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.
Bill: S.3440 | Sponsor: Sen. Cruz, Ted (R-TX)
Policy area: Health

Summary:
This bill restricts various presidential and federal authorities related to the acquisition of supplies to combat COVID-19.
Specifically, the bill prohibits the President from exercising certain authorities under the Defense Production Act of 1950 to prioritize the performance of federal contracts or orders for COVID-19 supplies over the performance of state or territorial contracts or orders. In addition, states or territories may use federal COVID-19 relief funds for COVID-19 supplies that they had been unable to purchase because of prioritized performance of federal contracts or orders. (The Defense Production Act of 1950 confers upon the President a broad set of authorities to influence domestic industry in order to provide essential materials and goods needed for the national defense.)
Additionally, the Food and Drug Administration may not ration, limit, restrict access to, or otherwise control the quantity of a medical product authorized for use during an emergency, including by requiring products to be distributed through a state- or territorial-based system.

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.

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

SECTION 1. ENSURING FAIRNESS FOR STATE CONTRACTS RELATING TO SUPPLIES 
              TO COMBAT COVID-19 PANDEMIC.

    (a) Treatment Under Defense Production Act of 1950.--Section 101 of 
the Defense Production Act of 1950 (50 U.S.C. 4511) is amended--
            (1) in subsection (a), by striking ``The President'' and 
        inserting ``Except as provided by subsection (e), the 
        President''; and
            (2) by adding at the end the following:
    ``(e) Exception for State Contracts Relating to COVID-19 
Pandemic.--The President may not exercise the authority provided by 
subsection (a) on or after the date of the enactment of this subsection 
to prioritize the performance of contracts or orders of the Federal 
Government relating to the purchase of supplies to combat the COVID-19 
pandemic over the performance of contracts or orders of the government 
of a State or territory or possession of the United States relating to 
the purchase of such supplies.''.
    (b) Treatment Under Federal Food, Drug, and Cosmetic Act.--Section 
564(j) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb-
3(j)) is amended by adding at the end the following:
            ``(5) Nothing in this section or any other provision of law 
        shall be construed to authorize the Secretary to ration a drug 
        authorized for use under this section, limit or restrict access 
        to such a drug, or otherwise control the quantity of such a 
        drug made available for or distributed to any State or 
        territory, including by imposing any limitation on distribution 
        of such a drug to governmental entities, such as requiring a 
        State- and territorial-coordinated distribution system or 
        similar distribution system.''.
    (c) Use of COVID-19 Relief Funds To Purchase Supplies for States.--
            (1) In general.--Notwithstanding any other provision of 
        law, a State or territory or possession of the United States 
        may use funds described in paragraph (2) to purchase supplies 
        to combat the COVID-19 pandemic that the State, territory, or 
        possession was unable to purchase before the date of the 
        enactment of this Act because of the invocation by the 
        President of the authority to prioritize contracts and orders 
        under section 101 of the Defense Production Act of 1950 (50 
        U.S.C. 4511).
            (2) Funds described.--Funds described in this paragraph are 
        funds made available to a State or territory or possession of 
        the United States pursuant to any of the following Acts and 
        available for obligation as of the date of the enactment of 
        this Act:
                    (A) The Coronavirus Preparedness and Response 
                Supplemental Appropriations Act, 2020 (Public Law 116-
                123; 134 Stat. 146).
                    (B) The Families First Coronavirus Response Act 
                (Public Law 116-127; 134 Stat. 178).
                    (C) The Coronavirus Aid, Relief, and Economic 
                Security Act (Public Law 116-136; 134 Stat. 281).
                    (D) The Paycheck Protection Program and Health Care 
                Enhancement Act (Public Law 116-139; 134 Stat. 620).
                    (E) The Consolidated Appropriations Act, 2021 
                (Public Law 116-260).
                    (F) The American Rescue Plan Act of 2021 (Public 
                Law 117-2).
                    (G) Any other Act providing funding relating to the 
                COVID-19 pandemic.
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