Use of Defense Production Act Authorities to Respond to the U.S. Infant Formula Shortage
INSIGHTi
Use of Defense Production Act Authorities to
Respond to the U.S. Infant Formula Shortage
May 24, 2022
On May 18, 2022, as part of a broader response to a domestic shortage of infant formula, President Joseph
R. Biden, Jr. issued Presidential Determination 2022-13 (the Determination), delegating several
authorities under the Defense Production Act of 1950 (DPA; 50 U.S.C. §§ 4501 et seq.) to the Secretary
of Health and Human Services (HHS) to ensure availability of infant formula. This Insight summarizes
the Determination, provides background on use of the DPA to address food supply chain issues, and
explores potential considerations for Congress.
DPA Background
The DPA provides presidential authorities to mobilize domestic industry to promote national defense, as
defined by statute (50 U.S.C. § 4552(14)). Congress has expanded this definition several times since
1950, with the scope of the DPA now extending beyond U.S. military preparedness to encompass
“homeland security ... emergency preparedness activities conducted under Title VI of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act and critical infrastructure protection and
restoration” (50 U.S.C. §4552(14)). The DPA defines critical infrastructure (CI) as “any systems and
assets, whether physical or cyber-based, so vital to the United States that the degradation or destruction of
such systems and assets would have a debilitating impact on national security, including, but not limited
to, national economic security and national public health or safety” (50 U.S.C. §4552(2)).
Presidential Determination 2022-13
In the Determination, President Biden first establishes that the “national infant formula supply chain” is
“critical infrastructure that is essential to the national defense, including to public health and safety.”
President Biden then invokes Title I of the DPA’s authorities by determining, as required by section
101(b) (50 U.S.C. §4511(b)), that the ingredients necessary to manufacture infant formula are:
Scarce and critical materials;
Essential to the national defense; and that
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Requirements for such materials cannot otherwise be met absent a significant dislocation
of the civilian market’s normal distribution of such materials.
Title I allows the President to require entities to (1) prioritize and accept government contracts for
materials and services, and (2) allocate or control the general distribution of materials, services, and
facilities as necessary. Through the Determination, President Biden delegates Title I authorities to the
HHS Secretary for all health resources, including the ingredients necessary to manufacture infant formula.
The HHS Secretary is then directed to use these authorities, in consultation with the Secretary of
Agriculture and other appropriate agency heads, to determine “the proper nationwide priorities and
allocation of all ingredients necessary to manufacture infant formula, including controlling the
distribution of such materials (including applicable services) in the civilian market.” The HHS Secretary
is also delegated certain authorities under Title VII of the DPA, including authorities for establishing a
volunteer body of industry executives that could step into senior federal positions in the event of an
emergency requiring the activation of such an advisory body.
On May 22, the Administration announced the first related actions, with two manufacturers granted
authorization to place prioritized orders for raw materials and consumables used in the production of
infant formula.
Prior Use of DPA Authorities for Food Supply Chain
Issues
The domestic food supply chains and its components are not explicitly referenced within the DPA’s
statutory language. However, President Barack H. Obama’s Executive Order (E.O.) 13603, which
delegates DPA authorities across the executive branch, acknowledges that the DPA might be used to
address food resource issues, and delegates related authorities to the Secretary of Agriculture. “Food and
Agriculture” is also one of 16 CI sectors established by Presidential Policy Directive (PPD) 21 in 2013,
with the Department of Agriculture designated as the corresponding sector-specific agency.
Use of the DPA to address general food supply chain disruptions is relatively rare; however, the DPA has
been used to prioritize contracts for food distribution to disaster survivors and responders in hazard areas.
Additionally, the Trump Administration issued E.O. 13917 in 2020 to ensure a “continued supply of meat
and poultry” during the COVID-19 public health emergency. E.O. 13917 designated the U.S. “national
meat and poultry supply chain” as a component of domestic CI, and delegated authority under Title I of
the DPA to the Secretary of Agriculture. E.O. 13917 has been the subject of some political and legal
controversy.
Considerations for Congress
Recent invocations of the DPA in response to shortages in the civilian economy have
provoked controversy, most notably with respect to perceived seizures of scarce medical
supplies following the placement of priority government contracts during the COVID-19
pandemic. The federal government also faced challenges in distributing scarce supplies.
Congress may monitor how the Administration uses DPA authorities in its response to the
current infant formula scarcity, with particular attention to factors such as the degree to
which actions under the DPA contribute to the alleviation of consumer shortages.
Congress may consider whether appropriations for HHS staffing and operations are
sufficient to oversee a response under the DPA to the infant formula shortage, or whether
to appropriate additional funds for related activities. Infant formula is not covered by
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existing DPA allocations to HHS made by the American Rescue Plan Act of 2021
(ARPA; P.L. 117-2), which are limited to medical supplies and equipment.
Some congressional discussion and expert analysis suggests that the DPA’s definition of
CI may include all elements of the U.S. domestic food supply chain; however, this
definition does not expressly apply to food items or associated supply chains. Congress
may consider amending the DPA’s definition of “critical infrastructure” to clarify its
scope.
The DPA’s definition of “national defense” may invite broader applications of the DPA to
address supply chain shortages. Congress may consider whether the DPA, as written or as
amended, is an appropriate tool to resolve such shortages in the domestic economy, or
whether to pursue establishing an alternative mechanism to respond to civilian scarcities.
Congress may also review the root causes of commercial market disruptions and the
effectiveness of using DPA authorities to address such disruptions relative to other policy
options.
Author Information
Heidi M. Peters
Nina M. Hart
Analyst in U.S. Defense Acquisition Policy
Legislative Attorney
Erica A. Lee
Analyst in Emergency Management and Disaster
Recovery
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