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There has been some dramatic reporting about the chaotic market for PPE, masks, ventilators, and other supplies needed by hospitals dealing with COVID-19. I have been trying, mostly without success, to get a clearer picture of the legal ins and outs of what is going on. 1/
The federal government is seizing some stockpiles on the theory that the owners are engaged in price gouging. This press release notes that it will pay the owners "fair market value."
https://www.hhs.gov/about/news/2020/04/02/doj-and-hhs-partner-to-distribute-more-than-half-a-million-medical-supplies-confiscated-from-price-gougers.html 2/
https://www.hhs.gov/about/news/2020/04/02/doj-and-hhs-partner-to-distribute-more-than-half-a-million-medical-supplies-confiscated-from-price-gougers.html 2/
Other cases appear to be pursuant to the Defense Production Act, under which the federal government will force suppliers to sell to it first.
https://khn.org/news/trump-administration-uses-wartime-powers-to-be-first-in-line-on-medical-supplies-ppe/ 3/
https://khn.org/news/trump-administration-uses-wartime-powers-to-be-first-in-line-on-medical-supplies-ppe/ 3/
Some of the most dramatic stories, however, involve seizures of shipments to states, hospitals, or foreign buyers. The legal basis and the details are unclear.
https://www.wcvb.com/article/3-million-masks-ordered-by-massachusetts-were-confiscated-in-port-of-new-york/32021700
https://barbadostoday.bb/2020/04/05/ventilators-destined-for-barbados-seized-by-u-s/ 4/
https://www.wcvb.com/article/3-million-masks-ordered-by-massachusetts-were-confiscated-in-port-of-new-york/32021700
https://barbadostoday.bb/2020/04/05/ventilators-destined-for-barbados-seized-by-u-s/ 4/
The jurisdictional angles are also complex and unclear, since the US may or may not be seizing shipments abroad and also trying to stop some exports from the US:
https://www.politico.com/news/2020/04/03/ppe-world-supplies-coronavirus-163955
https://www.cnbc.com/2020/04/03/coronavirus-trump-to-ban-export-of-protective-gear-after-slamming-3m.html
https://www.forbes.com/sites/daviddisalvo/2020/03/30/i-spent-a-day-in-the-coronavirus-driven-feeding-frenzy-of-n95-mask-sellers-and-buyers-and-this-is-what-i-learned/#297ee7f956d4 5/
https://www.politico.com/news/2020/04/03/ppe-world-supplies-coronavirus-163955
https://www.cnbc.com/2020/04/03/coronavirus-trump-to-ban-export-of-protective-gear-after-slamming-3m.html
https://www.forbes.com/sites/daviddisalvo/2020/03/30/i-spent-a-day-in-the-coronavirus-driven-feeding-frenzy-of-n95-mask-sellers-and-buyers-and-this-is-what-i-learned/#297ee7f956d4 5/
Somewhat in parallel, some states are seizing (or at least issuing orders to seize) equipment such as ventilators:
https://www.bloomberg.com/news/articles/2020-04-03/n-y-reports-most-deaths-in-day-coronavirus-cases-top-100-000 6/
https://www.bloomberg.com/news/articles/2020-04-03/n-y-reports-most-deaths-in-day-coronavirus-cases-top-100-000 6/
As the last tweet suggests, there may also be substantial gaps betweeen the headlines ("Trump invokes DPA"; "NY seizes ventilators") and what is happening on the ground once you dig into the details. 7/
In short, the picture is very complicated and I have neither seen any comprehensive reporting nor been able to put the whole puzzle together myself. 8/
I am trying to figure out:
(a) What kinds of seizures are actually taking place.
(b) What legal authorities are being used to justify the different seizures.
(c) Whether and how the owners of the seized equipment are to be compensated. … 9/
(a) What kinds of seizures are actually taking place.
(b) What legal authorities are being used to justify the different seizures.
(c) Whether and how the owners of the seized equipment are to be compensated. … 9/
(d) How the seized equipment is reallocated and/or sold.
(e) What policies the federal and state governments are pursuing with these seizures.
(f) How the different jurisdictions are (or are not) avoiding interfering with each others' efforts. 10/
(e) What policies the federal and state governments are pursuing with these seizures.
(f) How the different jurisdictions are (or are not) avoiding interfering with each others' efforts. 10/
I would be grateful for pointers to good big-picture reporting on these questions or any readings on how to think about this whole cluster of policy and legal issues. 11/
In the meantime, I would suggest that the issue of PPE and ventilator seizures require more attention and less speculation. I have seen a lot of claims that go well beyond what the facts warrant, and some that are contradicted by what is actually known. 12/12
