Kemp and Fellow Governors Call on Biden Administration to Take Further Action on Formula Shortage

Governor Brian P. Kemp has joined 18 other governors in calling on the Biden Administration to take immediate, decisive action to ease the strain parents are experiencing due to the nationwide baby formula shortage.

The coalition sent a letter detailing their concerns and additional courses of action to President Biden.

“Baby formula is essential to 8.2 million Americans, and after months of inaction by the federal government, the out-of-stock rate for baby formula now stands at 40 percent nationwide,” said Governor Kemp. “This crisis has been exacerbated by surging inflation and the rising costs of consumer goods, and President Biden and the U.S. Food and Drug Administration have failed to adequately address the nationwide formula shortage. Instead of shifting blame and delaying action, my fellow governors and I are imploring them to take additional steps to increases formula availability while also addressing the underlying regulatory barriers that led to a shortage of this significance.”

Governor Kemp renewed the State of Emergency for Supply Chain Disruptions via Executive Order 05.26.22.01. The order prohibits price gouging of baby formula. If Georgians feel they have fallen victim to price gouging, they should contact the Office of the Attorney General.

Joint Governors Letter to President Biden on Baby Formula Shortage:

Dear Mr. President,

As governors, we are committed to protecting the life, health, safety, and welfare of our citizens, especially our vulnerable infant population.  The supply chain for essential goods is broken, and while we have a vested interest in promoting free commerce amongst our states, a crisis that risks the lives of our youngest demands immediate, decisive, and robust action.

As conditions continue to worsen, we call on you to take action that increases formula availability while also addressing underlying regulatory barriers.  Baby formula is essential to 8.2 million Americans who regularly purchase liquid or powdered formula and the estimated 53% of infants aged three months old who receive formula at some point.  After months of inaction, the out-of-stock rate for baby formula now stands at 40% nationwide and up to 50% in six of our states, a crisis exacerbated by surging inflation and the rising cost of consumer goods.

There is perhaps no singular source of nourishment more necessary for the welfare of our nation than the nutrition provided to our infants.  In addition to expanding domestic production through your invoking the Defense Production Act, we believe the Administration should identify where regulatory barriers hastened this crisis.

First, we ask that your Administration take more aggressive action to temporarily suspend red tape that limits the importation of safe infant formula from foreign countries.  The U.S. Food & Drug Administration (FDA) claims it will “expedite” the certificate process and “streamline import entry review” and exercise “enforcement discretion” on “minor labeling.”  We agree that importation should be an immediate priority to replenish empty shelves, but until American domestic suppliers are back to full production capacity, your Administration must ensure the rapid importation of foreign formula from trusted trade partners such as the European Union, Canada, Mexico, and others.  Your Administration can take action to end the crisis by:

1. Immediately suspending all tariffs, quotas, and similar trade restrictions on infant formula until the crisis is abated.  While fair trade negotiations play an important role in protecting our nation’s domestic producers from unfair competition, the current crisis calls for putting consumers and parents first.  We should also incentivize safe, foreign producers to shift product to the United States during this period of scarcity.
2. Immediately updating FDA labeling standards on foreign formula.  While the FDA intends to exercise discretion on “minor labeling issues”, now is the time to consider how the federal government can more effectively update the standards to allow import from trusted foreign partners.  For formula originating from countries with equal or higher nutritional requirements, such as many European countries, enforcing labeling restrictions even with discretion limits our ability to resolve the shortage.  Moreover, while there is value in ensuring nutritional labeling is clear for the consumer, this could be achieved by FDA and state agencies partnering to educate the consumer on what newly available products could be substituted for unavailable products.

Longer term, we believe it is important to improve America’s domestic supply chain.  A fragile and tenuous supply chain for essential infant formula puts our economy and families at unnecessary risk.  In addition to taking federal trade and regulatory action, your Administration should consider additional reforms to the U.S. Department of Agriculture Supplemental Nutrition Program for Women, Infants, and Children (WIC) and the FDA recall order process by:

1. Bringing forward structural changes to the WIC program to encourage choice and competition in formula and other essential products, including allowing WIC recipients to purchase alternative brands.
2. Ordering an independent and transparent after-action report of past FDA recall orders, including recommendations on how the FDA inspection and recall process could be improved and expedited to avoid disruption to critical essential goods and nutrients in the future.

Finally, we must recognize the important partnership with retailers, producers, and non-profits that are going above and beyond to meet the challenge.  We stand ready to enhance the partnership between our states and the federal government as well as the private and public sectors to assist parents in need.  Now is the time parents need the assurance that they can provide the basic necessities for their family, and nothing is more critical than infant formula.

Sincerely,

Governor Bill Lee State of Tennessee, Governor Doug Ducey State of Arizona, Governor Asa Hutchinson State of Arkansas, Governor Ron DeSantis State of Florida, Governor Brian Kemp State of Georgia, Governor Brad Little State of Idaho, Governor Kim Reynolds State of Iowa, Governor Larry Hogan State of Maryland, Governor Tate Reeves State of Mississippi, Governor Greg Gianforte State of Montana, Governor Pete Ricketts State of Nebraska, Governor Chris Sununu State of New Hampshire, Governor Doug Burgum State of North Dakota, Governor Mike DeWine State of Ohio, Governor Kevin Stitt State of Oklahoma, Governor Henry McMaster State of South Carolina, Governor Greg Abbott State of Texas, Governor Spencer Cox State of Utah, Governor Mark Gordon State of Wyoming