Federal agencies’ roles in helping to solve the baby formula shortage

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The Department of Health and Human Services has some new authorities to hopefully help resolve the nationwide shortage of baby formula. That’s after President Joe Biden invoked the somewhat rarely used Defense Production Act last week. But it’s not exactly clear how HHS will use those newly delegated authorities and how much help they could provide. Meanwhile, lots of questions about the crisis on Capitol Hill, and it’s where the Federal Drive with Tom Temin found WTOP’s Mitchell Miller. And he offered a preview of what to expect on the Hill this week.

Interview transcript:

Jared Serbu: Hi, Mitchell.

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Mitchell Miller: Hi, there.

Jared Serbu: Let’s start with the formula issue. Best we can tell, where do things stand right now, both in terms of the administration’s response and any ways in which lawmakers might be looking to intervene or at least conduct oversight?

Mitchell Miller: FDA Commissioner Robert Califf says improvements are getting underway this week. And he told members of an angry House panel last week that it could take several weeks before parents actually start to see baby formula on shelves like they’re accustomed to see. And this of course, goes back to the issues at Abbott’s production facility in Michigan. Lawmakers from both parties still very upset with the FDA saying it was slow to react to these problems that they say they’ve known about for months. Now for its part, the Biden administration has started a program to use military aircraft to actually bring in formula from foreign manufacturers. Generally during a regular part of the year, basically, you have 98% of the baby formula being made and distributed here at facilities in the United States. So this is a big change. And the House also passed a bill to provide the FDA with $28 million last week, but it’s unlikely to pass in the Senate. Now the Senate did join the House and approving changes in the WIC program for low income women. Essentially, this allows them to go to other baby formulas, if you will. Normally they have to get one specific one that’s USDA approved. This loosens the regulations related to that. So that was one area where both the House and the Senate were both on the same page. But also, as you know, within the FDA, there is a lot of angst, frankly, within the agency about how things are being managed. Now the Commissioner Califf has appointed Janet Woodcock, who’s deputy commissioner and had been acting commissioner of FDA, to have a bigger role on not only this issue, but other major food issues. But consumer advocates have been critical of that. They say her expertise has really been more related to drug approvals. A lot of people from the outside looking in say the FDA needs to do a lot more within the organization to get ahead of some of these big issues.

Jared Serbu: Well, you could be a little clearer on, to the extent there was finger pointing and the FDA is direction, what exactly is the criticism? What do members of Congress who are pointing that finger think they could have done better to head off this crisis?

Mitchell Miller: Well, what they’re saying is that there were starting to be rumblings of issues going back as far as last fall. And then when it really hit the fan was in February, when you had specific problems at the Abbott facility, which unfortunately, it looks like at least two baby deaths are related to some kind of problems with the plant and safety issues there. And what they’re saying is that, as far back at least as February and maybe even beyond that, that the FDA should have been taking a much more aggressive look at what was happening at that plant. Eventually, of course, the FDA did shut down the operations at the plant. But they’re arguing that there was really no longer term plan to get the plant back up, or to figure out with all the supply chain issues that have ramped up what they were going to do to actually get the baby formula to people. And then of course, obviously, it just blew up when you had people getting to the stores and not seeing it. And I’ve talked to some lawmakers about this. I talked to Sen. Tim Kaine of Virginia, and he acknowledged that Congress was frankly slow on its own part to recognize, he said he didn’t himself really realize that there was a problem until about a month ago. So I think in a lot of these instances, there’s plenty of blame to go around.

Jared Serbu: Let’s zoom out a bit and talk about the legislative schedule some, here. I know it’s been a few busy weeks of congressional hearings on both the House and Senate side. I think the House is actually out now for at least a bit. Is this kind of the sign of things winding down toward election season and prospects of legislation getting dimmer?

Mitchell Miller: It really looks like that, Jared. I mean, right now you have this week the House is out. They will be back the Senate is in. But right now, there’s really this feeling that what is actually going to get done? And there’s really not a good optimistic feeling about a lot of things getting done. Of course last week, the Senate followed the House and did pass the nearly $40 billion in Ukraine aid. That has obviously dominated a lot of things but in terms of federal agencies and things actually getting done on the more traditional level, it’s really been slow, especially even for a midterm election year. Obviously congressional Democrats have been trying to get some kind of reconciliation measure through for months, but they keep hitting the stop sign. Some of them say that the stop sign is Sen. Joe Manchin. But nonetheless, it does not look like there’s going to be even piecemeal legislation which they have talked about, whether it’s adding to daycare or providing more child care funding, or lowering prescription drug prices. A lot of these get a lot of discussion among congressional Democrats but realistically, there’s just no path forward for it. You have a 50/50 Senate. And of course, you need the 60 votes to overcome the filibuster. So I don’t see a lot of optimism right there about any kind of legislation getting done. And then if we move to the the more basics, the nuts and bolts of congressional budgeting, you have the four corners, you have the appropriators who have been saying, really now for many weeks that yes, we’re slowly making some progress here. But there hasn’t really been any kind of breakthrough moment where we thought that okay, now they’re finally getting to the next fiscal year budget. It’s still very early in that process. And as you know, from past years, they just don’t generally get a lot of these major bills passed in a midterm election year.

Jared Serbu: Yeah, and I think folks are pretty used to living under [continuing resolutions] for at least the first few months now of every federal fiscal year. Is it basically just a certainty, especially with the election year that that’s going to be the case again, for this year?

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Mitchell Miller: I think there’s no doubt about it. I mean, the CR is going to be back, we’re going to see a little bit of optimism here and there, and then it’ll all fall to the side as it usually does. So we’ll be looking at a continuing resolution sometime late in the year and there’s just not enough agreement on either side. I mean, you do have some people that think that they could push through and maybe get a couple of spending bills through, but that would be even optimistic. So I think we’re just headed for those two familiar letters: CR.

Jared Serbu: And I know one agency budget in particular you’re watching is the IRS, which the president has proposed, I believe $80 billion in new funding for, and meanwhile, also some scrutiny from [the Government Accountability Office] over that agency. What are you watching there?

Mitchell Miller: Right. Congress has really been all over the IRS, as you know. And as Federal News Network reported last week, this new GAO report came out. This was requested by Idaho Sen. Mike Crapo, who is the ranking Republican on the Senate Finance Committee, a lot of concern in connection particularly with Republicans about whether or not the IRS was poking around too much into some personal things related to people who filed and whether people had gone too far in that. Now, this GAO report found that several hundred IRS employees over a decade or so violated various policies going [into] unauthorized access to taxpayer information. In some cases, they just don’t know exactly what was found, or particularly why it happened. The IRS has been somewhat opaque on some of the other, on some of the issues where people, it wasn’t really clear, frankly, what they were looking for, but they may have violated a policy nonetheless. So that’s been happening, and then related to the $80 billion that the president wants, there’s just no way obviously that they’re going to get it. A lot of Republican opposition to this. Democrats on the other side, say you’re going to continue to have these problems with the IRS. And in terms of paper backups, and not getting enough audits done and all of this getting, this waiting game at the IRS that we’re familiar with if you don’t provide some additional funding. But right now, I just don’t see anything close to that kind of funding happening. Although the IRS has certainly made a big push to try to get more resources and try to get that paper backlog down although it has made some some progress in that area.

Jared Serbu: All right, WTOP’s Mitchell Miller joining us from the Capital. Thanks a lot, Mitchell.

Mitchell Miller: You bet.

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