II 117th CONGRESS 2d Session S. 3440 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. 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.