Access to Baby Formula Act of 2022
Bill: H.R.7791 | Sponsor: Rep. Hayes, Jahana (D-CT)
Policy area: Agriculture and Food

Summary:
Access to Baby Formula Act of 2022
This bill authorizes the Department of Agriculture (USDA) to take certain actions to address emergencies, disasters, and supply chain disruptions (particularly the shortage of infant formula in the United States) affecting participants of the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).
The bill directs USDA to require each infant formula cost containment contract to include remedies in the event of an infant formula recall, including how an infant formula manufacturer would protect against disruption to WIC participants in the state.
USDA must, within 30 days, ensure there is a memorandum of understanding with the Department of Health and Human Services that includes procedures for coordination and information sharing regarding any supply chain disruption, including a supplemental food recall.
The bill also authorizes USDA to waive or modify any WIC qualified administrative requirement during emergencies, disasters, and supply chain disruptions. Specifically, USDA may waive or modify such a requirement for one or more state agencies if (1) the requirement cannot be met by state agencies during the emergency, disaster, or disruption; and (2) the modification or waiver is necessary to provide assistance to WIC participants and does not substantially weaken the nutritional quality of supplemental foods. For example, USDA may waive the maximum monthly allowance for infant formula.
The bill establishes notification requirements for USDA and state agencies related to supply chain disruptions.

[117th Congress Public Law 129]
[From the U.S. Government Publishing Office]



[[Page 136 STAT. 1225]]

Public Law 117-129
117th Congress

                                 An Act


 
 To amend the Child Nutrition Act of 1966 to establish waiver authority 
to address certain emergencies, disasters, and supply chain disruptions, 
     and for other purposes. <<NOTE: May 21, 2022 -  [H.R. 7791]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Access to Baby 
Formula Act of 2022. 42 USC 1771 note.>> 
SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Access to Baby Formula Act of 2022''.
SEC. 2. AUTHORITY TO ADDRESS CERTAIN EMERGENCIES, DISASTERS, AND 
                    SUPPLY CHAIN DISRUPTIONS.

    Section 17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786) is 
amended--
            (1) in subsection (b), by adding at the end the following:
            ``(24) <<NOTE: Definition.>>  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.'';
            (2) in subsection (h)(8), by adding at the end the 
        following:
                    ``(L) Infant formula cost containment contract 
                requirement.--
                          ``(i) In general.--The Secretary shall require 
                      that each infant formula cost containment contract 
                      renewed or entered into on or after the date of 
                      the enactment of the Access to Baby Formula Act of 
                      2022 includes remedies in the event of an infant 
                      formula recall, including how an infant formula 
                      manufacturer would protect against disruption to 
                      program participants in the State.
                          ``(ii) <<NOTE: Compliance.>>  Rebates.--In the 
                      case of an infant formula recall, an infant 
                      formula manufacturer contracted to provide infant 
                      formula under this section shall comply with the 
                      contract requirements under clause (i).
                    ``(M) <<NOTE: Deadline. Procedures.>>  Memorandum of 
                understanding.--Not later than 30 days after the date of 
                the enactment of the Access to Baby Formula Act of 2022, 
                the Secretary shall ensure there is a memorandum of 
                understanding between the Secretary and the Secretary of 
                Health and Human Services that includes procedures to 
                promote coordination and information sharing between the 
                Department of Agriculture and the Department of Health 
                and Human Services regarding any supply chain 
                disruption, including a supplemental food recall.''; and
            (3) by adding at the end the following:

[[Page 136 STAT. 1226]]

    ``(r) Emergencies and Disasters.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, during an emergency period, the Secretary may modify or 
        waive any qualified administrative requirement for one or more 
        State agencies if--
                    ``(A) the qualified administrative requirement 
                cannot be met by State agencies during any portion of 
                the emergency period under the conditions which prompted 
                the emergency period; and
                    ``(B) the modification or waiver of such a 
                requirement--
                          ``(i) is necessary to provide assistance under 
                      this section; and
                          ``(ii) does not substantially weaken the 
                      nutritional quality of supplemental foods provided 
                      under this section.
            ``(2) Duration.--A waiver established under this subsection 
        may be available for a period of not greater than the emergency 
        period and the 60 days after the end of such emergency period.
            ``(3) Definitions.--In this subsection:
                    ``(A) Emergency period.--The term `emergency period' 
                means a period during which there exists--
                          ``(i) a public health emergency declared by 
                      the Secretary of Health and Human Services under 
                      section 319 of the Public Health Service Act (42 
                      U.S.C. 247d);
                          ``(ii) any renewal of such a public health 
                      emergency pursuant to such section 319;
                          ``(iii) a presidentially declared major 
                      disaster as defined under section 102 of the 
                      Robert T. Stafford Disaster Relief and Emergency 
                      Assistance Act (42 U.S.C. 5121 et seq.); or
                          ``(iv) a presidentially declared emergency as 
                      defined under section 102 of the Robert T. 
                      Stafford Disaster Relief and Emergency Assistance 
                      Act (42 U.S.C. 5121 et seq.).
                    ``(B) Qualified administrative requirement.--The 
                term `qualified administrative requirement' means a 
                requirement under this section or a regulatory 
                requirement issued pursuant to this section.

    ``(s) Supply Chain Disruptions.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, during a supply chain disruption, including a supplemental 
        food product recall, the Secretary may modify or waive any 
        qualified administrative requirement for one or more State 
        agencies if--
                    ``(A) the qualified administrative requirement 
                cannot be met by State agencies during any portion of 
                the supply chain disruption, including a supplemental 
                food product recall, under the conditions which prompted 
                such disruption or recall; and
                    ``(B) the modification or waiver of such a 
                requirement--
                          ``(i) is necessary to provide assistance under 
                      this section; and
                          ``(ii) does not substantially weaken the 
                      nutritional quality of supplemental foods provided 
                      under this section.
            ``(2) Waiver authority.--The Secretary may, under a waiver 
        or modification under paragraph (1)--

[[Page 136 STAT. 1227]]

                    ``(A) permit authorized vendors to exchange or 
                substitute authorized supplemental foods obtained with 
                food instruments beyond exchanges for an identical 
                (exact brand and size) food item;
                    ``(B) waive any requirement with respect to medical 
                documentation for the issuance of noncontract brand 
                infant formula, except for the requirements for 
                participants receiving Food Package III (as defined in 
                section 246.10(e)(3) of title 7, Code of Federal 
                Regulations (as in effect on the date of the enactment 
                of this subsection));
                    ``(C) waive the maximum monthly allowance for infant 
                formula; and
                    ``(D) waive any additional qualified administrative 
                requirement to address a supply chain disruption, 
                including a supplemental food product recall.
            ``(3) Duration.--A waiver or modification established under 
        this subsection--
                    ``(A) may be--
                          ``(i) <<NOTE: Determination.>>  available for 
                      a period of not more than 45 days, to begin on a 
                      date determined by the Secretary; and
                          ``(ii) <<NOTE: Notice.>>  renewed so long as 
                      the Secretary provides notice at least 15 days 
                      before such renewal; and
                    ``(B) shall not be available after the date that is 
                60 days after the supply chain disruption for which such 
                waiver is established ceases to exist.
            ``(4) Transparency.--
                    ``(A) <<NOTE: Determination. Notification.>>  In 
                general.--If the Secretary determines that a supply 
                chain disruption exists and issues a waiver or 
                modification under this subsection, the Secretary shall 
                notify each State agency affected by such disruption and 
                include with such notification an explanation of such 
                determination.
                    ``(B) <<NOTE: Public information. Web posting.>>  
                Publication.--The Secretary shall make each 
                determination described in subparagraph (A) publicly 
                available on the website of the Department.
                    ``(C) <<NOTE: Notification.>>  State agency 
                requirements.--In the case of a waiver or modification 
                under this subsection related to infant formula, a State 
                agency notified under subparagraph (A) shall notify each 
                infant formula manufacturer that has a contract with 
                such State agency with respect to such notification.

[[Page 136 STAT. 1228]]

            ``(5) Qualified administrative requirement defined.--For 
        purposes of this subsection, the term `qualified administrative 
        requirement' has the meaning given the term in subsection 
        (r).''.

    Approved May 21, 2022.

LEGISLATIVE HISTORY--H.R. 7791:
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CONGRESSIONAL RECORD, Vol. 168 (2022):
            May 18, considered and passed House.
            May 19, considered and passed Senate.

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