President Trump Invokes Defense Production Act to Ensure Continued Operation of Meat and Poultry Processing Facilities

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Faegre Drinker Biddle & Reath LLP

On April 28, 2020, President Trump signed an executive order (the “Order”) invoking the Defense Production Act of 1950, 50 U.S.C. 4501 et seq. (DPA) to address food supply chain disruptions caused by reduced production or closure of beef, pork and poultry processing facilities due to COVID-19 employee illnesses. The Order emphasizes that “[s]uch closures threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency.” It highlights that “closure of a single meat or poultry processing facility can severely disrupt the supply of protein to an entire grocery store chain.” In response, President Trump declared that meat and poultry in the food supply chain meets the criteria for a “critical and strategic material” under the DPA, which empowers the President to direct private companies to act in the national interest during times of war, national emergency, or after terrorist attack — and, in this instance, to control the distribution of food in the civilian market.

The Order delegates authority under the DPA to Secretary of Agriculture Sonny Perdue to “ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.” The Order instructs the Secretary, in consultation with the heads of such other executive departments and agencies, 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.” The Order also stipulates that the Secretary “shall issue such orders and adopt and revise appropriate rules and regulations as may be necessary to implement the Order.” Until then, the Order does not specify any requirements for meat and poultry processing plants but refers to recent interim guidance issued by the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) for Meat and Poultry Processing Workers and Employers.

While the Order specifically addresses meat and poultry producers, it authorizes the Secretary to identify “additional food supply chain resources” as critical and strategic materials under the DPA. Additional clarification on the scope of food production facilities affected by the Order may be forthcoming from the Secretary.

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