[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)]
[Notices]
[Pages 49824-49826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23911]



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DEPARTMENT OF AGRICULTURE
Food and Consumer Service


Public Notification That Several Products Are Now Excluded From 
the ``Soda Water'' and ``Certain Candies'' Category of ``Foods of 
Minimal Nutritional Value''

AGENCY: Food and Consumer Service, USDA.

ACTION: Notice.

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SUMMARY: This notice serves to inform the public that Canadian Pure 
Beverage Distributing, Inc., Knudsen and Sons, 

[[Page 49825]]
Inc. and Farley's Foods U.S.A. have petitioned the Food and Consumer 
Service (FCS) to exempt products from the ``Categories of Foods of 
Minimal Nutritional Value'' under the National School Lunch Program and 
the School Breakfast Program. Based upon data furnished by the 
manufacturers, FCS has determined that these products should not be 
classified as foods of minimal nutritional value. The petitioners have 
been notified of this determination in writing and that FCS does not 
prohibit the sale of the products in school food service areas during 
breakfast or lunch period.

DATES: The effective dates of this Notice are October 20, 1993 for 
Canadian Pure Beverage Distributing, Inc., June 27, 1994 for Knudsen 
and Sons, Inc., and March 31, 1995 for Farley's Foods U.S.A. This 
corresponds with the dates the companies were notified of approval.

FOR FURTHER INFORMATION CONTACT: Ms. Cynthia H. Ford, Chief, Technical 
Assistance Branch, Nutrition and Technical Services Division, Food and 
Consumer Service, 3101 Park Center Drive, Room 607, Alexandria, 
Virginia, 22302, or by telephone at (703) 305-2556.

SUPPLEMENTARY INFORMATION: The National School Lunch Program and the 
School Breakfast Program are listed in the Catalog of Federal Domestic 
Assistance under No. 10.555 and under No. 10.553, respectively, and are 
thereby subject to the provisions of Executive Order 12372, which 
requires intergovernmental consultation with State and local officials 
(7 CFR part 3015, subpart V, and the final rule-related Notice 
published June 24, 1983 (48 FR 29114)).
    This action is not a rule as defined by the Regulatory Flexibility 
Act (5 U.S.C. 601-612) and thus is exempt from the provisions of that 
Act.
    This Notice imposes no new reporting or recordkeeping provisions 
that are subject to Office of Management and Budget review in 
accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 3507).

Background

    On January 29, 1980, the Department published final regulations (45 
FR 6758 at 6772), commonly known as the competitive foods rule, which 
identified categories of foods of minimal nutritional value. These 
foods were identified as soda water, water ices, chewing gum and 
certain candies (hard candies, jellies and gums, marshmallow candies, 
fondants, licorice, spun candy, and candy coated popcorn). The sale of 
such foods is prohibited in food service areas during breakfast and 
lunch periods by the regulations governing the School Breakfast 
Program, 7 CFR 220.12(a), and the National School Lunch Program, 7 CFR 
210.11(b).
    As defined in 7 CFR 210.11(a)(2) and 220.2(i-1), foods of minimal 
nutritional value provide less than five percent of the Reference Daily 
Intake (RDI) for each of eight specified nutrients per 100 calories and 
less than five percent of the RDI for each of the eight specified 
nutrients per serving. In the case of artificially sweetened foods, 
only the ``per serving'' measure applies. The eight specified nutrients 
are: protein, vitamin A, vitamin C, niacin, riboflavin, thiamine, 
calcium, and iron. The competitive foods rule has been amended many 
times but it still retains its original intention of keeping foods of 
minimal nutritional value from competing with foods served in school 
lunch and breakfast program service areas. Under 7 CFR 220.12(a) and 
210.11(b) school food authorities have the right to restrict and even 
forbid the sale of foods that would otherwise be permitted under the 
competitive foods rule. If competitive foods are allowed to be sold in 
food service areas during breakfast and lunch periods, all income from 
such sales must accrue to the benefit of the nonprofit school food 
service or the school or student organization approved by the school.
    The competitive foods rule contains provisions for amending 
Appendix B--Categories of Foods of Minimal Nutritional Value, of Part 
210, National School Lunch Program, and Part 220, School Breakfast 
Program, to exempt an individual food from a category of foods of 
minimal nutritional value as listed in Appendix B or to add a 
particular category of food to Appendix B as a category of foods of 
minimal nutritional value. These provisions are found in section 
210.11(a)(2) and in Part 210, Appendix B, (for the National School 
Lunch Program) and in section 220.12(b) (for the School Breakfast 
Program). The public may petition FCS to request that an exception from 
or an addition to the food categories listed in Appendix B be made. A 
schedule for petitioners regarding submission deadlines is furnished in 
Part 210, Appendix B(b)(3), and Part 220, Appendix B. The petition must 
include a statement of the percent of the RDI for the eight nutrients 
listed in sections 210.11(a)(2) and 220.2(i-1) that the food provides 
per serving and per 100 calories and the petitioner's source of this 
information. FCS determines whether or not the individual food is a 
food of minimal nutritional value and informs the petitioner in writing 
of such determination, and the public by notice in the Federal 
Register. In determining whether a food is a food of minimal 
nutritional value, discrete nutrients added to the food are not taken 
into account.
    The Department received petitions from Canadian Pure Beverage 
Distributing, Inc., dated July 15, 1993, Knudsen and Sons, Inc., dated 
May 29, 1994, and Farley's Foods U.S.A., dated March 21, 1995, with all 
necessary petition components. Both per serving and per 100 calorie 
nutrient analysis data show that one of the eight nutrients (Vitamin C) 
is greater than 5% of the RDI in each of the products. Therefore, the 
following products are exempt from the identified category of ``Foods 
of Minimal Nutritional Value'' (7 CFR Part 210, Appendix B(a) and Part 
220, Appendix B): ``Sparkling Spring Water Beverage with natural 
strawberry flavour,'' ``Sparkling Spring Water Beverage with natural 
black cherry flavour,'' ``Sparkling Spring Water Beverage with natural 
raspberry flavour,'' and ``Sparkling Spring Water Beverage with natural 
peach and orange flavour'' produced by Canadian Pure Beverage 
Distributing, Inc. Likewise, the FJ FIZZ brand ``Black Cherry,'' 
``Strawberry,'' ``Orange,'' ``Cherry Cola,'' ``Grape,'' and ``Red 
Raspberry'' produced by Knudsen & Sons, Inc. are exempt from the ``soda 
water'' category. ``The Roll (SLP)'' and ``Fruit Funnies (SLP)'' 
produced by Farley's Foods U.S.A. are exempt from the ``jellies and 
gums'' section of the ``certain candies'' category.
    Program regulations do not prohibit the sale of these products in a 
school food service area during breakfast or lunch period.
    In compliance with petitioning schedules, the companies were 
notified in writing of this decision and this Notice documents public 
announcement.
    Although required by the regulations to publish this notice, the 
Department emphasizes that such notification is not to be construed as 
either approval or endorsement of any food product or manufacturer 
identified in this notice. Nor is it certification that such food 
product has a significant nutritional value. Nor in any way is it 
guidance or encouragement to State Agencies and School Food Authorities 
concerning their possible purchase of any class or type of food product 
identified in this notice.


[[Page 49826]]

    Dated: September 14, 1995.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 95-23911 Filed 9-26-95; 8:45 am]
BILLING CODE 3410-30-U