This past week, FDA and USDA issued a Memorandum of Understanding Regarding the Potential Use of the Defense Production Act with Regard to FDA-Regulated Food During the COVID-19 Pandemic. The MOU refers to “potential use” because USDA has not yet invoked its DPA authority. Nor will it, in any likelihood. Messaging matters, however, and so the MOU may still operate to significantly influence the food system. What message does it send exactly?
That depends on the “potential use” of the DPA that might conceivably come into play. The MOU is tied to President Trump’s April 28 Executive Order delegating authority to USDA to “take all appropriate action under [section 101 of the of the DPA] to ensure that meat and poultry processors continue operations.” Popular media described this action in bold terms along the lines of ‘Trump Orders Meat Plants to Stay Open.’ And President Trump himself framed the Order as a solution to “certain liability problems.” But the actual reach of the order is much more modest.
As University of Texas law professor Steve Vladeck explained the day the order issued, “Nothing in the text of the Order claims any power to force plants to ‘stay open,’ and nothing in the statutory sections on which the Order purports to rely delegates such authority.” Rather, the April 28 order directs the USDA Secretary to use the authority under section 101 of the DPA “to determine the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry, consistent with the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.” Section 101 of the DPA is quite limited in scope. It gives the president authority to “require performance” of government orders or contracts over private ones, and “to allocate materials, services, and facilities … as he shall deem necessary or appropriate to promote the national defense.”
What do these authorities mean in practical terms? The government might put in an order with a meatpacking plant for product to supply a federal hunger relief program, and forbid the plant from fulfilling private orders, including to export markets, before fulfilling the government’s order. Or conceivably the government might act as a liaison to food companies seeking personal protective equipment for their workers, and order PPE manufacturers to prioritize orders that go towards protecting food workers. The legal ground for the latter example is less certain but regardless, does anyone expect the Trump Administration to assume this level of involvement in its pandemic response? If so, it might first use its DPA authority to make more testing available.
Critically, the April 28 Order does not give USDA or any other federal agency the authority to overrule a local public health department’s decision to close a meatpacking plant. The Tenth Amendment of the Constitution reserves such ‘police powers’ to the states. Even attempting to accomplish such an end through indirect means—by say, withholding federal financial aid—would represent an unconstitutional encroachment on state sovereignty.
As a side note, the Order also says nothing about liability for companies that unreasonably expose their workers to infection risk. Here, the federal government has acted in the past to override state tort law, perhaps most notoriously in defense of gun manufacturers. But Congress must act to provide that sort of immunity, which explains some politicians’ insistence on such provisions in the next corona virus relief package.
All of this is to say that the April 28 Executive Order is a paper tiger. But to the extent that the Administration sought to cow state and local public health officials, it may have succeeded. According to recent reporting, “As of May 19, nearly all of the once-closed meatpacking plants have started back up.” Large meatpackers have declined to disclose data on how many of their workers have fallen ill or died, but according to an analysis by Johns Hopkins University researchers, the rate of COVID-19 infections for counties with very large meatpacking plants was twice the rate in counties without for the week following the Trump executive order.
Now, FDA is joining forces with USDA in “carrying out Executive Order 13917.” Pursuant to the MOU, FDA will “as appropriate, educate domestic stakeholders about . . . the potential use of DPA authority,” and consult with USDA to “issue orders related to or utilize other delegated USDA DPA authorities with regard to food resources and food resource facilities.”
Again, the prospect of any such “orders” or other use of “delegated authorities” is farfetched, if not downright farcical. So what is the point of this document? The same as EO 13917, to send a message: namely, keep the grocery shelves packed, or else!
One might argue that industry needs to keep workers safe to avoid supply disruptions, and this simply gives FDA more of a stick to motivate companies to adhere to the voluntary worker protection standards issued by the Centers for Disease Control and the Occupational Safety and Health Administration. The MOU contemplates that FDA will “direct FDA-regulated entities” to this “applicable guidance.” But if worker protection is the objective, a much better tool would be an enforceable temporary standard to protect workers.
In the absence of such a standard, putting pressure on food companies and public health officials to keep plants open poses a danger to workers, and ultimately, to consumers. A safe workplace is the most basic prerequisite for creating a culture of food safety. As we know from recent reporting, the food industry faces significant challenges that will increase food safety risk, including widespread absenteeism and the suspension of visits from outsiders, including from food safety auditors. At the same time, CDC officials have said in recent stakeholder calls that foodborne illness reporting from the states has sharply declined. No surprise there given that under the best of circumstances, getting a stool sample from a foodborne illness victim faced a lot of hurdles.
In this crisis environment, federal food regulators should take a more active role to protect the food supply. But if that role undermines public health officials and workers, we will all suffer. More than ever, consumers need effective federal oversight of the food system. Baseless threats of using the Defense Production Act are not helping.
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