US Homeland Security clarifies dietary supplements as "essential business"

Cybersecurity and Infrastructure Security Agency has updated the Essential Critical Infrastructure Workers but said that this is still "advisory in nature" and "is not ... a federal directive or standard"

As reported in an AHPA Update distributed on Monday 23 March 2020, Federal, state, and local governments making stay-at-home recommendations or issuing shelter-in-place orders in response to COVID-19 have identified certain industries as “essential businesses” or “critical infrastructure” whose employees and operations can be considered exempt from these recommendations and directives.

That previous AHPA Update referenced guidance issued on 19 March by the Cybersecurity and Infrastructure Security Agency (CISA) within DHS that identified essential critical infrastructure workers. That guidance has now been revised, and is available as Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response, Version 2.0 (March 28, 2020).

The revised guidance provides numerous and significant additional details in identifying essential critical infrastructure workers and sectors in several categories, including, among others, healthcare, law enforcement, transportation, and food and agriculture. Under the revised guidance, such workers now include, among others:

  • Manufacturer workers for health manufacturing (including biotechnology companies), materials and parts suppliers, logistics and warehouse operators, distributors of medical equipment (including those who test and repair), personal protective equipment (PPE), isolation barriers, medical gases, pharmaceuticals (including materials used in radioactive drugs), dietary supplements, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitising, disinfecting or sterilisation supplies, and tissue and paper towel products.
  • Workers supporting groceries, pharmacies, convenience stores, and other retail (including unattended and vending) that sells human food, animal/pet food and pet supply, and beverage products, including retail customer support service and information technology support staff necessary for online orders, pickup and delivery.
  • Food manufacturer employees and their supplier employees—to include those employed in food ingredient production and processing facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging.
  • Employees and firms supporting the distribution of food, feed, and beverage and ingredients used in these products, including warehouse workers, vendor-managed inventory controllers and blockchain managers.
  • Workers in animal diagnostic and food testing laboratories in private industries and in institutions of higher education.
  • Workers supporting the sanitation and pest control of all food manufacturing processes and operations from wholesale to retail.

Under the Federal Food, Drug, and Cosmetic Act and various state-law counterparts, dietary supplements qualify as “food,” which in turn means that all of the above references to “food” apply to dietary supplement products.

CISA continues to identify the above-cited document as “advisory in nature” and notes it “is not ... a federal directive or standard.” CISA also describes the guidance as “…not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions,” and states, “Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.”

Michael McGuffin, President of American Herbal Products Association, said: "AHPA appreciates that dietary supplement workers are now specifically identified as ‘essential critical infrastructure' in this latest guidance from the Department of Homeland Security."

Companies and workers should, therefore, check state and local recommendations and directives in making status determinations for operations that qualify as essential critical infrastructure under this federal guidance.

Companies