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President Biden invoked the Defense Production Act on Wednesday evening to boost baby formula production and issued a directive authorizing planes to bring in supplies from overseas, after growing pressure from Congress.
In addition to invoking the Cold War-era law to compel suppliers to direct resources to infant formula manufacturers before any other customer, Biden announced ‘Operation Fly Formula,’ which will direct Defense Department and U.S. Department of Agriculture (USDA) resources to getting planes loaded with the FDA-approved versions of the product from other countries to bring it to American parents. The Defense Department will use its contracts with commercial airlines to transport the formula back to the U.S.
Earlier Wednesday a bipartisan group in the House is brought forth a resolution imploring Biden to invoke the Defense Production Act.
Twenty members of the House, eighteen Democrats, two Republicans, and many who face competitive re-election races, co-sponsored the resolution, led by Rep. Josh Gottheimer, D-N.J.
Co-sponsors include Reps. Elissa Slotkin (D-Mich.), Mikie Sherrill (D-N.J.), Elaine Luria (D-Va.) and Chris Pappas (D-N.H.), and others. It has two Republican backers as well: Reps. Don Bacon (R-Neb.) and Maria Salazar (R-Fla.)
The resolution joins several other pieces of legislation, including one bill from a bipartisan group of senators led by Marco Rubio that would order Biden to invoke the DPA and approve the sale of European-produced baby formulas in the U.S.
Critics have noted that the FDA has rigid labeling standards for containers that prohibit the sale of many European-made products, even if the content itself is deemed safe to consume. The agency also strictly enforces a 90-day waiting period before any new infant formula is allowed into interstate commerce.
On Monday, Sen. Kirsten Gillibrand sent a letter to President Biden urging him to invoke the DPA.
House Speaker Nancy Pelosi brushed past the idea on Sunday, claiming that it is not legally possible to invoke the DPA for baby formula. While she said Congress should change the law, she focused on two other pieces of legislation– one the House plans to vote on Wednesday that would allow the Supplemental Nutrition Assistance Program for Women, Infants, and Children (WIC) to cover more brands of formula and another that would provide $28 million in emergency aid.
Asked if Biden should invoke the DPA on Sunday, the speaker said: ‘I think so but as the law is now it is not possible to do that.’
‘[Appropriations chair Rosa DeLauro] feels quite certain that we have to change the law in order for the Defense Production Act to be called into play,’ she added.
Twenty members of the House, eighteen Democrats, two Republicans, and many who face competitive re-election races, co-sponsored the resolution, led by Rep. Josh Gottheimer, D-N.J.
Outgoing White House press secretary Jen Psaki said the DPA was an option, but the White House was not yet sure it would be helpful. ‘You have to ensure that it would actually achieve what you’re trying to achieve,’ she said of using the act.
When asked about invoking the DPA on Monday, the White House’s new press secretary Karine Jean-Pierre said: ‘We’re leaving no stone unturned and every option is on the table, as we have been saying for the past several days.’
Biden most recently used the 1950 Defense Production Act to ramp up production of critical minerals. The act allows the federal government to compel certain industries to ramp up production in times of national emergency.
The act was used to ramp up production of large capacity batteries, electric vehicles and the energy sector, both to reduce reliance on China amid increasing tensions and to address rising oil prices amid the Russian invasion of Ukraine. Russia is a major supplier of such minerals.
Trump used the DPA at the height of the pandemic to crack down on hoarding of PPE, limit exports of medical goods and to increase production of tools to fight Covid-19 like ventilators. Biden has also used it to speed up vaccinations and testing.
An Abbott Nutrition manufacturing plan in Sturgis, Michigan shuttered in February after four infants who drank its formula were hospitalized with a rare bacteria infection. Two babies died after consuming the product, and the Food and Drug Administration (FDA) announced an investigation into potential contamination.
A view of empty shelf at a giant grocery store due to shortage in the availability of baby food Monday, May 16
A nearly empty baby formula display shelf is seen at CVS pharmacy on May 17, 2022 in Falls Church, Virginia
Parents have been scrambling to find formula for their children, with some refreshing web pages endlessly for restocks and others waiting on hold for hours on end to seek help from the government
Abbott has acknowledged that is recall has worsened the formula shortage, but insisted that ‘after a thorough review of all available data, there is no evidence to link our formulas to these infant illnesses.’
The shortage began in November, when the out-of-stock rate for formula was about 11 percent for the country.
On average 40 percent of the nation’s baby formula is currently out of stock. Shortages are above 50 percent in some areas and the issue is hitting children with allergies and health conditions more severely.
President Biden’s home state of Delaware is second hardest-hit by the shortage– formula was 54.4 percent out of stock there, according to Datasembly, a grocery and retail pricing data firm.
Biden on Friday suggested it would have taken a ‘mind reader’ to predict the baby formula shortage.
‘If we’d been better mind readers, I guess we could have,’ Biden said when asked if his administration should have acted sooner.
‘We’re going to be in a matter of weeks – or less – getting significantly where more formula is on shelves,’ he said.
Abbott reached an agreement with the FDA this week that could see its products restocked in about two months, after it reopens its Sturgis plant.
Abbott said its tentative timeline to reopen the plant was in about two weeks, and products to be restocked in about six to eight weeks.
FDA commissioner Dr. Robert Califf said he thought the timeline was doable, but refused to commit to when parents could see relief.
‘We believe those timeframes are reasonable,’ adding that the FDA expected supply to normalize ‘in the next couple of months.’
