Biden Administration Sued, Allegedly Hid Documents on Baby Formula Investigation

Under President Joe Biden, the Federal Trade Commission (FTC) is being sued for allegedly blocking the release of records related to an investigation into the nationwide baby formula shortage. 

Ethics watchdog, The Functional Government Initiative (FGI), sent a request through the Freedom of Information Act in August to the FTC for the records, noting “public interest” as the reason for their release. However, the watchdog group hasn’t received any records and is now suing the Federal Trade Commission for “wrongfully withholding them,” according to a complaint.

“FGI anticipates that officials and staff at FTC discussed and participated in making and implementing decisions about the investigation into the infant formula crisis,” the watchdog’s lawsuit read. “The public does not have an ability to easily evaluate the decision-making surrounding FTC’s investigation.”

The U.S. has experienced a significant shortage in infant formula resulting from the global supply chain crisis that coincided with the Covid-19 pandemic. The formula shortage worsened in February 2022 after the FDA found bacteria at major formula manufacturer Abbott Labs in Michigan, which led to two infants dying. 

A former Abbott employee and whistleblower sent a 34-page complaint to the FDA in October 2021 warning of problems at the plant. The complaint was reportedly lost in the Food and Drug Administration’s mailroom for four months until they reviewed it, said the agency. 

The investigation was initiated by the FTC on May 24 into the shortage of formula “to identify the factors that contributed to the shortage or hampered our ability to respond to it,” said Lina Khan, the agency’s chairwoman at the time. The agency noted public comment was being sought “on whether the FTC itself or state or federal agencies may have inadvertently taken steps that contributed to fragile supply chains in the market for these crucial products for many American families.”

FGI’s lawsuit aims to obtain records on communications and this announcement between the Federal Trade commissioners or individuals on their staff with congressional staff and members of Congress regarding infant formula. 

The watchdog group wants to see records possibly showing FTC commissioners communicating with outside groups about the investigation, along with any “analysis or discussion” conducted by FTC commissioners on any comments submitted regarding infant formula. 

“FTC’s investigation into the causes of the infant formula crises is especially significant given that the Nation continues to confront shortages in the supply of infant formula that threatens the well-being of some of the country’s most vulnerable individuals,” read the lawsuit.

FTC said it is unable to comply with the request

On September 7, the Federal Trade Commission told the watchdog group in a letter that it would be unable to comply with its Freedom of Information Act request within the required 20-day period the law requires. The agency gave itself an extension due to the “unusual circumstances” that arose from the “need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.”

However, the FTC did not list a date when the request under the FOIA would be fulfilled, according to the watchdog group. The agency also didn’t say in what field facilities or location it searched for the records. 

“Americans deserve to know what this investigation is doing to get the baby formula back on the shelves and how it can help prevent future shortages,” said Pete McGinnis, FGI spokesman.

Currently, powdered infant formula has an 87% shelf stock rate, according to research and analytics firm IRI Worldwide. The shelf stock rate was between 88 and 90% before the start of the crisis and fell to 69% over the summer when around one-third of the formula was out of stock. 

The recently-released Census Bureau Household Pulse Survey found that about 30% of families with children under age 1 had difficulty finding formula by the end of September. 

A spokesperson with Abbott said, “Since our voluntary recall in February, investigations conducted by the FDA, the Centers for Disease Control and Prevention (CDC), and Abbott, including some genetic sequencing, retained product samples and available product from the four complaints, did not find any definitive link between the company’s products and illnesses in children. No retained samples of the recalled product tested positive for Cronobacter. And, in all four cases, unopened containers of formula in the infant homes tested negative for Cronobacter sakazakii.”