Jonathan Havens, partner in the law firm of Saul Ewing Arnstein & Lehr LLP, explains the causes of the current infant formula shortage, and discusses possible solutions to the crisis, both short- and long-term.

The recent voluntary recall of infant formula by Abbott Nutrition might have some impact on the current nationwide shortage of that essential product, but there are other factors as well, Havens says. Unlike many other consumer products that have experienced spot shortages over the past two years, infant formula sold in the U.S. is almost entirely manufactured domestically. But some of the ingredients are sourced from foreign markets, so the congestion experienced at major American ports ends up having an impact on the supply of finished product.

In addition, more than half of the infant formula produced in the U.S. occurs under the U.S. Department of Agriculture’s Special Supplemental Nutrition Program for Women, Infants and Children (WIC), which limits the variety of brands available to purchasers of the product with WIC benefits. As a result, the particular type of authorized infant formula might not be available to the consumer.

Congress has enacted legislation granting federal and state WIC administrators more leeway in deciding which brands of infant formula are covered under the program. “In a situation like this,” Havens says, “it’s better to dispense with some requirements that don’t have a meaningful impact on safety.” it 

In addition, President Biden has invoked the Defense Production Act, which allows for the diversion of key ingredients to the targeted essential product from other uses. There’s still the matter of shifting ingredients from one manufacturer to another, and ramping up production. And there remain complications involved in the sourcing and manufacture of infant formula, leading to persistent shortages on store shelves. Such moves are helpful, but “not an overnight fix,” Havens says.