In July I wrote that I had bought Congress a t-shirt — one for every member. The shirts arrived in August. This month they are being hand-delivered, and I have narrowed the aim.
Seventy-seven offices are getting two shirts each, carried in by hand: all 54 members of the House Energy and Commerce Committee and all 23 members of the Senate Committee on Health, Education, Labor, and Pensions. Those are the two committees with jurisdiction over the FDA, and between them they hold every procedural key to the only bill that would fix this. Everyone else in Congress still gets one. These offices get two, and they get a person at the counter rather than a package on a mail cart.
The timing is deliberate. The House came back for a single week on August 31 and went home again for Labor Day. The Senate has been out since the first week of August. Both chambers return Monday, September 14. The shirts land in the week they walk back in.
I have written each of those committees twice. Energy and Commerce got a letter on June 23 supporting H.R. 7867, with the statements and photographs of fourteen families attached, and a follow-up on August 28. HELP got a letter on June 29 and a follow-up on August 28. Four letters. No reply to any of them. I have also written Secretary Kennedy, and when Chairman Cassidy demanded answers from Nara and ByHeart I gave him full credit for it in public. None of it has produced a markup.
What changed between the first letters and the second ones is that the argument stopped being an argument. On August 27 the CDC closed the Nara Organics investigation and did it without a hedge, finding that the formula was contaminated with Clostridium botulinum and made infants sick — where its earlier update had said only that the formula might be contaminated. Then came the part that should have moved the calendar. Whole genome sequencing linked a patient sample from the Nara outbreak to a patient sample, product samples and an ingredient sample collected during the 2025 ByHeart investigation. The same organism, in a baby fed one brand and, in the product, and the ingredient of the other.
In June I told both committees that the contamination had not struck two unrelated companies by chance, that it had traveled through one shared supply stream the system missed twice. That was reasoning from a traceback and a trade-press report. It is no longer reasoning. A strain does not move between two babies who never drank the same product by accident. It moves through the thing they shared, and the only thing these two shared was an ingredient — milk supplied by Organic West Milk, spray-dried by Dairy Farmers of America.
Forty-eight infants in the ByHeart outbreak, across seventeen states, the largest infant botulism outbreak in American history. Four in the Nara outbreak, in California, Pennsylvania and Washington, with onsets between April 20 and May 31 of this year. Fifty-two babies hospitalized, many of them on ventilators, each one treated with BabyBIG antitoxin that the State of California prices at $69,300 a dose.
And the rule has not moved an inch. Federal regulation still requires powdered infant formula manufacturers to test finished product for exactly two organisms — Salmonella and Cronobacter. That is 21 C.F.R. § 106.55, and C. botulinum is not on it. It was not on it in November 2025. It was not on it this spring. It is not on it this morning. The FDA named the organism itself, by genus and species, in a March 8, 2023 Call-to-Action letter to the entire powdered formula industry — three and a half years ago, and more than two years before the first ByHeart baby got sick. The hazard was on the government’s own record. The rule never caught up to it.
H.R. 7867 fixes the part a statute can fix. It puts C. botulinum on the required testing list, mandates environmental monitoring inside the plants where this powder is made and holds foreign manufacturers to American standards. It is bipartisan. The Health Subcommittee held its hearing on April 29. It has sat in Energy and Commerce ever since, waiting on a markup nobody has scheduled. The Senate passed S. 272 the same day that hearing happened — 22 to 0 in committee, unanimous consent on the floor — which tells you this is not a hard vote once somebody puts it on the calendar. S. 272 is the narrower bill. It reaches the organisms already on the list and does not reach the one that paralyzed these fifty-two children.
So, the shirts go with four asks, the same four in both buildings. Mark up H.R. 7867 and report it favorably. Hold the oversight hearing, with the FDA, Dairy Farmers of America, Organic West Milk, Nara Organics and ByHeart at the table, because the questions are sharper now that there is a laboratory result to ask about. Put the parents at the witness table — they have written to you already, and they are willing to come and say it in person. And put a written question to the FDA with a deadline: what has the root cause investigation found, does the agency intend to require this testing by regulation, and if so, when. A date certain would tell you whether legislation is necessary or merely useful. The absence of one would tell you something too.
A t-shirt in a plastic bottle will not produce a markup. But it is small, it is strange, it does not throw away easily, and it says the whole argument in one line. They will be sitting on a desk in Rayburn and in Dirksen next week, in every office that can put this bill on a calendar. Somebody is going to unroll one and read it out loud.
I have been suing companies since 1993, and I would close the doors tomorrow if Congress made this product safe enough that nobody needed me. Fifty-two families already know what the sequencing means. They would like to know that Congress does too.
The four letters
https://www.marlerblog.com/files/2026/08/HR_7867_Support_Letter_6_23_26_WDM_FINAL.pdf
Letter to the House Committee on Energy and Commerce, June 23, 2026, with Appendix A — statements and photographs of fourteen families.
https://www.marlerblog.com/files/2026/08/Marler_Senate_HELP_Letter_Letterhead.pdf
Letter to the Senate Committee on Health, Education, Labor, and Pensions, June 29, 2026.
https://www.marlerblog.com/files/2026/08/HR7867_Follow_Up_Letter_8-28-26.pdf
Follow-up letter to the House Committee on Energy and Commerce, August 28, 2026.
https://www.marlerblog.com/files/2026/08/Senate_HELP_Follow-Up_Letter_8_28_26_WDM.pdf
Follow-up letter to the Senate Committee on Health, Education, Labor, and Pensions, August 28, 2026.
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