COVID-19 Update: FDA and USDA Issue Memorandum of Understanding Regarding the Potential Use of the Defense Production Act with Regard to FDA-Regulated Food During the COVID-19 Pandemic

Hogan Lovells

The Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA) recently issued a Memorandum of Understanding (MOU) regarding the potential use of the Defense Production Act (DPA) with regard to FDA-regulated food. Importantly, USDA retains its DPA authority for products subject to FDA jurisdiction. The MOU, however, establishes that FDA will be responsible for monitoring the continued functioning of the FDA-regulated food production sector, bringing issues to USDA’s attention should FDA believe that USDA may need to exercise its DPA authorities to address a situation. The MOU is intended to supplement preparedness efforts and directs FDA to take the lead for FDA-regulated industry and monitor the food supply, work with stakeholders to identify and assess potential supply chain disruptions, issue applicable guidance for workers, and educate stakeholders about the potential for use of DPA authority. To the extent FDA identifies disruptions to the supply or other issues, both Agencies will work together to discuss appropriate action, including potentially invoking USDA’s DPA-delegated authorities. The MOU does not actually take any action under the DPA—it does not reflect action by USDA expanding the scope of the President’s invocation of the DPA beyond the meat and poultry sectors, nor does it constitute an order under the DPA.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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