Food Supply

USDA and FDA announced this week a Memorandum of Understanding (MOU) to help prevent interruptions at FDA-regulated food facilities, including fruit and vegetable processing, to ensure the American food supply chain can continue to flow without interruption. This MOU was as a result of the American Fruit and Vegetable Processors and Growers letter to the USDA and the HHS, FDA requesting their support during the fruit and vegetable harvesting and pack season starting this month.

The MOU creates a process for the two agencies to make determinations about circumstances in which the USDA could exercise its authority under the Defense Production Act (DPA) with regard to certain domestic food resource facilities that manufacture, process, pack, or hold foods, as well as to those that grow or harvest food that fall within the FDA’s jurisdiction.

FDA will continue to work with state and local regulators in a collaborative manner, further action under the DPA may be taken, should it be needed, to ensure the continuity of our food supply. As needed, the FDA will work in consultation with state, local, tribal and territorial regulatory and public health partners; industry or commodity sector; and other relevant stakeholders (e.g. Centers for Disease Control and Prevention, Occupational Safety and Health Administration) to chart a path toward resuming and/or maintaining operations while keeping employees safe.The MOU makes clear that the FDA will work with stakeholders to monitor the food supply for food resources not under the USDA’s exclusive jurisdiction in order to prevent interruptions at FDA-regulated food facilities.

Both the USDA and FDA will work with facilities and farms, CDC, OSHA, and state, tribal, and local officials to ensure facilities and farms are implementing practices consistent with federal worker safety guidelines. USDA & FDA are working with federal partners with an expertise in worker safety to develop more information on how to protect workers health. They will continue to provide information and update frequently asked questions on both the FDA and USDA’s websites.

USDA and FDA will also be working with other federal partners to assist the food and agriculture industry in addressing shortages of personal protective equipment (PPE), cloth face coverings, disinfectants and sanitation supplies.

Michael Best Strategies (MBS) and the Michael Best legal team has been actively working with both USDA and FDA leadership during the pandemic to ensure that food processors concerns are being heard. MBS has voiced how essential shelf stable fruit and vegetables are to both our institutions such as schools and hospital as well as to consumer and how there is only one shot to get our processed fruits and vegetable canned, frozen and dried to be available for the entirety of the year. They have pushed for USDA & FDA to provide guidance to food processors, education and outreach to local and state public health officials as well PPE and other equipment to ensure that their essential work does not get interrupted. In a press release, USDA & FDA acknowledged how essential food processors have been during the COVID-19 pandemic. “We are extremely grateful to essential workers for everything they do every day to keep our pantries, refrigerators and freezers stocked. All of the food and agriculture sector — whether it is regulated by the USDA or FDA — are considered critical infrastructure, and it is vital for the public health that they continue to operate in accordance with guidelines from the CDC and OSHA regarding worker health and safety. As we work to get through the current challenge together, we remain committed to workers’ safety, as well as ensuring the availability of foods, and that our food remains among the safest in the world.”

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Bio Link Denise co-leads the federal practice at Michael Best Strategies with expertise in association and coalition management as well as development of public policy strategies, at both the state and federal level. She was active, on behalf of firm clients, during the recent federal tax reform debate, much as she was during the last major tax reform in 1986. Expertise: Regulatory Law, Tax & Trade, Energy, Environmental, Food, Agriculture, and Telecommunications