3M factories in South Dakota and Nebraska are now producing 35 million N95 masks a month, 90 percent of which are designated for health-care workers after a change in law last week eliminated the threat of lawsuits from such sales.
The other 10 percent will go to industrial workers who are “also critical in this pandemic,” in sectors including energy, food and pharmaceuticals, 3M Chairman and CEO Mike Roman said in a statement Sunday.
The change signed into law Wednesday protects manufacturers from liability when selling N95 masks to the health-care sector that were designed for industrial use. Both types filter at least 95 percent of airborne particles, but they can vary in design and fit, according to the Centers for Disease Control and Prevention.
The liability protection covers certain types of disposable N95 masks designed for industrial use, and some that are past their expiration date, if they’ve been safely stored and are in good condition, the Food and Drug Administration said in a March 2 letter. The FDA said the benefits of using such masks, also known as respirators, outweighed the risks, given the widespread shortages in hospitals.
“Based on the totality of scientific evidence available to FDA, it is reasonable to believe that the authorized respirators may be effective in preventing [health-care worker] exposure to pathogenic biological airborne particulates” amid shortages, the FDA said. It added that “the known and potential benefits of the authorized respirators … outweigh the known and potential risks of such product.”
The letter did not elaborate on the benefits and risks.
Previously, 3M’s U.S. factories sold the bulk of their masks to industrial customers, with only about 14 percent going to health-care workers, Vice President Pence said last week. Masks for health-care workers typically have to be manufactured on production lines certified by the Food and Drug Administration. Masks for construction workers and other industrial users are approved by the National Institute for Occupational Safety and Health, or NIOSH.
3M also manufactures the masks in Europe, Asia and Latin America. “Our products are being similarly deployed to support the COVID-19 response in those respective regions,” Roman said.
New York Gov. Andrew M. Cuomo (D) on Sunday urged the federal government to take control of medical supply acquisition and distribution, saying states were driving up prices by competing with each other for masks and other gear.
“The states simply cannot manage it,” Cuomo said at a daily briefing. “In some ways we are savaging other states. I’m trying to buy masks. I'm competing with California and Illinois and Florida. And that’s not the way it should be.
“Price gouging is a tremendous problem and it’s only getting worse. There are masks that we were paying 85 cents for. We’re now paying $7. Why? Because I’m competing against every other state and in some cases against other countries around the world,” he said, without naming the mask suppliers.
“I will contract with a company for 1,000 masks. They’ll call back 20 minutes later and say the price just went up because they had a better offer,” Cuomo said.
3M spokeswoman Jennifer Ehrlich said the company “has not changed the prices it charges for 3M respirators as a result of the covid-19 outbreak, but the company cannot control the prices dealers or retailers charge for 3M respirators.” She did not provide details of 3M’s pricing.
Illinois Gov. J.B. Pritzker (D) also called the competitive buying among states a problem in an interview with CNN on Sunday, describing it as the “wild West.”
Cuomo urged the federal government to use the Defense Production Act to “order factories to manufacture masks, gowns and ventilators,” and to distribute the goods in an orderly fashion.
President Trump has given mixed messages in recent days about whether he is invoking the Defense Production Act, at times saying he has and at others saying he hasn’t. He’s given a variety of reasons for not doing so, including calling the acquisition of medical supplies a job for governors.
On Sunday, Trump and his trade adviser, Peter Navarro, told a briefing they didn’t see a need to force companies to produce medical supplies under the Defense Production Act because some were increasing production voluntarily. “We’re getting what we need without putting the heavy hand of government down,” Navarro said.