam Speaker, I yield 2 minutes to the gentlewoman from New York (Mrs. Carolyn B. Maloney), the chairwoman of the Oversight and Reform Committee.
Mrs. CAROLYN B. MALONEY of New York. Madam Speaker, I thank the gentleman for yielding and for his extraordinary leadership on this issue and so many other areas.
I thank our Speaker for speaking out so beautifully for the children, for our support for their health, for baby formula, for their support in general, and Rosa DeLauro for her appropriations bill that will supply $28 million for the baby formula crisis. For the author of this very important bill before us, Representative Jahana Hayes, I thank her for her leadership, too.
I rise in support of H.R. 7791, the Access to Baby Formula Act, vital legislation to improve access to infant formula for families with less income who use the WIC family benefit program. That is the Women, Infants, and Children program.
The Abbott recall and formula shortages have devastated families across our country, particularly those who rely on the WIC program.
I have been contacted by constituents who are traveling far and wide to find the formula. They are going on the internet to find it. They are printing their grandmothers' formulas. They are coming up with other ways to try to get formula to infants.
This is absolutely unacceptable. We cannot sit by while families struggle to feed their babies.
That is why I have sent letters to the CEOs of the four largest baby formula manufacturers, pressing them on their plans to boost supply. What happened? Why did this happen in the first place? How soon are they going to get formula back on the shelves of our stores for our families? How will they prevent future shortages?
We must pass this bill to provide the additional WIC program with the flexibility that President Biden called for so that families across the country can access affordable formula.
Under the WIC program now, they are only allowed to contract with Abbott, the company that had the recalls, so this would allow them to contract with other companies to provide this vital service.
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Mr. SCOTT of Virginia. Madam Speaker, I include in the Record a letter from dozens of health, nutrition, education, and child advocacy organizations urging passage of this legislation, and I reserve the balance of my time. May 18, 2022. Hon. Nancy Pelosi, Speaker, House of Representatives, Washington, DC. Hon. Charles Schumer, Majority Leader, U.S. Senate, Washington, DC. Hon. Kevin McCarthy, Minority Leader, House of Representatives, Washington, DC. Hon. Mitch McConnell, Minority Leader, U.S. Senate, Washington, DC.
Dear Speaker Pelosi, Leader McCarthy, Leader Schumer, and Leader McConnell: Parents across the country are increasingly anxious about the diminished availability of infant formula in traditional retail channels after Abbott Nutrition instituted a nationwide recall of its most popular products in February 2022. The undersigned organizations urge swift action in Congress to provide federal agencies with the flexibilities and resources needed to shore up supply, assure the safety of infant formula available on the market, and provide families with options that ensure babies have access to essential nutrition.
Although breastfeeding is the optimal source of infant nutrition, sustained breastfeeding is not an option for many mothers. Infant formula is an essential product constituting the majority--or even exclusive--source of nutrition for many infants and some older children and adults with metabolic disorders. Since Abbott Nutrition announced the infant formula recall in February 2022, the Food and Drug Administration (FDA) has led an interagency effort to address supply challenges and encourage increased production among the limited domestic manufacturers. The infant formula manufacturing sector is highly concentrated, with only four companies--Abbott Nutrition, Reckitt Benckiser (Mead Johnson), Nestle (Gerber), and Perrigo--commanding nearly 90 percent of the domestic infant formula supply. As the nation navigates through the Abbott recall, manufacturer assurances of increased production have not yet translated to increased stock on the shelves, leaving many families with limited options and acutely impacting individuals who need specialty formulas to accommodate for allergies, digestive issues, or metabolic disorders.
More than half of all infant formula purchases in the country go through the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), which typically limits the 1.2 million infants receiving formula benefits to a specific brand. Though WI C's State-based, sole-source contracting process has been a successful cost containment strategy, limited options posed a unique challenge during this unprecedented failure of the manufacturing sector. Starting in February 2022, a patchwork of waivers from the U.S. Department of Agriculture (USDA) and contract flexibilities exercised by State WIC Agencies allowed for WIC families have more options--including additional container sizes and brands--to ensure that low-income families could obtain infant formula amid limited supply on the shelves.
As with the commercial market, WIC's program structure did not anticipate the possibility of the widespread shortages that are felt today by all parents of formula-fed infants. The bipartisan Access to Baby Formula Act advances common- sense, but essential, flexibilities that will provide regulatory relief and maximum flexibility to State and local providers as they support low-income families during product recalls and public health emergencies. This legislation also works to build contingencies into State contracts with infant formula manufacturers and promotes collaboration between USDA and FDA to assure a coordinated, public-private response to infant formula recalls and supply disruptions. These steps empower WIC with the flexibility to ensure that the most vulnerable infants have access to adequate nutrition when supply is strained or limited.
Additionally, the Infant Formula Supplemental Appropriations Act of 2022 would provide $28 million in funding for FDA to address product shortages and strengthens the agency's capacity to assure safety of infant formula, especially as new products enter the domestic market. FDA's limited bandwidth to monitor for safe manufacturing practices at infant formula production sites is concerning, and this additional funding will be essential to building a safe and more resilient supply chain that delivers quality product to support infants' nutrition needs.
Together, these two bills provide a substantial next step in the federal response to the Abbott recall and will better position agencies and low-income families to weather the crisis. But more must be done to identify and remedy the structural factors that allowed for the domestic infant formula supply to be so substantially impacted by the closure of only one manufacturing facility. We look forward to ongoing efforts in Congress and federal agencies to assess the competitiveness of the infant formula manufacturing sector and assure that any given manufacturer's operations are sufficiently diversified to deliver essential product to parents in need.
We thank you for your attention to this issue, which remains top-of-mind for so many parents across the country, and we urge swift action to deliver change and build a better future for the next generation of Americans. Sincerely, National Organizations
National WIC Association, MomsRising, 2020 Mom, 9to5, A Better Balance, Academy of Nutrition and Dietetics, American Federation of State, County, and Municipal Employees (AFSCME), Alliance to End Hunger, American Academy of Family Physicians, American Federation of Teachers, American Public Health Association, American Public Human Services Association, American Society for Nutrition, Association of Maternal & Child Health Programs, Association of State and Territorial Health Officials, Asthma and Allergy Foundation of America.
Autistic People of Color Fund, Autistic Women & Nonbinary Network, BUILD Initiative, Campaign for a Family Friendly Economy, Catholics for Choice, Center for Science in the Public Interest (CSPI), Chamber of Mothers, Child Care Aware of America, Child Welfare League of America, Children's Advocacy lntitute, Children's HealthWatch, Coalition on Human Needs, Community Change Action, Congregation of Our Lady of Charity of the Good Shepherd, U.S. Province; Democratic Mayors Association, Disability Rights Education & Defense Fund, Educare Learning Network, Equal Rights Advocates.
Family Values @ Work, Family Voices, Families USA, FARE (Food Allergy Research and Education), First Five Years Fund, First Focus Campaign for Children, Food Research & Action Center (FRAC), Hispanic Federation, Hunger Free America, League of United Latin American Citizens (LULAC), March of Dimes, MAZON: A Jewish Response to Hunger, Mom Congress, National Advocacy Center of the Sisters of the Good Shepherd, National Association for the Education of Young Children, National Association of Councils on Developmental Disabilities, National Association of Counties (NACo), National Association of Social Workers, National Birth Equity Collaborative.
National Center for Parent Leadership, Advocacy & Community Empowerment (National PLACE), National Community Action Partnership, National Council of Jewish Women, National Diaper Bank Network, National Education Association, National Head Start Association, National Partnership for Women & Families, National Women's Law Center, Nemours Children's Health, Network Lobby for Catholic Social Justice, Nurse- Family Partnership, ParentsTogether Action, Partnership for America's Children, Perigee Fund, PL+US: Paid Leave for the U.S., Population Connection Action Fund, Prevent Child Abuse America, Public Advocacy for Kids (PAK)), Research 2 Impact, RESULTS.
Save the Children, Share Our Strength, Society for Nutrition Education and Behavior, Start Early, Supermajority, The Arc of the United States, The National Consumers League, The United States Conference of Mayors, Ultra Violet, United State of Women, United States Breastfeeding Committee, URGE: Unite for Reproductive & Gender Equity, Women's March, Young Women for US, Youth Villages, YWCA USA, ZERO TO THREE, Zioness Movement. State and Local Organizations
Arizona Head Start Association, AZ; Arizona Local Agency WIC Association, AZ; Arkansas Advocates for Children and Families, AR; BreastfeedLA, CA; California WIC Association, CA; Head Start California, CA; LA Best Babies Network, CA; Parent Voices CA, CA; Region 9 Head Start Association, CA; Clayton Early Learning, CO; Colorado Children's Campaign, CO; Family Voices CO, CO; Raise Colorado Coalition, CO; Connecticut Early Childhood Alliance, CT; Connecticut Women's Education and Legal Fund (CWEALF), CT; Universal Health Care Foundation of Connecticut, CT.
Educare DC, DC; RESULTS DC/MD, DC; Rodel, DE; Florida Policy Institute, FL; GEEARS: Georgia Early Education Alliance for Ready Students, GA; Hawaii Children's Action Network Speaks!, HI; Common Good Iowa, IA; Children's Home & Aid, IL; Erie Family Health, IL; Illinois Action for Children, IL; First Things First, Porter County, IN; New Hope Services, Inc., IN; Kansas Action for Children, KS.
Agenda for Children, LA; The Amandla Group, LLC, LA; CCAL, LA; For Providers By Providers, LA; The Little Schoolhouse, LA; Louisiana Partnership for Children and Families, LA; Louisiana Policy Institute for Children, LA; Toddler's University, LA; YWCA Greater Baton Rouge, LA; Maine Children's Alliance, ME; Maine State Parent Ambassadors, ME; The Opportunity Alliance, ME.
BAMSI-Quincy WIC, MA; Community Action Pioneer Valley, MA; Holyoke/Chicopee WIC, MA; Lawrence WIC, MA; Massachusetts Association of WIC Program Directors, MA; Valley Opportunity Council, Inc., MA; WIC Chelsea/Revere, MA; Maryland WIC Association, MD; Michigan Council for Maternal and Child Health, MI; Michigan League for Public Policy, MI; Michigan's Children, MI; Southeast Michigan Early Childhood Funders Collaborative, MI; Montana Association of WIC Agencies, MT; Zero to Five Montana, MT; Central District Health Department, NE; FHSI WIC, NE.
Children's Advocacy Alliance, NV; Early Learning NH, NH; Granite State Progress, NH; Greater Seacoast Community Health, NH; New Hampshire WIC Directors Association, NH; New Hampshire Women's Foundation, NH; Advocates for Children of New Jersey, NJ; Bernards Township Health Department, NJ; Burlington County Health Department, NJ; Family Voices NJ, NJ; Freehold Area Health Department, NJ; Gloucester County Health Department, NJ; Maplewood Health Department, NJ; Monmouth County Health Department, NJ; National Association of Social Workers--NJ Chapter, NJ.
New Jersey Citizen Action, NJ; New Jersey Time to Care Coalition, NJ; NJPHA, NJ; SPAN Parent Advocacy Network (SPAN), NJ; Township of Bloomfield, NJ; Village of Ridgewood Health Department, NJ; Visiting Nurse Association of Central Jersey, NJ; Visiting Nurse Association Health Group WIC, NJ; Visiting Nurse Association, NJ; New Mexico Voices for Children, NM; Parents Reaching Out To Help, NM; Alliance for Quality Education, NY; Citizens' Committee for Children of New York, NY; Prevent Child Abuse NY, NY; The Children's Agenda, NY; Chinese-American Planning Council, NY; WIC Association of New York State, NY.
Child Care Services Association, NC; NC Child, NC; North Carolina Budget & Tax Center, NC; North Carolina Early Education Coalition, NC; North Carolina Head Start Collaboration Office, NC; North Carolina Infant & Early Childhood Mental Health Association, NC; Partnership for Children of Johnston County, NC; Prevent Child Abuse North Carolina, NC; Ready for School, Ready for Life, NC; Think Babies NC Alliance, NC; Ehrens Consulting, ND; Family Voices of North Dakota, ND; The Center for Community Solutions, OH; Greater Cleveland Food Bank, OH; Ohio Association of Food banks, OH; Oklahoma Partnership for School Readiness, OK; Our Children Oregon, OR.
Abortion Liberation Fund of PA, PA; Community Progress Council WIC, PA; The Foundation for Delaware County, PA; NORTH, Inc., PA; National Council of Jewish Women PA, PA; The Philadelphia Women's Center, PA; Planned Parenthood of Western Pennsylvania, PA; Beautiful Beginnings Child Care Center, RI; Parents Leading for Educational Equity, RI; Rhode Island Association for the Education of Young Children, RI; Rhode Island KIDS COUNT, RI; Women's Fund of Rhode Island, RI; The Womxn Project, RI; South Carolina Program for Infant/ Toddler Care, SC; Early Learner South Dakota, SD.
Black Children's Institute of Tennessee, TN; Tennessee Justice Center, TN; Texans Care for Children, TX; Texas Parent to Parent, TX; Early Childhood Alliance, UT; Birth in Color RVA, VA; Child Health Investment of Partnership of Roanoke Valley, VA; Children's Health Improvement Program of the New River Valley, VA; Children's Health Investment Program, VA; Children's Trust, VA; City of Richmond, VA; Cohen Military Family Center, VA; Family Lifeline, VA; Families Forward Virginia, VA; Greater Richmond SCAN, VA; Healthy Families, VA.
Healthy Families Central Virginia, VA; Healthy Families Danville Pitts County, VA; Healthy Families Fairfax, VA; Newport News Department of Health, VA; Office of Children and Families, City of Richmond, VA; People Incorporated CHIP of Southwestern Virginia, VA; Sacred Village Doula Services, VA; Tri-County Community Action Agency, Inc.; Voices for Virginia's Children, VA; The Up Center, VA; Urban Baby Beginnings, VA.
Voices for Vermont's Children, VT; Child Care Resources, WA; Children's Alliance, WA; Children's Campaign Fund, WA; Northwest Harvest, WA; Partners for Our Children, WA; Start Early Washington, WA; Statewide Poverty Action Network, WA; Washington Chapter of the AAP, WA; Washington Physicians for Social Responsibility, WA; We Are One America, WA; LaCrosse County WIC, WI; Wisconsin Early Childhood Association, WI; Wisconsin WIC Association, WI.
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Mr. SCOTT of Virginia. Madam Speaker, I had another speaker on the way, but he is not here yet, so I am prepared to close. I reserve the balance of my time.
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Mr. SCOTT of Virginia. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, as I said at the beginning of debate, one of our core responsibilities as lawmakers during times of crisis is to ensure that families, particularly those most in need, can continue to feed their children. This is precisely the goal that the Access to Baby Formula Act seeks to achieve.
By providing additional flexibilities in the WIC program, we have a critical opportunity to assure that families can continue using their WIC benefits to get safe and available formula products that their children need.
Simply put, the Access to Baby Formula Act is legislation we need to ensure access to formula for children and families who need it most, both during this current shortage and into the future.
I thank the gentlewoman from Connecticut (Mrs. Hayes) and the gentlewoman from California, (Mrs. Steel) for their urgent leadership on behalf of our Nation's children and families.
I urge my colleagues to support H.R. 7791, the Access to Baby Formula Act, and I yield back the balance of my time.
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