II 

117TH CONGRESS 

2D SESSION S. 3440 

To amend the Federal Food, Drug, and Cosmetic Act and the Defense 

Production Act of 1950 to prohibit the Federal Government from limiting 

State access to key therapies, such as monoclonal antibodies, and from 

prioritizing Federal contracts over State contracts relating to purchasing 

supplies to combat the COVID–19 pandemic. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 4, 2022 

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

the Committee on Banking, Housing, and Urban Affairs 

A BILL 

To amend the Federal Food, Drug, and Cosmetic Act and 

the Defense Production Act of 1950 to prohibit the Federal Government from limiting State access to key therapies, such as monoclonal antibodies, and from prioritizing 

Federal contracts over State contracts relating to purchasing supplies to combat the COVID–19 pandemic. 

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


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1 SECTION 1. ENSURING FAIRNESS FOR STATE CONTRACTS 

2 RELATING TO SUPPLIES TO COMBAT COVID– 

3 19 PANDEMIC. 

4 (a) TREATMENT UNDER DEFENSE PRODUCTION ACT

5 OF 1950.—Section 101 of the Defense Production Act of 

6 1950 (50 U.S.C. 4511) is amended— 

7 (1) in subsection (a), by striking ‘‘The Presi8 dent’’ and inserting ‘‘Except as provided by sub9 section (e), the President’’; and 

10 (2) by adding at the end the following: 

11 ‘‘(e) EXCEPTION FOR STATE CONTRACTS RELATING

12 TO COVID–19 PANDEMIC.—The President may not exer13 cise the authority provided by subsection (a) on or after 

14 the date of the enactment of this subsection to prioritize 

15 the performance of contracts or orders of the Federal Gov16 ernment relating to the purchase of supplies to combat 

17 the COVID–19 pandemic over the performance of con18 tracts or orders of the government of a State or territory 

19 or possession of the United States relating to the purchase 

20 of such supplies.’’. 

21 (b) TREATMENT UNDER FEDERAL FOOD, DRUG, 

22 AND COSMETIC ACT.—Section 564(j) of the Federal Food, 

23 Drug, and Cosmetic Act (21 U.S.C. 360bbb–3(j)) is 

24 amended by adding at the end the following: 

25 ‘‘(5) Nothing in this section or any other provi26 sion of law shall be construed to authorize the SecVerDate Sep 11 2014 22:28 Jan 04, 2022 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3440.IS S3440

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1 retary to ration a drug authorized for use under this 

2 section, limit or restrict access to such a drug, or 

3 otherwise control the quantity of such a drug made 

4 available for or distributed to any State or territory, 

5 including by imposing any limitation on distribution 

6 of such a drug to governmental entities, such as re7 quiring a State- and territorial-coordinated distribu8 tion system or similar distribution system.’’. 

9 (c) USE OF COVID–19 RELIEF FUNDS TO PUR10 CHASE SUPPLIES FOR STATES.— 

11 (1) IN GENERAL.—Notwithstanding any other 

12 provision of law, a State or territory or possession 

13 of the United States may use funds described in 

14 paragraph (2) to purchase supplies to combat the 

15 COVID–19 pandemic that the State, territory, or 

16 possession was unable to purchase before the date of 

17 the enactment of this Act because of the invocation 

18 by the President of the authority to prioritize con19 tracts and orders under section 101 of the Defense 

20 Production Act of 1950 (50 U.S.C. 4511). 

21 (2) FUNDS DESCRIBED.—Funds described in 

22 this paragraph are funds made available to a State 

23 or territory or possession of the United States pur24 suant to any of the following Acts and available for 


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1 obligation as of the date of the enactment of this 

2 Act: 

3 (A) The Coronavirus Preparedness and 

4 Response Supplemental Appropriations Act, 

5 2020 (Public Law 116–123; 134 Stat. 146). 

6 (B) The Families First Coronavirus Re7 sponse Act (Public Law 116–127; 134 Stat. 

8 178). 

9 (C) The Coronavirus Aid, Relief, and Eco10 nomic Security Act (Public Law 116–136; 134 

11 Stat. 281). 

12 (D) The Paycheck Protection Program and 

13 Health Care Enhancement Act (Public Law 

14 116–139; 134 Stat. 620). 

15 (E) The Consolidated Appropriations Act, 

16 2021 (Public Law 116–260). 

17 (F) The American Rescue Plan Act of 

18 2021 (Public Law 117–2). 

19 (G) Any other Act providing funding relat20 ing to the COVID–19 pandemic. 

Æ 


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