[Federal Register Volume 61, Number 140 (Friday, July 19, 1996)]
[Rules and Regulations]
[Pages 37670-37672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18404]


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DEPARTMENT OF AGRICULTURE
Food and Consumer Service

7 CFR Parts 210 and 225

RIN 0584-AC04


Removal of the ``Cheese Alternate Products'' Specifications From 
the National School Lunch Program

AGENCY: Food and Consumer Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule eliminates the specifications governing the 
use of ``Cheese Alternate Products'' in the National School Lunch 
Program (NSLP). The removal of these specifications should enable the 
food industry more freedom to produce cheese substitute products for 
use in the NSLP while maintaining program nutrition standards through 
reliance on existing Food and Drug Administration rules.

EFFECTIVE DATE: July 19, 1996.

FOR FURTHER INFORMATION CONTACT:
Ms. Marion Hinners, (703) 305-2556.

SUPPLEMENTARY INFORMATION: 

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.

Regulatory Flexibility Act

    This final rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The 
Administrator of the Food and Consumer Service has determined that this 
final rule will not have a significant economic impact on a substantial 
number of small entities. There are currently fewer than ten companies 
participating in the Child Nutrition Programs (CNPs) affected by this 
regulation. In addition, the removal of this regulation is expected to 
reduce the regulatory burden on all companies producing a cheese 
alternate type product and allow the use of a wider variety of products 
than currently can be used in the CNPs.

Category of Federal Domestic Assistance

    The National School Lunch Program and the Summer Food Service 
Program for Children are listed in the Catalog of Federal Domestic 
Assistance under No. 10.555 and 10.559, respectively, and are subject 
to the provisions of Executive Order 12372 which requires 
intergovernmental consultation with State and local officials. (7 CFR 
part 3015, subpart V and final rule related notice at 48 FR 29112, June 
24, 1983.)

Executive Order 12778

    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This final rule is intended to have preemptive 
effect with respect to any State or local laws, regulations, or 
policies which conflict with its provisions or would otherwise impede 
its full implementation. This final rule is not intended to have 
retroactive effect unless specified in the Effective Date section of 
this preamble. Prior to any judicial challenge to the provisions of 
this final rule or the application of the provisions, all applicable 
administrative procedures must be exhausted.

Information Collection

    This final rule contains no new information collection requirements 
which are subject to review by the Office of Management and Budget 
under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).

Background

    Cheese alternates are used primarily as economical replacements for 
natural or processed cheese in the National School Lunch Program 
(NSLP). Cheese alternates are a class of products currently required to 
be made from conventional ingredients which must meet nutritional and 
physical specifications set forth in the NSLP regulations in 7 CFR part 
210, Appendix A--Alternate Foods for Meals (appendix A to part 210) in 
order to be used as a food component contributing to the NSLP meal 
patterns.
    The Department published a proposed rule to remove the ``Cheese 
Alternate Products'' specifications from the NSLP in the Federal 
Register on September 27, 1995 (60 FR 49807). The Department accepted 
comments on the proposal until November 13, 1995. One commenter 
requested an extension of the comment period. A subsequent Federal 
Register publication on November 27, 1995 (60 FR 58252) reopened the 
comment period until December 27, 1995.
    FCS received a total of 25 comments on the proposed rule. Five 
comments were from the state or federal government agencies, five were 
from School Food Authorities, six were from private companies and nine 
were from trade associations. Eighteen commenters were generally 
supportive of FCS proposals: five of those were from private industry 
and six from trade organizations. Seven commenters opposed or advocated 
major changes to the proposal. Of these seven, two were trade 
organizations for dairy interests and one was a private manufacturer.
    Commenters who supported the proposal cited positive changes 
including that the proposal would: (1) Allow use of alternate protein 
sources, (2) provide more flexibility in meeting the Dietary Guidelines 
for Americans, (3) reduce food costs, (4) increase the number of 
products available, (5) allow for more consistency between the food-
based and nutrient-based menu planning systems used in the NSLP, (6) 
increase availability of lower fat and lower saturated fat products, 
(7) reduce regulatory burden, (8) eliminate costly, lengthy product 
evaluations on the part of industry, (9) increase products for 
vegetarians and individuals with dairy product allergies, (10) allow 
for reduction in cholesterol and calories and, (11) allow for the 
protein digestibility-corrected amino acid score for assessing protein 
quality.
    The negative comments were varied. One of the government commenters 
was concerned about the nutritional impact

[[Page 37671]]

of this change, particularly the reduced zinc adsorption if more 
phytate-containing foods (e.g. soy-based cheese substitutes) were used. 
FCS does not anticipate that removal of the cheese alternate 
specifications will cause use of cheese substitutes to increase to the 
extent that the bioavailability of nutrients such as zinc will be 
compromised.
    A School Food Authority commented that the nutritional quality and 
physical characteristics of substitute cheese would be inferior to 
natural cheese and that a sodium level should be specified because 
cheese substitutes generally have a higher sodium level. Food and Drug 
Administration (FDA) labeling regulations (21 CFR 101.3) require 
products labeled as ``substitutes'' (e.g., cheese substitutes) to be 
``not nutritionally inferior'' to the product for which they substitute 
(e.g., cheese). As noted in the proposed rule, FCS is adding ``cheese 
substitutes'' to the Food Buying Guide for Child Nutrition Programs 
(FBG), Program Aid Number 1331. Schools and FCS use the FBG to 
determine what meal components are reimbursable for schools using food 
based menu planning. Thus the inclusion in the FBG of cheese 
substitutes should help insure that nutritional quality is maintained, 
since items labeled as cheese substitutes must be ``not nutritionally 
inferior'' to cheese. Moreover, section 9(f) of the National School 
Lunch Act (42 U.S.C. 1758(f)) requires that school meals meet the 
Dietary Guidelines for Americans (Dietary Guidelines), jointly 
published by the Department of Agriculture and the Department of Health 
and Human Services. The Dietary Guidelines provide for moderating salt 
and sodium intake, and schools are expected to comply. As has always 
been true, schools must make the final decision on what to buy based on 
good menu planning practices as well as flavor, functional 
characteristics, and student acceptance. Schools electing to use a 
higher sodium cheese substitute can, and should, reduce the sodium 
contributed to the meal from other sources.
    Trade association and private industry commenters generally agreed 
that FCS should eliminate the current requirement that cheese 
alternates must be used in combination with at least 50 percent natural 
cheese because there was no nutritional basis to keep the requirement. 
One School Food Authority thought this requirement should be retained 
to help maintain the nutritional integrity and physical properties of 
cheese substitutes. FCS believes that nutritional quality will be 
maintained by the FDA standard and that the physical properties will 
not vary appreciably from current cheese substitutes, since their 
marketplace acceptability is partly a function of these properties.
    One private industry commenter was against the proposal because of 
the possibility for abuse by manufacturers to supply inferior cheese 
products. FCS believes manufacturers will have no increased opportunity 
for abuse beyond their opportunity in the current approval system. As 
stated above, the nutritional integrity of a cheese substitute is 
maintained through compliance with FDA requirements and by inclusion of 
FDA labeled cheese substitutes in the FBG. Further, FCS believes that 
the functionality of cheese substitutes will also be maintained through 
marketplace pressures, because their acceptability is dependent upon 
their functional characteristics.
    Both trade association and private industry commenters thought that 
a protein quality requirement should be retained because FDA 
regulations prohibits a substitute from containing a lesser amount of 
protein while making no direct provisions for protein quality. Because 
of this concern, FCS contacted FDA early in the regulatory process for 
clarification of their regulation. In a letter to William E. Ludwig, 
the Administrator of FCS, Dr. F. Edward Scarbrough, the Director of the 
FDA's Office of Food Labeling, stated that: ``a substitute food must be 
able to support the same nutrition claims as the reference food, and 
since the protein claim for the reference food must include protein 
quality, the substitute food must also account for protein quality.'' 
Referring to FDA regulations, he went on to say ``the (FDA) believes 
that (21 CFR) 101.3(e)(4) maintains its long standing policy that 
protein quality is a factor in determining if a substitute food is 
nutritionally inferior to a reference food.'' Because FDA considers 
protein quality when determining whether a substitute food is 
``nutritionally inferior'', FCS believes that protein quality standards 
will be maintained when products labeled as ``cheese substitutes'' are 
used. Therefore, FCS does not need to define an independent protein 
quality requirement for cheese substitutes.
    Accordingly, this final rule is being published without changes 
from FCS' proposed rulemaking. Upon publication this final rule removes 
the section entitled ``Cheese Alternate Products'' Appendix A to part 
210--Alternate Foods for Meals. The removal of the cheese alternate 
products section from appendix A to part 210 eliminates FCS 
specifications for use of cheese alternates as meat alternates. This 
change allows the use of cheese substitutes that are consistent with 
FDA regulations which allow for fat and calorie reductions. This change 
adds to the choice of products available to food service managers while 
reducing processors' regulatory burdens. In addition, the removal of 
the cheese alternate products specifications is consistent with the 
Department's ongoing efforts to promote school meals that meet the 
Dietary Guidelines and is consistent with National Performance Review 
goals of reducing unnecessary federal regulations. Note that the 
removal of this specification also means that the cheese alternate 
label statements currently required by the FCS specification will no 
longer be required. FCS expects that companies that have currently 
approved labels with these statements will discontinue use of these 
statements as soon as it is reasonably possible but no longer than one 
year from the effective date of this regulation.
List of Subjects
7 CFR Part 210
    Children, Commodity School Program, Food Assistance Programs, 
Grants programs-social programs, National School Lunch Program, 
Nutrition, Reporting and recordkeeping requirements, Surplus 
agricultural commodities.

7 CFR Part 225

    Food Assistance Programs, Grant programs--Health, Infants and 
Children.
    For the reasons set forth in the preamble, 7 CFR parts 210 and 225 
are amended as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
    1. The authority citation for 7 CFR part 210 continues to read as 
follows:
    Authority: 42 U.S.C. 1751-1760, 1779.
Sec. 210.10  [Amended]

    2. In Sec. 210.10, the first sentence of paragraph (k)(3)(i) is 
amended by removing the words ``cheese alternate products''.
Sec. 210.10a  [Amended]
    3. In Sec. 210.10a, the first sentence of paragraph (d)(2)(i) is 
amended by removing the words ``cheese alternate products,''.
Appendix A to Part 210 [Amended]
    4. In Appendix A to Part 210--Alternate Foods for Meals, the 
section entitled ``Cheese Alternate Products'' is removed.

[[Page 37672]]



PART 225--SUMMER FOOD SERVICE PROGRAM
    1. The authority citation for 7 CFR part 225 continues to read as 
follows:
    Authority: Secs. 9, 13 and 14, National School Lunch Act, as 
amended (42 U.S.C. 1758, 1761 and 1762a).
Sec. 225.16  [Amended]
    2. In Sec. 225.16, the first sentence of paragraph (f)(3) is 
amended by removing the words ``cheese alternate products,''.

    Dated: July 12, 1996.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 96-18404 Filed 7-18-96; 8:45 am]
BILLING CODE 3410-30-M