Since the federal government took an “All the King’s horses and All the King’s men” approach to overcoming the 2022 infant formula shortage, it’s a little surprising that there is still something major to do about it.

But there is. The USDA’s  Food and Nutrition Service (FNS) is publishing a final rule to implement the so-called “Access to Baby Formula Act.” It was signed into law on May 21, 2022.

The Formula Act  was part of the months-long, whole-of-government response to the “recall-driven” infant formula shortages in 2022, 

The new law is supposed to provide access to the formula for WIC participants, even in unforeseen circumstances like disasters and emergencies, in addition to supply chain disruptions. 

FNS’s  Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) is the largest purchaser of infant formula in the United States. WIC’s market dominance, at the time when shortages became severe, contributed to the multi-billion dollar industry being controlled by just four companies that controlled 90 percent of the market.

One of those four was Abbott Nutrition, which temporarily shut down out of concern for food safety.

FNS claims to take its role in caring for families exceptionally seriously, including ensuring the people served by our programs, including WIC, have access to the safe, healthy foods they need to thrive. 

FNS also says it’s been working since the Access to Baby Formula Act was passed to implement the law as a final rule to strengthen and guide its response to any future baby formula-related challenges.  

This final rule will implement permanent, expanded authority for the Secretary of Agriculture to waive or modify specific legal requirements to help ensure the continuity of WIC services during emergencies and supply chain disruptions with an impact on WIC. 

It also adds requirements for WIC state agencies to include language in their WIC infant formula cost containment contracts that describe flexibilities available to WIC state agencies in case of an infant formula recall and how an infant formula manufacturer would protect against disruption of access to infant formula.  

Further, the final rule ensures that WIC state agencies anticipate and prepare for events that may disrupt normal program operations to reduce impacts on participants when an event does happen.  

The rule was scheduled to be published on Dec. 14 and will be open for public comment for 60 days, closing on Feb. 12. 

FNS is requesting comments on this rule through Feb. 12, 2024, to inform it of any future rules, policies, and guidance related to infant formula to ensure its best support of the WIC population regardless of what circumstances arise.

The infant formula shortage lasted for months, leaving many parents on their own to find supply, sometimes across multiple states. Recalls for Cronobaqcter sakazakii illnesses associated with powdered infant formula contributed to the national shortage.

The national shortage forced the Biden Administration to open its domestic formula market to the supply from imports. Almost no foreign formula was allowed into the U.S. previously.