Public Law 117-129 passed May 21, 2022

Access to Baby Formula Act of 2022

Authority to Address Certain Emergencies, Disasters, and Supply Chain Disruptions

Section 17 of the Child Nutrition Act of 1966 (42 USC 1786) amended-

subsection(b) add at the end of the following:

“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”.

subsection (h)(8) add at the end of the following:

“INFANT FORMULA COST CONTAINMENT CONTRACT REQUIREMENT-

In General- The Secretary requires each infant formula cost containment contract renewed or entered on or after the date of this Act, this includes remedies in the event of a recall, including how a manufacture would protect against disruption in the State.

Rebates- In case of a recall, formula manufacturer shall comply with the contract requirements.

MEMORANDUM OF UNDERSTANDING- 30 days after the enactment of this Act, the Secretary will ensure a memorandum of understanding between the Secretary and the Secretary of Health and Human Services includes procedures to promote coordination and information sharing between the Department of Agriculture and the Department of Health and Human Services regarding supply chain disruption, including recalls.

EMERGENCIES AND DISASTERS-

In General- During an emergency, the Secretary may modify or waive any qualified administrative requirement for one or more State agencies if-

the qualified administrative requirement CANNOT be met by State agencies during any point of the emergency period; and

the modification or waiver is necessary to provide assistance and DOES NOT substantially weaken the nutritional quality of supplemental foods provided.

Duration- Waiver available NOT greater than the emergency period and 60 days after the end of the emergency period.

Definitions-

Emergency Period- a public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 USC 247d);

renewal on a public health emergency referenced to section 319.

Presidentially declared major disaster or declared emergency defined under section 102 of Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC 5121).

Qualified Administrative Requirements- requirement under this section or a regulatory requirement issued pursuant to this section.

SUPPLY CHAIN DISRUPTIONS-

In General- During a supply chain disruption, including a recall, the Secretary may modify or waive any administrative requirement for one more more State agencies if-

the qualified administrative requirement cannot be met by State agencies during any point of the emergency period; and

the modification or waiver is necessary to provide assistance and DOES NOT substantially weaken the nutritional quality of supplemental foods provided.

Waiver Authority- The Secretary may waive or modify permit authorized vendors to exchange or substitute supplemental foods obtained with food instruments beyond exchanges for an identical (exact brand and size) food item. Waive any requirement with medical documentation for the issuance of non-contract brand infant formula, EXCEPT for the participants receiving Food Package III (defined in 246.10(e)(3) title 7, Code of Federal Regulations. Waive maximum monthly allowance for infant formula. Waive additional qualified administrative requirements to address a supply chain disruption, including a recall.

Duration- Waive or modification no more than 45 days to the date determined by the Secretary and renewed as long as the Secretary provided a 15 day notice before the renewal. NOT available after that date that is 60 days after the supply chain disruption which the waiver is established ceases to exist.

TRANSPARENCY-

In General-If the Secretary determines a supply chain disruption exists and issues a waiver or modification then each State agency will be notified with an explanation of such determination.

PUBLICATION-

The Secretary will make each determination publicly available on the website of the Department.

STATE AGENCY REQUIREMENTS-

A state agency notified shall notify each infant formula manufacturer that has a contract with such State agency with respect to such notification.