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Lawsuit says Biden admin ‘wrongfully withholding’ records related to FTC baby formula probe

October 31, 2022 | | Print Article

A new lawsuit filed by an ethics watchdog group claims President Joe Biden’s Federal Trade Commission (FTC) is “wrongfully withholding” records related to the FTC’s investigation into the national baby formula shortage that, despite the faded media coverage, is still ongoing.

After filing a Freedom of Information Act (FOIA) in August requesting that the FTC release records on the matter that are in the “public interest,” the Functional Government Initiative (FGI) has yet to receive any of the documents.

In a press release announcing the lawsuit, the watchdog, which is dedicated to “improving the American public’s awareness about the officials, decisions, and priorities of their government,” cites an October 2021 whistleblower report to the FDA.

“In May 2022, the nation began to experience a shortage of baby formula after a major producer was shut down in February by the FDA for health violations as some of the formula from that facility had been contaminated with bacteria,” the FGI writes. “However, it was soon revealed that a whistleblower tried to warn the FDA as early as October 2021 about the conditions and what could happen if they did not act.”

“Unfortunately, the FDA had a series of missteps in response,” the release continues.”Most notably, the whistleblower’s report was lost in the FDA’s mailroom for four months.”

“Instead of digging deep into what caused the crisis and what could have been done differently to stop it, the administration directed the FTC to investigate baby formula manufacturers,” the group explains.

The FGI alleges that the Biden administration has, through the FTC, attempted to “avoid accountability” and shift “all responsibility to the private sector.”

“This is not the first time the administration has turned to the FTC to avoid accountability for an emerging crisis, as the public has witnessed domestic energy producers and the meat industry pegged for unstoppable inflation,” the FGI states, adding, “FGI has an ongoing case against the FTC for withholding records pertaining to its oil and gas investigation.”

“Launching FTC investigations has been a favored tactic of this administration in the face of multiple crises,” said FGI spokesman Peter McGinnis. “Instead of changing policy or personnel, the FTC has been called in to refocus criticism on the private sector. Americans deserve to know what this investigation is doing to get baby formula back on the shelves and how it can help prevent future shortages.”

A copy of the Wednesday complaint was obtained by the Washington Examiner.

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

As BizPac Review previously reported, the FTC launched its investigation into the baby formula shortage in May with the aim of discovering the impact of the supply chain “meltdown” on the crisis and to see whether suppliers engaged in “deceptive, fraudulent or otherwise unfair business practices” in an attempt to capitalize on the stress-inducing situation.

In a statement released at the time, FTC Chair Lina Khan assured Americans, “We have been monitoring and will continue to monitor the ongoing infant formula shortage which is causing enormous anxiety, fear, and financial burden for American families.”

“The FTC is launching a public inquiry to identify the factors that contributed to the shortage or hampered our ability to respond to it,” Khan continued. “Learning from this experience can help determine how we can minimize the risk of similar shortages in the markets for other life-sustaining products.”

Additionally, Kahn stated that the commission “seeks public input 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.”

“Through its lawsuit, FGI aims to obtain records on this announcement and communications between FTC commissioners or their staff with members of Congress and congressional staff about infant formula,” the Washington Examiner reports. “The watchdog also wants records showing FTC commissioners perhaps communicating with outside groups about the investigation and any ‘analysis or discussion’ conducted by FTC commissioners on comments submitted about 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,” according to the lawsuit.

While the media has largely moved on from the baby formula shortage crisis, it is far from over for many Americans.

The Examiner states that, currently, “powdered infant formula has a shelf stock rate of 87%, according to data released Wednesday by the analytics and research firm IRI Worldwide. There was a shelf stock rate of between 88% and 90% in February 2021, prior to the start of the crisis, and a 69% rate this summer when roughly one-third of formula was out of stock.”

But data released Wednesday from the Census Bureau’s Household Pulse Survey paints a darker picture.

Among those families with babies under 1 year old, 987,789 of the 2,975,855 Americans who use “regular or routine infant formula” said at the end of September that they had “difficulty obtaining infant formula the last 7 days,” and 167,357 citizens said they had no baby formula on hand.

In short, the Examiner reports, “roughly 30% of families” were still having difficulty finding formula for their infants.

Melissa Fine
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