Sen. Shelley Moore Capito, R-W.Va., is still looking for answers on the recent baby formula shortage, and a plan to make sure it doesn’t happen again.

Capito and her Republican colleagues, led by Sen. Deb Fischer, R-Neb., who is a member of the Senate Agriculture Committee, sent a letter to the Government Accountability Office (GAO) seeking answers on recent baby formula shortages.

They also asked for an investigation into the impact sole-source contracts in the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) program may have had.

The share of formula in the United States that is consumed by WIC infants is estimated to be over 50 percent.

“We have heard concerns expressed about the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) impact on the infant formula market, in particular in the light of current supply shortages,” the senators wrote. “The shutdown of the Abbott manufacturing plant led to foreseeable shortages of certain infant formula products for WIC participants, but also affects non-WIC formula buyers, retailers and grocers.”

Earlier this year, grocery shelves were often empty of formula caused by a supply chain problem and a recall related to Abbott infant formula (Similac), temporarily shutting down the plant that produces 25 percent of formula.

But the sole-source contracts remain an issue.

“To address the high cost of infant formula under WIC, states were required to pursue cost containment systems in 1989 under the Child Nutrition and WIC Reauthorization Act,” the letter said. “As a result, all states pursued sole-source contracts with infant formula manufacturers, who then sends rebates to the WIC state agency. These rebates have saved the WIC program between $1 to $2 billion annually. While these savings have allowed the WIC program to stretch funding farther, some stakeholders have expressed concerns with unintended consequences these contracts have on the market.”

The senators requested a GAO analysis that answers the following questions: 

  1. How did the price of infant formula change for both WIC and non-WIC customers after the introduction of sole-source rebates?
  2. How did particular market characteristics such as market concentration, methods of marketing, and barriers to entry impact the size of the rebates offered by manufacturers?
  3. How have sole-source contracting and minimum infant formula stocking requirements impacted independent and small retailers?
  4. What legislative or regulatory changes could improve sole-source contracting? What other measures could address cost containment of infant formula under WIC?

Capito has been on the forefront of investigating the baby formula shortage.

Earlier this year, she co-sponsored the Access to Baby Formula Act, which was signed into law on May 21, 2022. The legislation helps ensure families who rely on the WIC program can buy affordable formula.

Capito also co-sponsored the Urgently Feeding America’s Babies Act, which would direct the administration to invoke the Defense Production Act and establish a process to approve the sale of European-produced infant formulas to address the shortage.

In May, Capito, along with Sen. Roger Marshall, R-Kansas, led a letter to the U.S. Food and Drug Administration (FDA) about its inadequate investigation into Abbott Nutrition’s Michigan manufacturing facility and the agency’s failure to mitigate the nationwide baby formula shortage.

In September, Senators Capito, Marshall, and John Boozman, R-Ark., led a follow-up letter to the FDA questioning why the agency had not fulfilled its commitment to approve applications for more formula products to restore baby formula supplies or to prevent another shortage from occurring.