Letter to State Health Commissioner Regarding Infant Formula

May 24, 2022

Dear State Health Commissioner:

Today, I am writing to you specifically since your WIC state agency holds an infant formula rebate contract with either Mead Johnson-Reckitt or Nestle Gerber. Although these manufacturers were not subject to a recall and have been working closely with us since February, ensuring us that they are working around the clock to produce as much additional formula as possible, we continue to hear that WIC participants are frustrated when they go to the store only to find formula that they cannot purchase with WIC benefits because it is the wrong size, product, or brand.

During this moment of crisis, I encourage you to talk with your contracted infant formula rebate manufacturer as soon as possible to discuss any flexibilities that could be implemented under your current contract, modification to that contract, or separate agreement. We recommend considering options that can be implemented over the next two months to allow for the nationwide formula supply to recover. These options could include a modification to the existing contract that allows the WIC state agency to:

1. Expand issuance to additional contract brand products (e.g., new container sizes, physical forms, or contract brand products that were not previously authorized in the state) for a rebate, or
2. If there continue to be shortages despite other efforts, expand issuance to non-contract brand products.

Issuing non-contract formula could result in additional costs to the WIC program, which state agencies may cover using WIC food funds, so long as state agencies and their infant formula contract manufacturers have an appropriate agreement in place.

We hope these discussions with your infant formula rebate manufacturer help you expand flexibilities for WIC participants. Once you have come to agreement, if your state agency has not already requested the necessary waivers, it should reach out to its respective USDA FNS regional office for assistance—we are committed to responding to most waiver requests within two business days. As a reminder, the most common waiver types are included below.

• Maximum Monthly Allowance: A waiver to provide administrative flexibility to exceed the MMA (and to issue multiple container sizes and physical forms) for infants in food packages I and II. Note: waivers related to food package III are also being considered.
• Medical Documentation: A waiver to provide administrative flexibility to allow for the issuance of noncontract brand infant formula without medical documentation for infants in food packages I and II.
• Vendor Exchanges: A waiver to allow WIC authorized vendors to treat WIC participants like all other customers when they exchange recalled product at the store.

Again, I want to reiterate that USDA is committed to continuing to meet with key stakeholders and providing technical assistance to WIC state agencies on issues as they arise. I want to acknowledge your WIC staff’s work in response to the recall over the past several months—I have heard many positive things about WIC staff over the past few months and I look forward to our continued partnership as we work together in support of the WIC program.

Best Wishes,

Stacy Dean
Deputy Under Secretary
Food, Nutrition, and Consumer Services