Providing baby formula for babies held at the border is a legal requirement

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A 1997 legal settlement requires border officials to provide adequate food and water, among other things, to children who have been detained. For infants, that can mean providing baby formula.

The Biden administration would be breaking the law if it did not have a supply of formula and other food for people detained in government facilities.

By Madison Czopek

As frightened parents grapple with the country’s ongoing shortage of baby formula, some politicians are criticizing the Biden administration, claiming it’s prioritizing immigrant children detained at the border over American families.

The narrative took off after U.S. Rep. Kat Cammack, R-Fla., shared a side-by-side photo comparison of a scene from the southwest border and a U.S. grocery store.

"The first photo is from this morning at the Ursula Processing Center at the U.S. border. Shelves and pallets packed with baby formula," Cammack tweeted on May 11. "The second is from a shelf right here at home. Formula is scarce. This is what America last looks like."

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A border patrol agent in Texas sent her the photo, Cammack said. She said the agent told her that his facility had been receiving pallets of formula for immigrants who crossed into the U.S. illegally.

Before long, other Republicans and news outlets like Fox News picked up the story.

In a joint statement on May 12, Texas Gov. Greg Abbott, a Republican, and National Border Patrol Council President Brandon Judd took aim at President Joe Biden’s policies.

"While mothers and fathers stare at empty grocery store shelves in a panic, the Biden administration is happy to provide baby formula to illegal immigrants coming across our southern border," read the statement. "This is yet another one in a long line of reckless, out-of-touch priorities from the Biden administration when it comes to securing our border and protecting Americans."

PolitiFact was unable to independently verify the authenticity of Cammack’s photo, and a spokesperson for U.S. Customs and Border Protection did not weigh in on that. It is also unclear when this formula was sent, how long it’s been there or how many people need it.

We don’t see a reason to doubt that the photo is real; what’s missing from this controversy is context.

Allen Orr, president of the American Immigration Lawyers Association, said that detention facilities regularly stockpile supplies.

"The formula is there because it’s always there," Orr said. Some states are struggling less with the formula shortage than others, he said. "Are they taking it, too? Or does it just happen to be there?"

What’s more, the Biden administration would be breaking the law if it did not have a supply of formula and other food for people detained in government facilities.

Flores settlement requirements for kids in custody

Central to this issue is the 1997 Flores settlement, an agreement that sets standards regarding when U.S. immigration officials can detain unaccompanied minors, how those minors must be treated, and how and when minors should be released from federal custody.

The settlement required officials to release children from detention without delay to a parent or legal guardian, an adult relative or a licensed juvenile program willing to accept custody. A minor can be detained temporarily if it is deemed necessary for the child’s safety or to ensure the child’s timely appearance before an immigration court, according to the agreement.

Since 1997, additional rulings by federal judges have interpreted the Flores settlement to mean "that all minors in detention — accompanied by their parents or not — cannot be held for more than 20 days," according to the Center for Immigration Studies, which favors reduced immigration.

When officials determine it is necessary to detain a child, however, the Flores settlement requires that minors be held "in facilities that are safe and sanitary."

The facility must provide food and drinking water, among other requirements.

For infants, that means officials must provide baby formula.

A 2015 U.S. Customs and Border Protection document about detention standards acknowledged this: "Food must be appropriate for at-risk detainees’ age and capabilities (such as formula and baby food)."

A Customs and Border Protection spokesperson provided a statement to PolitiFact that said the agency complies with regulations to make sure all migrants have their basic needs met. The spokesperson did not respond to specific questions about when or where the baby formula in Cammack’s photograph was purchased and stored.

Orr said the government is both morally and legally obligated to feed detained children, even during a formula shortage. He referenced both the Flores settlement and international human rights commitments.

"Anyone in a detention facility is afforded food," he said.

Trump and the Flores agreement

It’s worth mentioning that former President Donald Trump also followed the rules of the Flores agreement.

Trump fought to enact a rule that would have allowed indefinite detention of migrant children, effectively putting an end to the Flores agreement, but his effort was unsuccessful and the administration followed the Flores requirements, the Washington Post reported.

In one 2020 report about how the Trump administration struggled to manage the 2019 influx of migrants at the border, Department of Homeland Security officials said they "observed all Border Patrol stations had food, snacks, juice, and infant formula available for children."

We reached out to Cammack and Abbott for comment and did not hear back by deadline.

In a statement, Abbott said the Biden administration choosing to send baby formula to the border "is yet another one in a long line of reckless, out-of-touch priorities" on the border.

An unverified photo suggests that the Biden administration has shelves stocked with baby formula to feed infants at processing centers near the border amid a nationwide formula shortage.

What’s missing from claims like Abbott’s is that the Biden administration’s actions are in keeping with what previous presidents have done to comply with a federal settlement governing the detention of immigrant children.

The baby formula shortage continues to cause stress for many American families, but it does not release the government from its legal responsibility to provide adequate care and nutrition to the children in its custody.

The claim contains an element of truth but ignores critical facts that give a different impression. We rate it Mostly False.