Last week the House approved the Biden administration’s Build Back Better reconciliation package on a largely party-line vote. One Democrat crossed the aisle to join all Republican House members in opposing the legislation. The package now moves to the Senate for consideration, which is expected to make changes to the bill over the next few weeks.

As we head into the Thanksgiving holiday week, Congress still faces a December 3 government funding deadline and must raise the debt ceiling by mid-December. We are expecting yet another continuing resolution until December 17 or longer, and a debt limit extension – just unclear how that will be done.

Last Friday evening, the Fifth Circuit Court of Appeals granted a stay on the U.S. Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing. In the 22-page opinion, the Court reaffirmed the administrative stay that was previously issued and indicated that the order applies “with equal force to all related motions consolidated into the case,” including FMI’s challenge. The Fifth Circuit order bars OSHA from taking any steps to implement or enforce the ETS, and OSHA has in fact suspended its activities related to the implementation and enforcement of the ETS, pending future developments in the litigation.

While the stay remains in effect for now, please be aware that as expected, all the cases challenging the ETS that have been filed around the country have now been consolidated into one challenge. We learned earlier this week that the consolidated challenge will be heard by the Sixth Circuit Court of Appeals. The order can be found here. We will learn more in the coming days regarding the government’s next steps, but this appears to be a positive development for now. We will provide new updates to the litigation as we learn them.

While OSHA posted a statement on its website stating that as of the November 12 stay it has suspended activates related to implementation and enforcement of the rule, Department of Labor Secretary Marty Walsh issued a ratification of the rule in the Federal Register this week. FMI is actively preparing public comments for submission. The current deadline for public comments is December 6.

Republican Senators and a majority of Republican members of the House of Representatives joined in sponsored resolutions filed this week to roll back the ETS rule under the Congressional Review Act (CRA). A CRA resolution is a procedural way Congress can act to nullify a federal regulation. The Senate resolution (S.J.Res. 29) is being led by Senator Mike Braun (R-IN) and the House resolution (H.J.Res. 65) is sponsored by Representative Fred Keller (R-PA-12). While a CRA only requires a simple majority in both houses of Congress to pass, action is rarely successful and passage of the ETS CRA is seen as a longshot given the current Democratic majorities.

Last Friday, the FDA announced that it has authorized Pfizer and Moderna COVID-19 booster shots for all individuals 18 years and older, at least six months after completion of the primary vaccination series of either the Moderna or Pfizer vaccines or at least two months after completion of primary vaccination with J&J vaccine. Following FDA’s authorization, the CDC’s vaccine advisory committee voted to recommend the booster shots for all adults, and CDC Director Rochelle Walensky is now expected to formally approve the booster shot recommendations. Currently, the only Americans who are technically eligible to receive the Pfizer and Moderna boosters are people 65 and older, adults at higher risk of severe illness because of underlying health conditions and certain frontline essential workers. However, several states have already expanded booster eligibility to include all adults, so today’s likely expansion of federal recommendations should help to reduce confusion nationwide.

Pfizer is requesting FDA authorization for its pill to treat COVID-19. The ‘antiviral’ pill is designed to stop the virus’ advance inside the body but would not protect people from getting COVID-19 in the first place. According to its clinical trials, the drug reduces the risk of hospitalization or death by 89 percent. Pfizer is the second company to seek authorization for an antiviral COVID pill, following an application by Merck.

On Thursday, the Federal Trade Commission (FTC) held an open forum and voted on a motion to conduct a study on retail supply chain disruption. The study, which comes under the FTC’s 6(b) Orders authorization, will include a select number of “large retailers and consumer goods suppliers to study the impact on competition of ongoing supply chain disruptions and gather information from other suppliers and retailers on the issue.” The FTC further noted that “[t]he study will focus on why these disruptions occur, whether they are leading to specific bottlenecks, shortages, anticompetitive practices, or contributing to rising consumer prices.”

The open forum held prior to the Commissioners’ consideration of a motion on the study included brief remarks from small grocery retailers and other stakeholders. The motion voted on unanimously by the Commissioners called for perfecting the study parameters to expeditiously gather input on the matter. The Commissioner will meet on November 24 to vote on the 6(b) Orders.

Legislation Being Developed to Prevent PFAS in Food Packaging:

Rep. Peter Meijer’s (R-MI) office reached out to share that they were considering legislation along with others to prevent the intentional inclusion of PFAS in food packaging. A number of questions have surfaced regarding this. Do you you have any concerns around this effort on human food packaging and separately, do you have any concerns about restrictions of this type for pet food packaging? If a company has existing products in the marketplace, but have already made the change to PFAS-free packaging, how long would be needed to allow those products in commerce to be sold and existing packaging to be utilized?

This is similar to legislation that has been passed in some states. In 2021, legislation was enacted in California, taking effect January 1, 2023, that disallows any person from distributing, selling, or offering for sale in the state any food packaging that contains regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS. The bill would require a manufacturer to use the least toxic alternative when replacing PFAS chemicals. The measure defines “food packaging,” in part, to mean a nondurable package, packaging component, or food service ware that is comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers.