Dietary supplement, other herbal product, and cannabis operations identified as “essential businesses” and “critical infrastructure”

Dietary supplement, other herbal product, and cannabis operations identified as “essential businesses” and “critical infrastructure”

Designation implied by numerous regulatory agencies; explicit in California

Published: Monday, March 23, 2020

Federal, state, and local governments’ actions to address the novel coronavirus and COVID-19 have consistently included recommendations promoting or directives requiring social distancing as a key protective measure to minimize community spread of this disease. In making stay-at-home recommendations or issuing shelter-in-place orders, health agencies and other official bodies have identified certain industries as “essential businesses” or “critical infrastructure” whose employees and operations are (or should be) exempt from these recommendations and directives.

Issued by the White House on March 16, 2020, The President’s Coronavirus Guidelines for America went further than exempting such critical businesses, stating that those who work in a critical infrastructure industry, as defined by the Department of Homeland Security (DHS), “have a special responsibility” to maintain normal work schedules. The guidelines identify healthcare services and the pharmaceutical and food supply as examples of such critical infrastructure industries.

The Cybersecurity and Infrastructure Security Agency (CISA) within DHS subsequently issued Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response. This document identifies essential critical infrastructure workers and sectors in several categories, including, among others, healthcare, law enforcement, transportation, and food and agriculture. Of most relevance to the majority of AHPA’s members, the food and agriculture category includes as essential:

  • Workers supporting groceries, pharmacies and other retail that sells food and beverage products;
  • Food manufacturer employees and their supplier employees;
  • Employees and firms supporting food, feed, and beverage distribution, including warehouse workers;
  • Workers in food testing labs in private industries and in institutions of higher education; and
  • Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products.

Relevant to each of these references to food products, food manufacturers, food distribution and warehouse operations, and food testing labs, AHPA notes that dietary supplements qualify as “food” under the Federal Food, Drug, and Cosmetic Act.

The above-cited CISA document identifies its list of essential critical infrastructure workers and sectors as “advisory in nature” and notes it “is not ... a federal directive or standard in and of itself.” 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.

In reviewing several state and local directives, however, it appears that state and local governments’ approaches generally align with or adopt CISA’s guidance.1 For example, the Shelter In Place order issued by the City and County of San Francisco (California) on March 16, 2020, created several exceptions, including for individuals who “perform work providing essential products and services at an Essential Business.” The order defines “Essential Business” to include, in relevant part from AHPA’s members’ perspective: “…[E]stablishments engaged in the retail sale of [food] and any other household consumer products (such as cleaning and personal care products),” including “stores that sell groceries and also sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences”; “Food cultivation, including farming, livestock, and fishing”; “Businesses that supply other essential businesses with the support or supplies necessary to operate”; “Businesses providing mailing and shipping services, including post office boxes”; and “Businesses that ship or deliver groceries, food, goods or services directly to residences.” A similar emergency order was issued on March 19, 2020, by the mayor of Miami-Dade County (Florida) with the exact same definition for an “Essential Business.” AHPA has not reviewed all such recommendations and directives but understands that some coordination is occurring among state and local governments throughout the country.

The most recently issued state document to come to AHPA’s attention was posted on Friday March 20, 2020, by the California State Public Health Office. It defines “Essential Critical Infrastructure Workers” in much the same manner as described above. Of particular interest to AHPA and its members, California has expressly designated “[w]orkers supporting cannabis2 retail and dietary supplement retail” as part of the “Essential Workforce.”

AHPA strongly recommends that companies that determine their status as an essential business and so maintain operations take appropriate measures to protect employees. Relevant guidance is available at the websites of the Centers for Disease Control (CDC), the Occupational Safety and Health Administration (OSHA), and the Food and Drug Administration (FDA).

For more information and guidance on how companies in the food and supplement industry can deal with the extraordinary circumstances presented by the novel coronavirus and COVID-19 you can visit the AHPA COVID-19 Information & Resources Web Center or send an email to contact@ahpa.org.

AHPA will host a COVID-19 webinar on Thursday March 26, 2020, at 1:00-3:00 pm EDT to address numerous issues that members have identified as relevant to their operations and business decisions during this public health crisis. Click here to register.

  1. AHPA has been informed that the State of Pennsylvania and some individual cities, including San Francisco and Miami, have asked some health food stores, specifically those that sell only dietary supplements and little or no conventional foods, to close. AHPA continues to coordinate with other trade associations for the food, supplement, and healthcare industries to seek consistent treatment of these businesses as essential infrastructure on a country-wide basis.
  2. An Emergency Order issued on March 20, 2020, by the Governor of Illinois identifies “licensed medical cannabis dispensaries and licensed cannabis cultivation centers” as “Healthcare and Public Health Operations” such that individuals in that State “may leave their residence to work for or obtain services [from them].”
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