Lawyer Expects Trump To Use DPA For Non-Meat Food Industry If Needed

April 30, 2020

After President Donald Trump directed the U.S. Department of Agriculture to keep meat and poultry plants running during the COVID-19 outbreak, a food industry lawyer told Inside Health Policy she believes the administration might again invoke the Defense Production Act to designate other areas of the food supply chain, including those regulated by FDA, as “critical infrastructure.”

The executive order issued Tuesday (April 28) utilized the Defense Production Act to require meat processing plants to remain open despite outbreaks of COVID-19 among employees, as the president believes closing the facilities threatens critical infrastructures.

Angela Spivey, a food and beverage industry lawyer and partner at Alston & Bird, expects the White House to use the authority beyond meat and poultry processors if other areas of the food supply chain become disrupted by SARS-CoV-2, the virus that causes COVID-19. However, whether the current mandate will resolve supply chain issues remains to be seen.

“We’ll want to watch a number of markers closely, including: whether shuttered plants abide by the Executive Order or have difficulty getting plant personnel back to work; and compliance with non-binding joint [Centers for Disease Control and Prevention] and [Occupational Safety and Health Administration] guidance on safety measures,” Spivey said.

If the White House were to invoke the Defense Production Act for FDA-regulated facilities, Spivey said it would not necessarily have any impact on FDA’s temporary suspension of domestic inspections.

“USDA regulated facilities are required to be under continuous inspection by [the Food Safety and Inspection Service], but that is not the case with FDA regulated facilities,” Spivey wrote to IHP. “FDA regulated facilities are operational now even though FDA has temporarily suspended inspections.”

FDA has said it does not believe the part of the food supply chain that falls under its regulation will be disrupted to the point that will require interference from the Trump administration.

“It is important to remember that food production and manufacturing and widely dispersed throughout the United States. If one facility closes, there are other facilities that manufacture the same type of product that can help fill the demand,” FDA Deputy Commissioner for Food Policy Frank Yiannas said in an online statement.

Domestic food processing plants regulated by FDA are not as centralized as meat and poultry plants, and the shutdown of a plant would be less likely to have large effects on the national supply chain, whereas, as Trump pointed out on Tuesday, just one meat processing shutdown could negatively affect the entire supply chain.

Spivey pointed out that FDA-regulated facilities have other advantages as well.

“Due to the nature of meat processing, which often necessitates workers being stationed close to one another, the industry is more vulnerable to the spread of COVID among workers,” Spivey said. “In many processed food facilities (often regulated by the FDA), companies have more flexibility to implement social distancing measures to better protect employees.” -- Kelly Lienhard (