II 

111TH CONGRESS 

1ST SESSION S. 1244 

To amend the Civil Rights Act of 1964 to protect breastfeeding by new 

mothers, to provide for a performance standard for breast pumps, and 

to provide tax incentives to encourage breastfeeding. 

IN THE SENATE OF THE UNITED STATES 

JUNE 11, 2009 

Mr. MERKLEY introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL 

To amend the Civil Rights Act of 1964 to protect 

breastfeeding by new mothers, to provide for a performance standard for breast pumps, and to provide tax 

incentives to encourage breastfeeding. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Breastfeeding Promotion Act of 2009’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—AMENDMENTS TO THE CIVIL RIGHTS ACT OF 1964 


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Sec. 101. Findings; purposes. 

Sec. 102. Amendments to title VII of the Civil Rights Act of 1964. 

TITLE II—CREDIT FOR EMPLOYER EXPENSES FOR PROVIDING 

APPROPRIATE ENVIRONMENT ON BUSINESS PREMISES FOR 

EMPLOYED MOTHERS TO BREASTFEED OR EXPRESS MILK FOR 

THEIR CHILDREN 

Sec. 201. Allowance of credit for employer expenses for providing appropriate 

environment on business premises for employed mothers to 

breastfeed or express milk for their children. 

TITLE III—SAFE AND EFFECTIVE BREAST PUMPS 

Sec. 301. Short title. 

Sec. 302. Breast pumps. 

TITLE IV—DEFINITION OF MEDICAL CARE IN INTERNAL REVENUE CODE EXPANDED TO INCLUDE BREASTFEEDING EQUIPMENT AND SERVICES 

Sec. 401. Definition of medical care expanded to include breastfeeding equipment and services. 

TITLE V—PRIVACY FOR BREASTFEEDING MOTHERS 

Sec. 501. Privacy for breastfeeding mothers. 

1 TITLE I—AMENDMENTS TO THE 

2 CIVIL RIGHTS ACT OF 1964 

3 SEC. 101. FINDINGS; PURPOSES. 

4 (a) FINDINGS.—Congress finds the following: 

5 (1) Women with infants and toddlers are a rap6 idly growing segment of the labor force today. 

7 (2) Statistical surveys of families show that 

8 over 50 percent of mothers with children less than 

9 1 year of age are in the labor force. 

10 (3) The American Academy of Pediatrics rec11 ommends that mothers breastfeed exclusively for 6 

12 months and continue breastfeeding for at least the 

13 first year of a child’s life, and that arrangements be 


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1 made to allow a mother’s expressing of milk if moth2 er and child must separate. 

3 (4) Research studies show that children who are 

4 not breastfeed have higher rates of mortality, menin5 gitis, some types of cancers, asthma and other res6 piratory illnesses, bacterial and viral infections, 

7 diarrhoeal diseases, ear infections, allergies, and obe8 sity. 

9 (5) Research studies have also shown that 

10 breastmilk and breastfeeding have protective effects 

11 against the development of a number of chronic dis12 eases, including juvenile diabetes, lymphomas, 

13 Crohn’s disease, celiac disease, some chronic liver 

14 diseases, and ulcerative colitis. 

15 (6) Maternal benefits of breastfeeding include a 

16 reduced risk for postpartum hemorrhage and de17 creased risk for developing osteoporosis, ovarian can18 cer, and premenopausal breast cancer. 

19 (7) The health benefits to children from 

20 breastfeeding translate into a threefold decrease in 

21 parental absenteeism due to infant illness. 

22 (8) Congress intended to include breastfeeding 

23 and expressing breast milk as protected conduct 

24 under the amendment made to title VII of the Civil 

25 Rights Act of 1964 by the Act entitled ‘‘An Act to 


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1 amend title VII of the Civil Rights Act of 1964 to 

2 prohibit sex discrimination on the basis of preg3 nancy’’, approved October 31, 1978 (commonly 

4 known as the ‘‘Pregnancy Discrimination Act’’). 

5 (9) Although title VII of the Civil Rights Act of 

6 1964, as so amended, applies with respect to ‘‘preg7 nancy, childbirth, or related medical conditions’’, a 

8 few courts have failed to reach the conclusion that 

9 breastfeeding and expressing breast milk in the 

10 workplace are covered by such title. 

11 (b) PURPOSES.—The purposes of this title are— 

12 (1) to promote the health and well-being of in13 fants whose mothers return to the workplace after 

14 childbirth; and 

15 (2) to clarify that breastfeeding and expressing 

16 breast milk in the workplace are protected conduct 

17 under the amendment made by the Act commonly 

18 known as the ‘‘Pregnancy Discrimination Act’’ to 

19 title VII of the Civil Rights Act of 1964. 

20 SEC. 102. AMENDMENTS TO TITLE VII OF THE CIVIL RIGHTS 

21 ACT OF 1964. 

22 Section 701(k) of the Civil Rights Act of 1964 (42 

23 U.S.C. 2000e(k)) is amended— 

24 (1) by inserting ‘‘(including lactation)’’ after 

25 ‘‘childbirth’’; and 


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1 (2) by adding at the end the following: ‘‘For 

2 purposes of this subsection, the term ‘lactation’ 

3 means a condition that may result in the feeding of 

4 a child directly from the breast or the expressing of 

5 milk from the breast.’’. 

6 TITLE II—CREDIT FOR EM7 PLOYER EXPENSES FOR PRO8 VIDING APPROPRIATE ENVI9 RONMENT ON BUSINESS 

10 PREMISES FOR EMPLOYED 

11 MOTHERS TO BREASTFEED 

12 OR EXPRESS MILK FOR THEIR 

13 CHILDREN 

14 SEC. 201. ALLOWANCE OF CREDIT FOR EMPLOYER EX15 PENSES FOR PROVIDING APPROPRIATE ENVI16 RONMENT ON BUSINESS PREMISES FOR EM17 PLOYED MOTHERS TO BREASTFEED OR EX18 PRESS MILK FOR THEIR CHILDREN. 

19 (a) IN GENERAL.—Subpart D of part IV of sub20 chapter A of chapter 1 of the Internal Revenue Code of 

21 1986 (relating to business related credits) is amended by 

22 adding at the end the following new section: 


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1 ‘‘SEC. 45R. CREDIT FOR EMPLOYER EXPENSES INCURRED 

2 TO FACILITATE EMPLOYED MOTHERS WHO 

3 BREASTFEED OR EXPRESS MILK FOR THEIR 

4 CHILDREN. 

5 ‘‘(a) IN GENERAL.—For purposes of section 38, the 

6 breastfeeding promotion and support credit determined 

7 under this section for the taxable year is an amount equal 

8 to 50 percent of the qualified breastfeeding promotion and 

9 support expenditures of the taxpayer for such taxable 

10 year. 

11 ‘‘(b) DOLLAR LIMITATION.—The credit allowable 

12 under subsection (a) for any taxable year shall not exceed 

13 $10,000. 

14 ‘‘(c) QUALIFIED BREASTFEEDING PROMOTION AND

15 SUPPORT EXPENDITURE.—For purposes of this section— 

16 ‘‘(1) IN GENERAL.—The term ‘qualified 

17 breastfeeding promotion and support expenditure’ 

18 means any amount paid or incurred in connection 

19 with a trade or business of the taxpayer— 

20 ‘‘(A) for breast pumps and other equip21 ment specially designed to assist mothers who 

22 are employees of the taxpayer to breastfeed or 

23 express milk for their children but only if such 

24 pumps and equipment meet such standards (if 

25 any) prescribed by the Secretary of Health and 

26 Human Services, and 


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1 ‘‘(B) for consultation services to the tax2 payer or employees of the taxpayer relating to 

3 breastfeeding. 

4 ‘‘(2) COSTS OF OTHER EXCLUSIVE USE PROP5 ERTY INCLUDED.—Such term includes any amount 

6 paid or incurred for the acquisition or lease of tan7 gible personal property (not described in paragraph 

8 (1)(A)) which is exclusively used by mothers who are 

9 employees of the taxpayer to breastfeed or express 

10 milk for their children unless such property is lo11 cated in any residence of the taxpayer or any em12 ployee of the taxpayer. 

13 ‘‘(d) RECAPTURE OF CREDIT.— 

14 ‘‘(1) IN GENERAL.—If, during any taxable year, 

15 any property for which a credit was allowed under 

16 this section is disposed of or otherwise ceases to be 

17 used by the taxpayer as required by this section, 

18 then the tax of the taxpayer under this chapter for 

19 such taxable year shall be increased by an amount 

20 equal to the recapture percentage of the aggregate 

21 decrease in the credits allowed under section 38 for 

22 all prior taxable years which would have resulted 

23 solely from reducing to zero any credit determined 

24 under this section with respect to such property. The 


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1 preceding sentence shall not apply to property leased 

2 to the taxpayer. 

3 ‘‘(2) RECAPTURE PERCENTAGE.—For purposes 

4 of this subsection, the recapture percentage shall be 

5 determined in accordance with the following table: 

‘‘If the recapture event occurs in: The recapture 

percentage is: 

Year 1 ....................................................................................... 100

Year 2 ....................................................................................... 60

Year 3 ....................................................................................... 30

Year 4 or thereafter ................................................................. 0. 

6 The references to years in the preceding table are 

7 references to the consecutive taxable years beginning 

8 with the taxable year in which the property is placed 

9 in service by the taxpayer as year 1. 

10 ‘‘(3) CERTAIN RULES TO APPLY.—Rules similar 

11 to the rules of paragraphs (3) and (4), and subpara12 graphs (B) and (C) of paragraph (5), of section 

13 50(a) shall apply for purposes of this subsection. 

14 ‘‘(e) SPECIAL RULES.—For purposes of this sec15 tion— 

16 ‘‘(1) AGGREGATION RULES.—For purposes of 

17 subsection (b), all persons which are treated as a 

18 single employer under subsection (a) or (b) of sec19 tion 52 shall be treated as a single taxpayer, and the 

20 dollar amount contained in such subsection shall be 

21 allocated among such persons under regulations pre22 scribed by the Secretary. 


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1 ‘‘(2) REDUCTION IN BASIS.—Rules similar to 

2 the rules of paragraphs (1) and (2) of section 50(c), 

3 and section 1016(a)(19), shall apply with respect to 

4 property for which a credit is determined under this 

5 section. 

6 ‘‘(3) OTHER DEDUCTIONS AND CREDITS.—No 

7 deduction or credit shall be allowed under any other 

8 provision of this chapter with respect to any expend9 iture for which a credit is determined under this sec10 tion.’’. 

11 (b) CONFORMING AMENDMENTS.— 

12 (1) Section 38(b) of such Code is amended by 

13 striking ‘‘plus’’ at the end of paragraph (34), by 

14 striking the period at the end of paragraph (35) and 

15 inserting ‘‘, plus’’, and by adding at the end the fol16 lowing new paragraph: 

17 ‘‘(36) the breastfeeding promotion and support 

18 credit determined under section 45R(a).’’. 

19 (2) The table of sections for subpart D of part 

20 IV of subchapter A of chapter 1 of such Code is 

21 amended by adding at the end the following new 

22 item: 

‘‘Sec. 45R. Credit for employer expenses incurred to facilitate employed mothers who breastfeed or express milk for their children’’. 


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1 (c) EFFECTIVE DATE.—The amendments made by 

2 this section shall apply to taxable years beginning after 

3 December 31, 2009. 

4 TITLE III—SAFE AND EFFECTIVE 

5 BREAST PUMPS 

6 SEC. 301. SHORT TITLE. 

7 This title may be cited as the ‘‘Safe and Effective 

8 Breast Pumps Act’’. 

9 SEC. 302. BREAST PUMPS. 

10 (a) PERFORMANCE STANDARDS.— 

11 (1) IN GENERAL.—The Secretary of Health and 

12 Human Services shall take such action as may be 

13 appropriate to put into effect a performance stand14 ard for breast pumps irrespective of the class to 

15 which the breast pumps have been classified under 

16 section 513 of the Federal Food, Drug, and Cos17 metic Act (21 U.S.C. 360c). 

18 (2) IDENTIFICATION OF PUMPS.—In estab19 lishing the performance standard under paragraph 

20 (1), the Secretary shall identify those pumps appro21 priate for use on a regular basis in a place of em22 ployment based on the efficiency and effectiveness of 

23 the pump and on sanitation factors related to com24 munal use. 


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1 (3) TIMELINE.—Action to put into effect the 

2 performance standard under paragraph (1) shall be 

3 taken not later than 1 year after the date of enact4 ment of this Act. 

5 (b) COMPLIANCE POLICY GUIDE.—The Secretary of 

6 Health and Human Services, acting through the Commis7 sioner of Food and Drugs, shall issue a compliance policy 

8 guide that will ensure that women who want to breastfeed 

9 a child are given full and complete information respecting 

10 breast pumps. 

11 TITLE IV—DEFINITION OF MED12 ICAL CARE IN INTERNAL REV13 ENUE CODE EXPANDED TO 

14 INCLUDE BREASTFEEDING 

15 EQUIPMENT AND SERVICES 

16 SEC. 401. DEFINITION OF MEDICAL CARE EXPANDED TO IN17 CLUDE BREASTFEEDING EQUIPMENT AND 

18 SERVICES. 

19 (a) IN GENERAL.—Paragraph (1) of section 213(d) 

20 of the Internal Revenue Code of 1986 (defining medical 

21 care) is amended by striking ‘‘or’’ at the end of subpara22 graph (C), by striking the period at the end of subpara23 graph (D) and inserting ‘‘, or’’, and by inserting after sub24 paragraph (D) the following: 


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1 ‘‘(E) qualified breastfeeding equipment 

2 and services.’’. 

3 (b) QUALIFIED BREASTFEEDING EQUIPMENT AND

4 SERVICES.—Subsection (d) of section 213 of such Code 

5 (relating to definitions) is amended by adding at the end 

6 the following new paragraph: 

7 ‘‘(12) QUALIFIED BREASTFEEDING EQUIPMENT

8 AND SERVICES.—For purposes of paragraph (1)(E), 

9 the term ‘qualified breastfeeding equipment and 

10 services’ means— 

11 ‘‘(A) breast pumps and other equipment 

12 specially designed to assist a mother to 

13 breastfeed or express milk for her child but only 

14 if such pumps and equipment meet the stand15 ards (if any) prescribed by the Secretary of 

16 Health and Human Services, and 

17 ‘‘(B) consultation services relating to 

18 breastfeeding.’’. 

19 (c) EFFECTIVE DATE.—The amendments made by 

20 this section shall apply to taxable years beginning after 

21 December 31, 2009. 


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1 TITLE V—PRIVACY FOR 

2 BREASTFEEDING MOTHERS 

3 SEC. 501. PRIVACY FOR BREASTFEEDING MOTHERS. 

4 (a) IN GENERAL.—Section 7 of the Fair Labor 

5 Standards Act (29 U.S.C. 207) is amended by adding at 

6 the end the following: 

7 ‘‘(r)(1) An employer shall provide reasonable break 

8 time for an employee to express breast milk for her nurs9 ing child for 1 year after the child’s birth each time such 

10 employee has need to express the milk. The employer shall 

11 make reasonable efforts to provide a place, other than a 

12 bathroom, that is shielded from view and free from intru13 sion from coworkers and the public, which may be used 

14 by an employee to express breast milk. An employer shall 

15 not be required to compensate an employee for any work 

16 time spent for such purpose. 

17 ‘‘(2) For purposes of this subsection, the term ‘em18 ployer’ means an employer as defined in section 3(d) who 

19 employs 50 or more employees for each working day dur20 ing each of 20 or more calendar workweeks in the current 

21 or preceding calendar year.’’. 

22 (b) PENALTY.—Section 16(b) of such Act (29 U.S.C. 

23 216(b)) is amended by inserting after the first sentence 

24 the following: ‘‘In lieu of any other remedy under this sec25 tion or section 17, any employee who is harmed by a violaVerDate Nov 24 2008 03:59 Jun 12, 2009 Jkt 079200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1244.IS S1244

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1 tion of section 7(r) may bring an action to enjoin such 

2 violation and to recover such equitable relief as may be 

3 appropriate to effectuate the purposes of such section.’’. 

Æ 


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