Appendix C - Access to Baby Formula Act

Appendix C
Access to Baby Formula Act of 2022
(P.L. 117-129)

PUBLIC LAW 117–129—MAY 21, 2022

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.

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Access to Baby Formula Act
of 2022’’.

May 21, 2022
[H.R. 7791]
Access to Baby
Formula Act
of 2022.
42 USC 1771
note.

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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) 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) 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) 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:

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Definition.

Compliance.

Deadline.
Procedures.

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136 STAT. 1226

PUBLIC LAW 117–129—MAY 21, 2022
‘‘(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)—

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PUBLIC LAW 117–129—MAY 21, 2022

136 STAT. 1227

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‘‘(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) available for a period of not more than 45
days, to begin on a date determined by the Secretary;
and
‘‘(ii) 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) 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) PUBLICATION.—The Secretary shall make each
determination described in subparagraph (A) publicly available on the website of the Department.
‘‘(C) 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.

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Determination.

Notice.

Determination.
Notification.

Public
information.
Web posting.
Notification.

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136 STAT. 1228

PUBLIC LAW 117–129—MAY 21, 2022
‘‘(5) QUALIFIED ADMINISTRATIVE REQUIREMENT DEFINED.—
For purposes of this subsection, the term ‘qualified administrative requirement’ has the meaning given the term in subsection
(r).’’.

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Approved May 21, 2022.

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

Æ

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