[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Rules and Regulations]
[Pages 31962-32120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08098]
[[Page 31961]]
Vol. 89
Thursday,
No. 81
April 25, 2024
Part III
Department of Agriculture
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Food and Nutrition Service
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7 CFR Parts 210, 215, 220, et al.
Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025
Dietary Guidelines for Americans; Final Rule
Federal Register / Vol. 89 , No. 81 / Thursday, April 25, 2024 /
Rules and Regulations
[[Page 31962]]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 215, 220, 225, and 226
[FNS-2022-0043]
RIN 0584-AE88
Child Nutrition Programs: Meal Patterns Consistent With the 2020-
2025 Dietary Guidelines for Americans
AGENCY: Food and Nutrition Service (FNS), Department of Agriculture
(USDA).
ACTION: Final rule.
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SUMMARY: This rulemaking finalizes long-term school nutrition
requirements based on the goals of the Dietary Guidelines for
Americans, 2020-2025, robust stakeholder input, and lessons learned
from prior rulemakings. Notably, this rulemaking gradually phases in
added sugars limits for the school lunch and breakfast programs and in
the Child and Adult Care Food Program, updates total sugars limits for
breakfast cereals and yogurt to added sugars limits. As a reflection of
feedback from stakeholders, this final rule implements a single sodium
reduction in the school lunch and breakfast programs and commits to
studying the potential associations between sodium reduction and
student participation in the school lunch and breakfast programs. This
rulemaking addresses a variety of other school meal requirements,
including establishing long-term milk and whole grain requirements.
Finally, this rule includes provisions that strengthen Buy American
requirements. While this rulemaking takes effect school year 2024-2025,
the Department is gradually phasing in required changes over time.
Program operators are not required to make any changes to their menus
as a result of this rulemaking until school year 2025-2026 at the
earliest.
DATES: This final rule is effective July 1, 2024. Phased-in
implementation dates for required changes are addressed in the
SUPPLEMENTARY INFORMATION section of this rule.
ADDRESSES: Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the rulemaking docket, including any
background documents.
FOR FURTHER INFORMATION CONTACT: Andrea Farmer, Director, School Meals
Policy Division--4th floor, Food and Nutrition Service, 1320 Braddock
Place, Alexandria, VA 22314; telephone: 703-305-2054.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
Phased-In Implementation
USDA Support for Child Nutrition Programs
Federal Strategies To Reduce Sodium and Added Sugars in the Food
Supply
Overview of Public Comments
2. Added Sugars
3. Milk
3A: Flavored Milk
3B: Fluid Milk Substitutes: Responses to Request for Input
3C: Fluid Milk Substitutes: Nutrient Requirements
4. Whole Grains
5. Sodium
6. Meats/Meat Alternates at Breakfast
7. Substituting Vegetables for Grains in Tribal Communities
8. Traditional Indigenous Foods
9. Afterschool Snacks
10. Substituting Vegetables for Fruits at Breakfast
11. Nuts and Seeds
12. Beans, Peas, and Lentils at Lunch
13. Competitive Foods: Bean Dip Exemption
14. Meal Modifications
15. Clarification on Potable Water Requirements
16. Synthetic Trans Fats
17. Professional Standards: Hiring Exception for Medium and Large
Local Educational Agencies
18. Buy American
18A: Limited Exceptions to the Buy American Requirement
18B: Exception Documentation and Reporting Requirements
18C: Procurement Procedures
18D: Definition of ``Substantially''
18E: Clarification of Requirements for Harvested Farmed and Wild
Caught Fish
19. Geographic Preference
20. Miscellaneous Changes
21. Summary of Changes
21A: Descriptive Summary of Changes
21B: Table of Changes by Program
22. Procedural Matters
Regulatory Impact Analysis
Table of Abbreviations
AFHK--Action for Healthy Kids
ADA--Americans with Disabilities Act
CACFP--Child and Adult Care Food Program
CNA--Child Nutrition Act
CN-OPS--Child Nutrition Operations Study
FAR--Federal Acquisitions Regulations
FDA--U.S. Food and Drug Administration
FNS--Food and Nutrition Service
HEI--Healthy Eating Index
HMI--Healthy Meals Incentives
ICN--Institute of Child Nutrition
NASEM--National Academies of Science, Engineering, and Medicine
NSLA--National School Lunch Act
NSLP--National School Lunch Program
SBP--School Breakfast Program
SFSP--Summer Food Service Program
SNAP--Supplemental Nutrition Assistance Program
SMP--Special Milk Program
SY--School Year
USDA--U.S. Department of Agriculture
Section 1: Background
On February 7, 2023, the U.S. Department of Agriculture (USDA)
published Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans \1\ (``2023
proposed rule'') to update the school meal pattern requirements based
on a comprehensive review of the Dietary Guidelines for Americans,
2020-2025 (Dietary Guidelines), robust stakeholder input on the school
meal patterns, and lessons learned from prior rulemakings.\2\ USDA is
finalizing that proposed rule, with some modifications based on public
input. This final rule is the next step in an ongoing effort toward
healthier school meals that USDA and the broader school meals community
have been partnering on for well over a decade.
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\1\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans (88 FR
8050, February 7, 2023). Available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for.
\2\ U.S. Department of Agriculture and U.S. Department of Health
and Human Services. 2020-2025 Dietary Guidelines for Americans. 9th
Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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Separately, on January 23, 2020, USDA published a proposed rule,
Simplifying Meal Service and Monitoring Requirements in the National
School Lunch and School Breakfast Programs (``the 2020 proposed
rule'').\3\ As noted in the 2023 proposed meal pattern rule, based on
public comment, USDA is finalizing certain meal pattern provisions from
the 2020 proposed rule in this final rule.\4\ The following sections
address rule provisions that were included in the 2020 proposed rule:
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\3\ Simplifying Meal Service and Monitoring Requirements in the
National School Lunch and School Breakfast Programs (85 FR 4094,
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
\4\ Other provisions of the 2020 proposed rule related to
program monitoring were finalized in Child Nutrition Program
Integrity (88 FR 57792, August 23, 2023). Available at: https://www.federalregister.gov/documents/2023/08/23/2023-17992/child-nutrition-program-integrity.
Section 6: Meats/Meat Alternates at Breakfast
Section 12: Beans, Peas, and Lentils at Lunch
Section 14: Meal Modifications
Section 15: Clarification on Potable Water Requirements
Section 16: Synthetic Trans Fats
Through this rulemaking, USDA is exercising broad discretion
authorized by Congress to administer the school
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lunch and breakfast programs and ensure meal patterns ``are consistent
with the goals of the most recent'' Dietary Guidelines.\5\ See 42
U.S.C. 1752, 1758(a)(1)(B), 1758(k)(1)(B), 1758(f)(1)(A), and
1758(a)(4)(B). Consistent with its historical position, USDA interprets
``consistent with the goals of'' the Dietary Guidelines to be a broad,
deferential phrase that requires consistency with the ultimate
objectives of Dietary Guidelines but not necessarily the adoption of
the specific consumption requirements or specific quantitative
recommendations in the Dietary Guidelines. Accordingly, through this
final rule, USDA is working to ensure an appropriate degree of
consistency between school meal patterns and the Dietary Guidelines by
considering operational feasibility and the ongoing recovery from the
impacts of COVID-19, while also ensuring schools can plan appealing
meals that encourage consumption and intake of key nutrients that are
essential for children's growth and development.
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\5\ The Dietary Guidelines, 2020-2025 provide four overarching
recommendations: (1) Follow a healthy dietary pattern at every life
stage. (2) Customize and enjoy nutrient-dense food and beverage
choices to reflect personal preferences, cultural traditions, and
budgetary considerations. (3) Focus on meeting food group needs with
nutrient-dense foods and beverages and stay within calorie limits.
(4) Limit foods and beverages higher in added sugars, saturated fat,
and sodium, and limit alcoholic beverages.
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This rulemaking updates current meal pattern requirements, which
were most recently updated in SY 2022-2023 through the final rule,
Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium (``the transitional standards rule''). USDA intended
for the transitional standards rule to serve as a bridge, providing
immediate relief as schools returned to traditional school meal service
following extended use of COVID-19 meal pattern flexibilities. A
detailed overview of the transitional standards rule, USDA's
stakeholder engagement campaign, and other factors considered in the
proposed rule development can be found in the 2023 proposed rule
preamble.\6\ With this rule, USDA intends to further align school meal
nutrition requirements with the goals of the Dietary Guidelines, 2020-
2025. This effort is described in greater detail, as informed by public
comments on the proposed rule, throughout this preamble.
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\6\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans (88 FR
8050, February 7, 2023). Available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for.
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Phased-In Implementation
For most children, school meals are the healthiest meals they
consume in a day,\7\ and USDA research has found that school meals
contribute positively to the diet quality of all participating
students.\8\ However, there is still room for improvement. For example,
the Dietary Guidelines for Americans, 2020-2025 indicates that about 70
to 80 percent of school children exceed the recommended daily limit of
added sugars.\9\ Research suggests that among adolescents, certain poor
dietary behaviors--such as skipping breakfast and infrequent
consumption of fruits and vegetables--worsened during the COVID-19
pandemic.\10\ Updating the school meal patterns is one strategy to
increase healthy dietary behaviors among school children for the long
term. Many children rely on school meals for more than half of their
food each school day, so even small nutritional improvements can make a
difference.\11\
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\7\ Liu J, Micha R, Li Y, Mozaffarian D. Trends in Food Sources
and Diet Quality Among US Children and Adults, 2003-2018. JAMA.
April 12, 2021. Available at: https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921.
\8\ ``While USDA school meals were bigger contributors to the
caloric intakes of students from less food-secure households, they
contributed positively to the diet quality of all participating
students . . . For both food-insecure and food-secure students, the
average HEI scores for non-school foods were between 55 and 57,
whereas school foods scored between 79 and 81. School foods were
particularly noteworthy as sources of fruit, dairy, and whole
grains.'' U.S. Department of Agriculture. USDA School Meals Support
Food Security and Good Nutrition. May 3, 2021. Available at: https://www.ers.usda.gov/amber-waves/2021/may/usda-school-meals-support-food-security-and-good-nutrition/.
\9\ See ``Percent Exceeding Limits of Added Sugars, Saturated
Fat, and Sodium'' on pages 79, 82, and 85. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: https://www.dietaryguidelines.gov/.
\10\ Michael SL, Jones SE, Merlo CL, et al. Dietary and Physical
Activity Behaviors in 2021 and Changes from 2019 to 2021 Among High
School Students--Youth Risk Behavior Survey, United States, 2021.
MMWR Suppl 2023;72(Suppl-1):75-83. DOI: http://dx.doi.org/10.15585/mmwr.su7201a9.
\11\ Karen Weber Cullen, Tzu-An Chen, The contribution of the
USDA school breakfast and lunch program meals to student daily
dietary intake, Preventive Medicine Reports. March 2017. Available
at: https://www.sciencedirect.com/science/article/pii/S2211335516301516.
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At the same time, USDA understands that changes to the meal
patterns need to be gradual and predictable to give child nutrition
program operators and children time to adapt, and to allow industry
time to develop new products. This final rule responds to stakeholder
input by building in plenty of time for State agencies, school
nutrition professionals, and other program operators to successfully
implement the required changes. For example, as discussed in Section 2:
Added Sugars, USDA is gradually phasing in the product-based and weekly
limits for added sugars in the school meal programs. As discussed in
Section 5: Sodium, this final rule gives schools and manufacturers even
more time to reduce sodium compared to the proposed rule. As
recommended by numerous stakeholders, it also commits to examining
sodium reduction in school meals and assessing the potential impact of
these reductions on program operations and student participation. This
rulemaking does not make changes to the current whole grain
requirements for school meals and continues to allow schools to offer
flavored milk, subject to new added sugars limits, to all K-12
students. Although USDA considered alternatives for the whole grain and
flavored milk requirements, based on stakeholder input, USDA determined
that maintaining the current requirements would best position schools
and students for success.
Other changes in this rule simplify program regulations and provide
child nutrition program operators more flexibility to successfully plan
and prepare meals. These changes will be implemented on a quicker
timeline, as they provide optional administrative or operational
flexibilities but do not require operators to change menus or
operations. For example, this rulemaking makes it easier for schools to
offer meats/meat alternates at breakfast by removing the minimum grains
requirement. It removes the limit for nut and seed crediting at
breakfast, lunch, and supper in the child nutrition programs, making it
easier for operators to offer vegetarian meals. This rulemaking also
makes it easier for program operators to purchase local foods for the
child nutrition programs by allowing ``locally grown, raised, or
caught'' to be used as procurement specifications for unprocessed or
minimally processed food items.
Each provision of this rule, along with its implementation date, is
discussed in greater detail throughout this preamble. A chart outlining
each regulatory change and its implementation date is included in
Section 21: Summary of Changes.
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USDA Support for Child Nutrition Programs
USDA is incredibly grateful for the dedication of child nutrition
program operators who serve children healthy meals with kindness and
care. USDA understands that some program operators continue to face
high food costs and supply chain issues. The Department is committed to
continuing to provide program operators with support to help them
succeed.
USDA is making a $100 million \12\ investment in the Healthy Meals
Incentives (HMI) Initiative, which is dedicated to improving the
nutritional quality of school meals through food systems
transformation, school food authority recognition and technical
assistance, the generation and sharing of innovative ideas and tested
practices, and grants. As part of a cooperative agreement to develop
and implement USDA's HMI Initiative, Action for Healthy Kids (AFHK) has
awarded nearly $30 million in grants to 264 small and/or rural school
food authorities across 44 States and the District of Columbia. These
school food authorities will use funding to modernize their operations
and provide more nutritious meals to students. Additionally, AFHK is
offering Recognition Awards to celebrate and spotlight school food
authorities who use innovative practices, student and community
engagement activities, and other strategies to provide meals that are
consistent with the Dietary Guidelines for Americans, 2020-2025.
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\12\ U.S. Department of Agriculture. USDA Launches $100 Million
Healthy School Meals Initiative, Announces Grant Program for Rural
Schools. September 23, 2022. Available at: https://www.fns.usda.gov/news-item/fns-0010.22.
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USDA also provides support to schools through its annual Patrick
Leahy Farm to School Grant Program. These funds support a wide range of
farm to school activities designed to improve access to local foods in
eligible schools from training, planning, and developing partnerships
to creating new menu items, expanding local supply chains, offering
taste tests to children, purchasing equipment, planting school gardens,
and organizing field trips to agricultural operations.
Finally, USDA will continue to provide technical assistance to
State agencies, schools, and other program operators to ensure they
have the guidance and support they need to successfully implement this
rule. USDA will release updated policy guidance and will host a series
of webinars to provide a detailed overview of this rulemaking. In
addition, communications resources related to this rulemaking are
available on the USDA Food and Nutrition Service website.\13\
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\13\ U.S. Department of Agriculture Food and Nutrition Service.
Available at: https://www.fns.usda.gov/.
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Federal Strategies To Reduce Sodium and Added Sugars in the Food Supply
USDA recognizes that schools and child and adult care institutions
are part of the broader food environment. In order to successfully make
improvements to the child nutrition program meal patterns, stakeholders
have emphasized that similar improvements must be made to the broader
food environment. For example, stakeholders have suggested that
children are more likely to accept lower sodium school meals if the
meals they consume outside of school are lower in sodium. Research has
shown that consumer preferences and expectations for salty tastes can
adjust as dietary intake changes.\14\
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\14\ The Food and Drug Administration. Memo: Salt Taste
Preference and Sodium Alternatives. 2016. Available at: https://www.regulations.gov/document/FDA-2014-D-0055-0152.
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To that end, other Federal agencies are supporting efforts to
improve dietary behaviors among the U.S. population. For example, the
Food and Drug Administration (FDA) is taking an iterative approach to
gradually reduce sodium in the U.S. food supply that includes
establishing voluntary sodium targets for industry, monitoring and
evaluating progress, and engaging with stakeholders. The FDA is
especially encouraging adoption of the voluntary targets by food
manufacturers whose products make up a significant proportion of
national sales in one or more food categories and restaurant chains
that are national and regional in scope.\15\ These efforts are
discussed in greater detail in Section 5: Sodium.
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\15\ The Food and Drug Administration. Sodium Reduction.
Available at: www.fda.gov/SodiumReduction.
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The FDA is also committed to reducing added sugars in the U.S. food
supply and in individual's diets. In 2016, FDA issued a final rule \16\
updating the Nutrition Facts label, which requires, in part, a
declaration of the added sugars in a serving of a product and the
percent Daily Value (% DV) for added sugars. Manufacturers with $10
million or more in annual sales were required to update their labels by
January 1, 2020; manufacturers with less than $10 million in annual
food sales were required to update their labels by January 1, 2021.
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\16\ Food Labeling: Revision of the Nutrition and Supplement
Facts Labels (81 FR 33742, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels.
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Additionally, following the 2022 White House Conference on Hunger,
Nutrition, and Health, the White House released a National Strategy
\17\ that highlighted that the intake of added sugars for most
Americans is higher than what is recommended by the Dietary Guidelines
and included several FDA initiatives to accelerate efforts to empower
individuals with information and create a healthier food supply. In
November 2023, FDA, in collaboration with USDA and the U.S. Department
of Health and Human Services, held a virtual public meeting and
listening sessions entitled, ``Strategies to Reduce Added Sugars
Consumption in the United States.'' This public meeting was a
commitment made in the National Strategy and connected Federal
agencies, communities, and private industry to explore different
tactics for reducing added sugars in the U.S. food supply and in
individuals diets. Presentations during this meeting provided a
background on added sugars, discussed strategies for reducing added
sugars by other countries, and highlighted approaches to increase
engagement and education on added sugars. This meeting was accompanied
by two days of facilitated listening sessions where participants
offered feedback and recommendations for next steps on proposed
strategies.
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\17\ Biden-Harris Administration National Strategy on Hunger,
Nutrition, and Health, September 2022. Available at: https://www.whitehouse.gov/wp-content/uploads/2022/09/White-House-National-Strategy-on-Hunger-Nutrition-and-Health-FINAL.pdf.
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The U.S. Department of Health and Human Service's Office of Disease
Prevention and Health Promotion's Healthy People 2030 initiative also
includes a focus on reducing consumption of added sugars and sodium in
individuals aged 2 years and older.\18\ As detailed in Section 2: Added
Sugars and Section 5: Sodium, the Dietary Guidelines, which are updated
and jointly released by the USDA and the Department of Health and Human
Services, recommend limiting foods and beverages higher in added sugars
and sodium. Specifically, the Dietary Guidelines recommend that added
sugars make up less than 10 percent of calories per day for individuals
age 2 years and older. The Dietary Guidelines also recommend consuming
less than 2,300 milligrams of sodium per day--
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and even less for children younger than age 14.\19\
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\18\ U.S. Department of Health and Human Service's Office of
Disease Prevention and Health Promotion. Health People 2030.
Available at: https://health.gov/healthypeople.
\19\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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In addition, the historic White House Conference on Hunger,
Nutrition, and Health inspired actions to support a whole of society
approach to improving nutrition and health. Over $8 billion in public-
and private-sector commitments were made to improve food and nutrition
security, promote healthy choices, and improve physical activity. USDA
expects that, when carried through, the commitments made as part of the
White House Conference will support improvements to the broader food
environment, thereby supporting efforts to improve nutrition in school
and child and adult care settings.
For example, the private sector made the following commitments in
fall 2022: \20\
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\20\ The White House. FACT SHEET: The Biden-Harris
Administration Announces More Than $8 Billion in New Commitments as
Part of Call to Action for White House Conference on Hunger,
Nutrition, and Health. September 28, 2022. Available at: https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/28/fact-sheet-the-biden-harris-administration-announces-more-than-8-billion-in-new-commitments-as-part-of-call-to-action-for-white-house-conference-on-hunger-nutrition-and-health/.
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Danone North America committed to prioritizing new
reduced-sugar, low-sugar, and no-added-sugar options in its children's
products and pledged that 95 percent of these products will contain
less than 10 grams of total sugar per 100 grams of food product by
2030.
The National Restaurant Association committed to expand
its Kids Live Well program to 45,000 additional restaurants and food
service locations. Kids Live Well is a voluntary initiative to help
restaurants offer healthier meal options for children that meet added
sugars, sodium, and calories thresholds established by the latest
nutrition science.
Tyson Foods committed to reformulating and improving the
nutritional value of its prepared foods portfolio, with a focus on
reducing sodium.
Walgreens committed to increasing the selection of fresh
food in its stores by 20 percent, including a greater variety of fresh
produce, and implementing new solutions to highlight healthy
ingredients and further reduce harmful ones.
The strides made in school nutrition over the past decade
demonstrate that healthier school meals are possible when everyone who
plays a part--food industry, school nutrition professionals, USDA, and
others--work together toward the common goal of improving children's
health. This includes USDA continuing to do its part to ensure schools
and other child nutrition program operators have the support they need
to successfully implement this rulemaking. USDA recognizes that child
nutrition program operators have a challenging job and appreciates
their tireless dedication to the children in their care. USDA is
continually looking for ways to better support program operators who
provide our Nation's children with nutritious meals and snacks. The
Department welcomes input from stakeholders on what additional guidance
and support State agencies, schools, and other program operators will
need to successfully implement this rulemaking.
Overview of Public Comments and USDA Response
USDA appreciates public interest in the proposed rule. USDA
initially provided a 60-day public comment period (February 7, 2023,
through April 10, 2023). Based on stakeholder requests \21\ for
additional time to review the rule and assess its impact, USDA extended
the public comment period by 30 days. During the 90-day comment period
(February 7, 2023, through May 10, 2023), USDA received more than
136,000 comments. Of the total, about 125,000 were form letters from 46
form letter campaigns, and about 5,000 were unique submissions. An
additional 6,400 were duplicate or non-germane submissions. USDA
received public comments from State agencies, school nutrition
professionals, advocacy groups, industry respondents, professional
associations, school districts, CACFP sponsoring organizations,
dietitians, and individuals, including students, parents and guardians,
grandparents, and other caregivers. Overall, over 23,000 respondents,
including over 700 unique submissions, supported the proposed rule in
its entirety. Over 6,000 respondents, including over 1,000 unique
submissions, opposed the proposed rule in its entirety.
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\21\ USDA received requests to extend the proposed rule comment
period from the American Commodity Distribution Association and the
Urban School Food Alliance and from Senator Boozman and
Representative Foxx. The letters are available at: https://www.regulations.gov/comment/FNS-2022-0043-2915 and https://www.regulations.gov/comment/FNS-2022-0043-12391.
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Many school nutrition professionals supported provisions of the
rule that provide menu planners more flexibility, and provisions that
maintain requirements that menu planners have already successfully
implemented. For example, a national organization representing tens of
thousands of school nutrition professionals offered support for the
following provisions that USDA ultimately finalized or committed to in
this final rule:
Maintaining the current requirement allowing all schools
to offer fat-free and low-fat milk, flavored and unflavored, to K-12
students.
Maintaining the current requirement that at least 80
percent of weekly grains offered in school meals are whole grain-rich.
Committing to conducting a study on potential associations
between sodium reduction and student participation.
Allowing schools more flexibility to offer meats/meat
alternates in place of grains at breakfast.
Allowing tribally operated schools, schools operated by
the Bureau of Indian Education, and schools serving primarily American
Indian or Alaska Native children to serve vegetables to meet the grains
requirement.
Codifying in regulation that traditional Indigenous foods
may be served in reimbursable school meals.
Allowing nuts and seeds to credit for the full meats/meat
alternates component in all child nutrition programs and meals.
Exempting bean dip from the total fat standard in Smart
Snacks regulations.
Allowing State agencies discretion to make exceptions to
the degree requirement for school nutrition directors hired in medium
and large districts.
USDA worked in collaboration with a data analysis company to code
and analyze the public comments using a commercial, web-based software
product. The Summary of Public Comments report is available under the
Browse Documents tab in docket FNS-2022-0043. All comments are posted
online at https://www.regulations.gov.\22\
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\22\ See: Docket FNS-2022-0043. Child Nutrition Programs:
Revisions to Meal Patterns Consistent with the 2020 Dietary
Guidelines for Americans. Available at: https://www.regulations.gov/docket/FNS-2022-0043.
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The following paragraphs describe general themes from the public
comments. Many respondents also provided feedback on the specific
proposals. This specific feedback is included in the subsequent
sections of the preamble, as applicable.
Public Comments: Dedication of School Nutrition Professionals
Several respondents expressed appreciation for the efforts of
school
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nutrition professionals. An advocacy group noted that school nutrition
professionals provide balanced, nutritious meals to children, promoting
academic success and supporting the entire school community's efforts
to enrich the lives of students. Another respondent emphasized that
school nutrition professionals are deeply caring people who are
invested in children's health and wellbeing. An advocacy group agreed,
noting that school nutrition professionals go ``above and beyond'' to
keep children nourished; as an example, one respondent described
efforts at their school to create menus that are nutritionally
balanced, flavorful, and cater to student preferences. When considering
options for the final rule, one dietitian urged USDA to listen to the
school nutrition professionals who ``do the work'' every day by
providing meals to children.
Respondents also commended successful implementation of school meal
pattern improvements established under the Healthy Hunger-Free Kids
Act. For example, one advocacy group reported that the updated
nutrition standards enhanced the nutritional quality of meals and
increased student participation. Another advocacy group noted that
school nutrition professionals have worked tirelessly to reduce sodium,
calories, and fat; to introduce students to whole grain foods; and to
increase fruits and vegetables in school meals. Another respondent was
proud of efforts made by school nutrition professionals thus far,
emphasizing that school meals are the healthiest meals that most
students receive each day. A joint response from several elected
officials stated that strong school nutrition requirements are ``one of
the most important public health achievements in a generation.'' This
response also noted that school cafeterias across the country are
``leading the way to serving healthy, delicious, and culturally
relevant foods'' to children.
USDA Response: USDA appreciates and agrees with public comments
that cited the important work of school nutrition professionals. The
Department values the vital work that school nutrition professionals
and other child nutrition program operators do every day to keep our
Nation's children nourished and healthy. In this final rule, USDA
incorporated feedback from individuals with firsthand experience
operating the child nutrition programs. For example, this feedback is
reflected in Section 3A: Flavored Milk, where USDA considered
operational challenges that respondents raised in response to the
proposal that would have applied different milk requirements across
grade levels. USDA also considered child nutrition program operator
feedback when determining implementation dates for the provisions of
this rule, including in Section 5: Sodium.
Public Comments: Nutrition and Health
Over 11,000 respondents cited the need for strong nutrition
requirements. For example, an advocacy group suggested that aligning
the school meal nutrition requirements with the goals of the Dietary
Guidelines ``sets our students up for lifelong success.'' Other
respondents emphasized the importance of strong nutrition requirements
to children's academic achievement and overall wellbeing. A form letter
campaign stated that strong nutrition requirements can help to address
health disparities and improve nutrition equity. Another respondent
agreed, maintaining that the child nutrition programs are important
tools in addressing health disparities and advancing nutrition security
among communities of color. An advocacy group emphasized the importance
of nutritious meals in schools and child care settings, noting that
these meals often represent a significant portion of children's food
intake. This respondent argued that continued improvement in the meal
patterns could reduce children's risk for diet-related diseases.
Another advocacy group agreed, stating that the school meal programs
provide more than half of some students' calories and are often the
healthiest sources of food for school children. An industry respondent
described school meals as a nutrition ``success story'' and stated that
good nutrition is essential to children's growth, learning, and
development. An advocacy group emphasized that the proposed evidence-
based standards will ``make school meals even healthier.''
Some respondents, including a form letter campaign, encouraged USDA
to go further; for example, by implementing sodium reductions beyond
those proposed in the rule. Respondents also encouraged USDA to
strengthen the whole grains proposal, by requiring all grains offered
in school meals to be whole grain-rich.\23\ Others urged USDA to adopt
a swifter timeline for implementation; for example, one advocacy group
recommended that USDA ``implement the strongest nutrition standards on
the fastest timeline possible.'' A few respondents, including an
advocacy group, encouraged USDA to update the Summer Food Service
Program meal patterns to more closely align with the goals of the
Dietary Guidelines, including by serving more fruits, vegetables, and
whole grains. These respondents emphasized the importance of providing
children with healthy, high-quality meals year-round.
---------------------------------------------------------------------------
\23\ To meet USDA's whole grain-rich criteria, a product must
contain at least 50 percent whole grains, and the remaining grain
content of the product must be enriched.
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USDA Response: USDA appreciates public comments that discussed the
importance of strong, science-based nutrition requirements and the
positive impact on children's health. The Department agrees with
respondents that asserted that meals served in child nutrition programs
contribute to healthy dietary patterns and improved dietary outcomes.
In this final rule, USDA has considered these important factors, along
with the importance of ensuring that the meal patterns are practical
and achievable for schools. For example, this final rule will continue
to reduce sodium in school meals, while taking a gradual approach to
implementation to give schools, students, and the food industry time to
adapt to the changes. The Department also acknowledges comments that
requested more whole grains in school meals; instead, this final rule
continues the requirement that the majority of grains offered be whole
grain-rich, while providing schools some flexibility to offer other
grains. USDA remains committed to its statutory obligation to establish
nutrition requirements for school meals that are consistent with the
goals of the Dietary Guidelines in efforts to improve the nutritional
quality of program meals serve to the Nation's children. While USDA
appreciates public comments regarding the Summer Food Service Program,
extensive updates to the Summer Food Service Program meal pattern are
outside the scope of this rulemaking.
Public Comments: Student Participation
Many respondents expressed concern that the proposed changes could
negatively impact student participation and consumption of meals. Some
respondents suggested that, if the proposed rule was finalized,
students would choose to consume a lunch from home or elsewhere instead
of participating in the school meal programs. These respondents argued
that this would result in non-participating students consuming a meal
that is less nutritious than school meals offered under the current
requirements. Other respondents maintained that school nutrition
programs would suffer if student participation declines.
[[Page 31967]]
Respondents also raised concerns that the proposed limits for added
sugars and sodium could make school meals less appealing to students.
For example, an industry respondent asserted that the proposed added
sugars and sodium limits would negatively impact the taste of foods
that children enjoy. However, an advocacy group noted that students and
families support improving the nutritional quality of school meals,
citing the role school meals play in student academic achievement and
health. A joint comment from several elected officials suggested that
children enjoy healthier school meals, and that the amount of food
wasted in schools has not changed since the nutrition requirements were
updated in 2012.
USDA Response: Although USDA does not expect that updated nutrition
requirements would negatively impact student participation in the
school meal programs,\24\ the Department acknowledges respondent
concerns about the importance of maintaining student participation. The
Department strives to advance nutrition security while also ensuring
that school meals are appealing and enjoyable to students. The changes
finalized in this rule thoughtfully consider both concerns by gradually
phasing in required changes, such as the added sugars limits and sodium
reduction. This phased-in approach will give program operators and
children time to implement and adapt to the changes. Additionally, as
noted in Section 5: Sodium, as part of this rulemaking, USDA has
committed to conducting a study on potential associations between
sodium reduction and student participation.
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\24\ According to USDA research conducted following
implementation of the 2012 final rule, ``There was a positive and
statistically significant association between student participation
in the NSLP and the nutritional quality of NSLP lunches, as measured
by the HEI-2010. Rates of student participation were significantly
higher in schools with HEI-2010 scores in the third and highest
quartiles (that is, the top half) of the distribution compared to
the lowest quartile.'' See page 38. U.S. Department of Agriculture,
Food and Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study Summary of Findings. Available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
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Public Comments: Product Availability
Numerous respondents argued that the proposed meal pattern changes
would force vendors out of the child nutrition market, making it more
difficult for schools to find products needed to comply with USDA meal
requirements. Several respondents expressed concern about increased
costs, procurement challenges, and reduced options for school breakfast
under the proposed rule. A joint comment from a group of elected
officials agreed, arguing that the proposed changes could lead to
``increased complexity'' in school food purchasing, decreasing the
number of options available to schools and forcing schools to compete
for a limited supply of specialized foods. Respondents also expressed
concern about ongoing supply chain issues and food-price inflation. One
industry respondent suggested that rather than implementing new
requirements, USDA should maintain the current requirements and teach
students how to make healthy choices through nutrition education.
A school food service director stated that procurement would be a
challenge under the proposed rule and suggested that it takes ``a few
years'' for manufacturers to catch up with new regulations. This
respondent also suggested manufacturers do not dedicate as much space
to school-specific items in their warehouses, which impacts product
availability. An advocacy group argued that it takes industry three to
five years, and a significant amount of money, to reformulate ``any
given product.'' This respondent also pointed out that the K-12 sector
tends to be the least lucrative market for the food industry. Another
advocacy group agreed, arguing that the cost of producing and stocking
specialized K-12 menu items is ``too high,'' and the demand for these
products on the commercial market is ``too low.'' A State agency also
expressed concern about proposed implementation timeframes, noting that
manufacturer and distributor capabilities have not yet returned to pre-
pandemic levels. A form letter campaign encouraged USDA to work with
the food industry to ensure product availability, particularly for
lower sodium products. One respondent stated that school kitchens are
understaffed, and school nutrition professionals rely heavily on food
manufacturers to provide meals for students. A school district raised
concerns about increased pressure for scratch cooking; while this
respondent acknowledged they would ``love for more scratch options to
be served,'' they did not view this as a realistic option given current
staffing challenges.
Respondents also cited the importance of supporting local farmers
and producers and helping children learn about where their food comes
from. One advocacy group cited the benefits of local food systems,
which they argued stimulate local economies and provide reliable
product availability during supply chain disruptions. Respondents
encouraged USDA to consider equity and inclusion in establishing
regulatory requirements; for example, an advocacy group suggested that
USDA consider the broader food system and supply chains, including farm
workers and other people employed in the food system. This respondent
supported efforts to create a fair and sustainable agricultural
economy. Another respondent advocated for policies that encourage child
nutrition operators to source from socially disadvantaged producers. An
advocacy group suggested that purchases made through the child
nutrition programs should prioritize respect, equity, and inclusion
across the food supply chain. This respondent asserted that supporting
local and regional foods systems, including by strengthening support
for locally owned agricultural and food processing operations, may
create more diversified and resilient supply chains. While offering
support for the proposed geographic preference provision, some
respondents suggested operators would need more financial support to
purchase local foods, especially in the CACFP.
USDA Response: USDA recognizes that many stakeholders expressed
concerns about product availability and understands the impact of
product availability and cost on the operation of the child nutrition
programs, as well as challenges posed by staffing constraints. At the
same time, the Department appreciates public comments that cited
continuous industry efforts to develop nutritious foods for child
nutrition programs, and many of the provisions of this rule incorporate
input from industry respondents. For example, USDA agrees with public
comments that stated there are products already available that meet the
product-based limits for added sugars, which aligns with data collected
by USDA.\25\ USDA expects that ongoing industry efforts to develop
nutritious foods will support product availability for child nutrition
programs. USDA considered each of these factors when developing this
final rule; for example, by moving forward with important changes while
providing ample time for implementation. As detailed in Section 2:
Added Sugars and Section 5: Sodium, USDA is providing about three years
for implementation of the weekly added sugars limit and sodium
reduction in response to public comments that suggested it takes about
[[Page 31968]]
three years for manufacturers to reformulate products.
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\25\ U.S. Department of Agriculture Food and Nutrition Service,
Office of Policy Support data collection of nutrition label
information from major cereal and yogurt manufacturer K-12 and food
service catalogs. Data were collected on 191 total cereal products
and 110 total yogurt products. See Regulatory Impact Analysis.
---------------------------------------------------------------------------
Public Comments: Financial Challenges
Many respondents emphasized the importance of investing in school
nutrition programs financially. For example, respondents cited concerns
about food cost, inflation, meal debt, and supply chain challenges. An
advocacy group noted that many stakeholder concerns about the proposed
rule are related to resource constraints. This respondent suggested
financial pressures undermine the program's goals. Another advocacy
group expressed appreciation for the HMI Initiative to support small
and rural schools, and supported USDA's plans to provide technical
assistance, share best practices, and encourage collaboration with the
food industry. One State agency supported increased meal
reimbursements, investments in kitchen equipment and infrastructure,
and more training opportunities. Another respondent agreed, stating
that the program reimbursement rates are ``simply not enough'' to cover
food and labor costs, while others suggested schools would need extra
supplies or funding to implement the updated meal patterns.
USDA Response: USDA acknowledges public comments from program
operators that emphasized that financial sustainability is critical for
successful child nutrition program operations. USDA understands that
schools and other program operators need support to succeed in
implementing updated requirements. As part of this effort, USDA
continues to provide high-quality, cost-effective foods through USDA
Foods and various grant-funded opportunities. USDA has also provided
significant additional financial resources to address specific needs,
such as the $3.8 billion in supply chain assistance funds provided in
fiscal years 2021, 2022, and 2023 to address product shortages and
price increases experienced after the pandemic.\26\ While increasing
the Federal reimbursement rates is beyond USDA's authority and would
require Congressional action, the Department remains committed to
providing support to child nutrition program operators.
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\26\ U.S. Department of Agriculture. FNS Actions to Address
COVID-19 Related Supply Chain Disruptions. Available at: https://www.fns.usda.gov/supply-chain.
---------------------------------------------------------------------------
Public Comments: Practical and Durable Standards
Numerous respondents discussed the need for attainable nutrition
requirements. Some respondents asserted that certain proposals are
impractical, or that the school nutrition programs cannot move beyond
current meal pattern requirements. A handful of respondents suggested
maintaining the transitional standards as the permanent school
nutrition requirements, suggesting the transitional standards represent
a ``middle ground.'' Many respondents recommended that USDA study the
impact of the current meal pattern requirements prior to making any
further changes.
Respondents cited concerns about the broader food environment,
arguing that schools are not solely to blame for children's excess
consumption of added sugars and sodium. One respondent pointed out that
when considering the full calendar year, many children consume more
meals outside of school than in school. This respondent agreed that
school meals contribute to children's health but emphasized the
importance of improving food choices in other settings. Another
respondent recommended that USDA focus on the ``food system as a
whole'' and engage in a public health initiative to reduce added sugars
and sodium in grocery store foods.
Regarding implementation dates, one dietitian recommended that USDA
delay implementation of any new requirements until 2027. This
respondent suggested that additional time would allow school nutrition
directors to educate staff on upcoming changes and allow industry to
develop new food products. A school district agreed, describing the
implementation timeframes for added sugars and sodium as ``a little
rushed.'' Several respondents specifically recommended delaying
implementation of any provisions that would impact CACFP. These
respondents raised concerns about a lack of CACFP stakeholder
engagement and the importance of providing the CACFP community ample
time to prepare for the changes.
Other respondents felt the proposed implementation timeframes were
adequate. An advocacy group argued that the food industry could adapt
to incremental implementation, which they noted was built into the
proposed rule. A State agency agreed, suggesting that the proposed
phased-in implementation would provide the opportunity to revise menu
offerings, manage inventory, and offer technical assistance. A second
State agency affirmed that the proposed implementation dates provide
adequate lead time; however, this respondent also noted that timely
publication of the final rule would be ``critical'' to allow for
product reformulation, procurement, and menu planning. An advocacy
group described USDA's phased-in approach as ``reasonable,'' stating
that the proposed rule would improve school meals ``in a practical
way.'' This respondent suggested that the proposed sodium limits, for
example, would give schools time to plan, source, and test meals that
meet the proposed limits. Another advocacy group that described the
rule as ``scientifically sound and practical'' argued that the proposed
rule would give schools time to implement the new requirements while
also prioritizing children's health. A joint response from several
elected officials maintained that the proposed rule included a
``common-sense incremental approach to implementation, making it
feasible for schools and the food industry to have success.'' An
advocacy group supported the phased-in implementation for sodium but
noted it would be ``incumbent'' upon manufacturers to reformulate
products to ensure the limits would be effective.
USDA Response: USDA recognizes that meaningful improvement in the
nutritional quality of school meals is best achieved by nutrition
requirements that are both ambitious and feasible. The Department also
acknowledges public comments that suggested child nutrition program
operators need time to successfully implement new requirements, and
that feedback is reflected in this final rule. For example, this final
rule gradually phases in certain requirements, such as the added sugars
limits, to provide program operators time to make menu changes.
Additionally, this final rule includes several provisions that provide
menu planners with more options to create healthy meals; for example,
by making it easier for schools to offer meats/meat alternates at
breakfast (see Section 6: Meats/Meat Alternates at Breakfast). By
incorporating valuable feedback from stakeholders into this final rule,
the Department continues to put children's health at the forefront
while also ensuring that the program requirements are achievable and
set up schools and child and adult care institutions for success.
Public Comments: Other School Nutrition Comments
Some respondents recommended other meal pattern requirements or
offered suggestions for USDA to consider. One respondent suggested
adding a requirement for ``healthy fats'' in school meals, while
another recommended establishing a minimum fiber standard. Another
respondent encouraged USDA to provide recipes, training, and nutrition
education to
[[Page 31969]]
encourage schools to offer more seafood in school meals. Numerous
respondents recommended that USDA restrict or limit the use of
artificial or non-nutritive sweeteners in school meals. Others
encouraged USDA to provide incentives for fresh fruits and vegetables,
rather than restricting certain foods. A form letter campaign and
numerous other respondents supported expanding access to vegetarian,
vegan, or plant-based school meals. One respondent suggested
implementing a plant-based protein requirement in school meals, while
another encouraged schools to adopt a ``meat-free day.'' A few
respondents noted that Black, Indigenous, and other People of Color
(BIPOC) are three times as likely to follow a plant-based diet than
white people and suggested that providing more plant-based meals would
support equity in the school meal programs. Respondents also cited the
importance of meeting cultural food preferences. For example, one
advocacy group noted that food is ``socially and emotionally
nurturing'' and emphasized the importance of meeting nutrition
requirements as well as food preferences. Another advocacy group cited
a research brief that suggested that ``enhancing the palatability and
cultural appropriateness of meals'' offered would improve meal
consumption.
A few respondents, particularly those who operate multiple child
nutrition programs, supported stronger alignment of the nutrition
requirements for all program meal patterns. A student encouraged USDA
to seek student perspectives on meal pattern requirements. This
respondent suggested students who participate in the school meal
programs would provide important perspectives on food waste, cultural
relevance, and nutrition. Although outside the scope of this
rulemaking, several respondents supported expanding access to free
school meals and providing students with more time to eat school lunch.
For example, one respondent noted that studies have shown that even
modest increases in time to eat result in ``improved consumption,
particularly of fruit and vegetables, and reduced food waste.''
USDA Response: USDA appreciates public comments that provided
additional feedback and suggestions for new requirements beyond what
was proposed. Certain suggestions, such as adjusting the eligibility
requirements for free meals or providing more time for children to eat
their meals, are beyond USDA's authority. While USDA does not have
authority to regulate the length of school meal periods, USDA
encourages schools to provide children adequate seat time to consume
their meals. USDA acknowledges public comments encouraging more plant-
based meals as a strategy to support equity in school meals. Meal
pattern requirements are established to provide the foundation of well-
balanced meals, and USDA encourages program operators to develop menus
that meet the needs of their diverse communities. This rulemaking
provides more opportunities for schools to offer plant-based meals. In
response to requests to streamline program requirements, USDA has
endeavored to better align child nutrition program requirements in this
rulemaking; for example, by aligning nut and seed crediting across all
child nutrition programs and meals (see Section 11: Nuts and Seeds).
While other suggestions outside the scope of this rulemaking, such as
developing requirements for ``healthy fats'' and artificial sweeteners,
are not included in the final rule, the Department remains committed to
providing the technical assistance needed to enable schools to serve
diverse, culturally diverse meals to meet the unique needs and
preferences of their students.
Public Comments: Child and Adult Care Food Program
Although the proposed rule primarily focused on revisions to the
school meal patterns, the following proposals applied to CACFP:
Added Sugars: USDA proposed updating the current CACFP
total sugars limits for breakfast cereals and yogurt to added sugars
limits, consistent with the proposed limits for breakfast cereals and
yogurt in the school meal programs.
Whole grains definition: USDA proposed adding a definition
of ``whole grain-rich'' to CACFP regulations, consistent with the
definition USDA proposed adding in school meal regulations.
Menu Planning Options for American Indian and Alaska
Native Students: USDA proposed to allow CACFP institutions and
facilities serving primarily American Indian or Alaska Native children
to substitute vegetables for grains. This proposal also applied to
NSLP, SBP, and SFSP.
Nuts and Seeds: USDA proposed to allow nuts and seeds to
credit for the full meats/meat alternates component in all child
nutrition program meals and snacks. This proposal applied to NSLP, SBP,
SFSP, and CACFP.
Geographic Preference: USDA proposed to expand geographic
preference options by allowing ``locally grown, raised, or caught'' as
procurement specifications for unprocessed or minimally processed food
items in the child nutrition programs. This proposal applied to NSLP,
SBP, SFSP, and CACFP.
Miscellaneous Changes: USDA proposed to change the name of
the ``meats/meat alternates'' meal component to ``protein sources'' in
CACFP, consistent with the proposed change in NSLP and SBP. USDA also
proposed a few other minor terminology changes and meal pattern table
revisions that impact CACFP.
Proposals from Prior USDA Rulemaking: USDA signaled its
intent to finalize a prior proposal that would update meal modification
regulations for disability and non-disability reasons, impacting NSLP,
SBP, and CACFP. USDA signaled its intent to finalize a prior proposal
regarding a technical correction for nutrient requirements for fluid
milk substitutes, impacting NSLP, SMP, SBP, and CACFP.
With the exception of the proposal to change the name of the
``meats/meat alternates'' meal component to ``protein sources'' in
CACFP, which is not finalized, all of the proposed changes to CACFP are
finalized in this rulemaking.
USDA received over 90 comments from CACFP sponsoring organizations.
USDA also received comments from advocacy groups representing the CACFP
community, and hundreds of form letters from individuals who are a part
of the CACFP community. An advocacy group recommended that USDA engage
CACFP stakeholders before finalizing and implementing the rule. This
respondent argued such engagement is necessary to understand the rule's
impacts on CACFP, including costs, product availability, and
nutritional quality. Another advocacy group emphasized the importance
of supporting efforts to stabilize the CACFP workforce. This respondent
recommended delaying implementation to ensure that the CACFP community
has time to prepare for implementation and provide input on the
proposed changes.
Specific feedback from the CACFP community is detailed in the
relevant sections throughout this preamble. At a high level, concerns
raised by the CACFP community include:
Potential impact on training, technical assistance, and
resource development, especially related to the proposed terminology
change for the meats/meat alternates component.
Potential costs associated with updating websites,
materials, menus, and recipes.
The need for implementation support for the proposed
changes, such as the need for tools and resources to
[[Page 31970]]
successfully implement the proposed added sugars limits for yogurt and
cereal. Specifically, one advocacy group recommended USDA develop an
``approved'' list of products that could be offered under the added
sugars limits.
An overall concern that the proposed rule lacked a ``CACFP
lens,'' and therefore did not adequately consider its potential impact
on the CACFP community.
The CACFP community also raised concerns about other challenges
facing operators that were outside the scope of the proposed rule. For
example, respondents noted ongoing pandemic recovery, staff shortages,
and vendor losses, and the loss of pandemic-era funding and
flexibilities. Respondents emphasized the importance of supporting
CACFP, which one advocacy group described as a ``financial and
nutritional lifeline'' for many children and families. Other
respondents agreed, noting that CACFP plays a ``vital role in
supporting good nutrition'' and providing ``quality affordable child
care'' for families.
USDA Response: USDA appreciates public comments received on behalf
of the CACFP community and agrees that CACFP operators play a vital
role in supporting the goals of child nutrition programs. USDA
acknowledges that the listening sessions conducted prior to the
development of the proposed rule were primarily focused on nutrition
requirements for school meal programs, given that the majority of the
provisions in the proposed rule relate to NSLP and SBP. However, many
of the organizations that USDA engaged with through these listening
sessions also advocate on behalf of CACFP and/or SFSP operators, in
addition to school meals. USDA also received over 8,000 comments on the
transitional standards rule, including comments related to CACFP, which
were considered in the development of the proposed rule. Public
comments submitted in response to the 2023 proposed rule, including
those submitted by the CACFP community, were also crucially important
to the development of this final rule. As emphasized throughout the
proposed rule, USDA greatly values this feedback. USDA has responded to
the CACFP community's feedback in the subsequent sections of the rule,
especially Section 2: Added Sugars and Section 20: Miscellaneous
Changes.
Public Comments: Supplemental Nutrition Assistance Program
Several respondents raised concerns about the Supplemental
Nutrition Assistance Program, or SNAP, a USDA Federal assistance
program. While comments related to SNAP are outside the scope of this
rulemaking, USDA is providing a summary of the comments here.
Respondents were concerned that SNAP does not impose the same nutrition
requirements as USDA's child nutrition programs. These respondents
asserted that students, including those participating in SNAP, are
exposed to unhealthy food outside of school. Some respondents argued
that all Federal nutrition programs, including SNAP, should have the
same nutrition requirements. For example, a dietitian suggested that if
USDA finalizes added sugars limits for school meals, those limits
should also apply to SNAP.
USDA Response: USDA appreciates public comments about SNAP and its
relation to the Department's other Federal assistance programs,
including the child nutrition programs. USDA's mission is to increase
food security and reduce hunger by providing children and income
eligible people access to food, a healthful diet, and nutrition
education in a way that supports American agriculture and inspires
public confidence. Within that mission, USDA administers 16 critical
nutrition assistance programs, one of which is SNAP, the Nation's
largest domestic food and nutrition assistance program for income
eligible Americans. SNAP is the primary source of nutrition assistance
for millions of people each month, and SNAP participants can purchase a
variety of eligible foods items, as defined by statute.\27\ USDA is
committed to helping SNAP participants and all Americans make healthier
food choices through evidenced-based nutrition education. SNAP-Ed is an
evidenced-based, federally funded grant program that supports SNAP
participants with nutrition education to help participants maximize
benefits and make healthy food choices to promote nutrition security.
In USDA's most recent analysis of food purchases by SNAP and non-SNAP
households,\28\ SNAP households and non-SNAP households purchased
similar types of foods, such as fruit, vegetables, and milk. This
affirms that SNAP households are purchasing similar types of nutrient-
dense foods compared to non-SNAP households. Additionally, USDA
encourages healthy eating for SNAP participants through incentive
programs, which provide additional ways to make healthy choices, such
as purchasing fruits and vegetables, easier for SNAP participants.
Recent research \29\ shows that participants of the Gus Schumacher
Nutrition Incentive Program (GusNIP) reported greater fruit and
vegetable intake and improvements in food security. Similarly, in a
Healthy Incentive Pilot (HIP) report,\30\ participants spent more SNAP
benefits on fruits and vegetables than non-HIP households. SNAP
incentive programs, along with all USDA Federal nutrition assistance
programs, play an important role in making nutritious foods more
accessible and affordable. While there are differences across the
programs, each of USDA's Federal nutrition assistance programs are
critical to advancing nutrition security and promoting healthy dietary
patterns.
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\27\ See: Section 3(k) of the Food and Nutrition Act of 2008 (7
U.S.C. 2012(k)).
\28\ U.S. Department of Agriculture. Foods Typically Purchased
by Supplemental Nutrition Assistance Program (SNAP) Households.
November 18, 2016. Available at: https://www.fns.usda.gov/snap/foods-typically-purchased-supplemental-nutrition-assistance-program-snap-households.
\29\ GusNIP NTAE. Gus Schumacher Nutrition Incentive Program
(GusNIP): Impact Findings Y3: September 1, 2021 to August 31, 2022.
Prepared for U.S. Department of Agriculture, National Institute of
Food and Agriculture; 2023. Available at: https://nutritionincentivehub.org/gusnip-ntae-y3-impact-findings.
\30\ U.S. Department of Agriculture. Evaluation of the Healthy
Incentives Pilot (HIP) Final Report. September 2014. Available at:
https://www.fns.usda.gov/snap/hip/final-evaluation-report.
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Section 2: Added Sugars
Current Requirement
Currently, there are no added sugars limits in the school meal
programs. Under the current regulations, schools may choose to serve
some menu items and meals that are high in added sugars, provided they
meet average weekly calorie limits (7 CFR 210.10(f)(1) and
220.8(f)(1)).
The Dietary Guidelines for Americans, 2020-2025 recommends limiting
intake of added sugars to less than 10 percent of calories per day.
School meal data from school year (SY) 2014-2015 found that the average
percentage of calories from added sugars in school meals was
approximately 11 percent in school lunch and 17 percent in school
breakfast.\31\ The Dietary Guidelines further indicate that 70 to 80
percent of all school-aged children exceed the recommended limit for
added sugars.\32\ The current calorie requirements for the school meal
programs are intended to encourage schools to choose nutrient-dense
foods and beverages. However,
[[Page 31971]]
USDA determined that a specific added sugars requirement would more
effectively reduce added sugars in school meals, consistent with the
goals of the Dietary Guidelines.
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\31\ Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals
and the Diets of School-Age Children. Nutrients. 2021; 13(2):471.
Available at: https://doi.org/10.3390/nu13020471.
\32\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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Proposed Rule
USDA proposed to reduce added sugars in school meals through a
gradual, phased-in, two-step approach: product-based limits followed by
a weekly dietary limit. First, beginning in SY 2025-2026, USDA proposed
to implement quantitative limits for leading sources of added sugars in
school meals. The proposed product-based limits were as follows:
Grain-based desserts: would be limited to no more than 2
ounce equivalents per week in school breakfast, consistent with the
current limit for school lunch. Examples of grain-based desserts
include cereal bars, doughnuts, sweet rolls, toaster pastries, coffee
cakes, and fruit turnovers.\33\
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\33\ U.S. Department of Agriculture, Food Buying Guide for Child
Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
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Breakfast cereals: would be limited to no more than 6
grams of added sugars per dry ounce.
Yogurt: would be limited to no more than 12 grams of added
sugars per 6 ounces.
Flavored milk: would be limited to no more than 10 grams
of added sugars per 8 fluid ounces or, for flavored milk sold as a
competitive food \34\ for middle and high schools, 15 grams of added
sugars per 12 fluid ounces.\35\
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\34\ Competitive food is a term to define all food and beverages
that are available for sale to students on the school campus during
the school day. (7 CFR 210.11(a)(2))
\35\ For clarification, USDA proposed a higher added sugars
limit for flavored milk sold as a competitive food in middle and
high schools due to the larger serving size. The serving size for
milk offered as part of a reimbursable meal is 8 fluid ounces. Milks
sold to middle and high school students as a competitive food may be
up to 12 fluid ounces.
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For the second step, beginning in SY 2027-2028, USDA proposed to
implement a dietary specification for added sugars. The dietary
specification would limit added sugars to less than 10 percent of
calories per week in the school lunch and breakfast programs. This
weekly limit would be in addition to the product-based limits described
above.
USDA requested public input on both steps as well as the following
questions:
USDA is proposing product-specific limits on the following
foods to improve the nutritional quality of meals served to children:
grain-based desserts, breakfast cereals, yogurt, and flavored milk. Do
stakeholders have input on the products and specific limits included in
this proposal?
Do the proposed implementation timeframes provide
appropriate lead time for food manufacturers and schools to
successfully implement the new added sugars standards? Why or why not?
What impact will the proposed added sugars standards have
on school meal menu planning and the foods schools serve at breakfast
and lunch, including the overall nutrition of meals served to children?
For consistency across child nutrition programs, USDA also proposed
to apply the product-based added sugars limits to breakfast cereals and
yogurt served in the CACFP; under the proposed rule, the added sugars
limits would replace the current total sugars limits for breakfast
cereals and yogurt in CACFP. The proposed product-based limits for
CACFP aligned with the proposed limits for school breakfast and lunch,
and were as follows:
Breakfast cereals: would be limited to no more than 6
grams of added sugars per dry ounce.
Yogurt: would be limited to no more than 12 grams of added
sugars per 6 ounces.
Public Comments
USDA received tens of thousands of comments on added sugars, with
most in support of reducing added sugars in school meals. State
agencies, school nutrition professionals, advocacy groups, industry
respondents, professional organizations, CACFP sponsoring
organizations, dietitians, and individual respondents, such as parents
and students, provided input on the proposals for added sugars. At a
high-level, respondents provided the following feedback on added sugars
requirements:
Limiting added sugars in school meals is important for
children's health and academic performance.
Product-based limits would incentivize the food industry
to reformulate products to help schools meet the weekly added sugars
limit.
Many respondents expressed a preference for one type of
limit over the other:
Some respondents suggested that product-based limits would
be easier and less burdensome for program operators to implement
compared to the weekly limit.
Other respondents asserted that weekly limits align with
recommendations from the Dietary Guidelines and would allow more
flexibility for menu planners compared to the product-based limits.
The following paragraphs describe specific feedback on the proposal
as well as feedback on each step of the proposal: product-based limits
and weekly limits.
Reducing Added Sugars and Children's Health
Numerous respondents, including advocacy groups, school districts,
school nutrition professionals, parents, and a few form letter
campaigns, supported added sugars limits in school meals. Several
advocacy groups justified limits on added sugars based on the
recommendations from the Dietary Guidelines. One advocacy group
asserted that reducing added sugars is ``urgent'' because children's
current intake of added sugars is high. Other proponents reasoned that
implementing added sugars limits in school meals would be beneficial to
children's health. An advocacy group applauded the proposal because it
makes a distinction between naturally occurring and added sugars and
creates an incentive to reduce added sugars in ``hyper-processed
products.'' A few parents emphasized that reducing added sugars is a
top health priority. One parent strongly supported the proposed limits,
stating that currently, ``children who rely on school meals [have] no
option but to eat sugary breakfasts.'' An individual cited multiple
studies demonstrating the negative impacts of added sugars on health,
and an advocacy group noted that consuming too many added sugars can
increase the risk of type 2 diabetes and heart disease. A few
individuals and a form letter campaign affirmed that reducing added
sugars may help address health disparities by improving the overall
nutritional quality of school meals.
Challenges With Reducing Added Sugars
Other respondents cited challenges with reducing added sugars in
school meals. A school district appreciated USDA's efforts but voiced
concerns that an added sugars limit would drastically reduce schools'
buying options. One school food service director claimed that school
meals are already low in sugar and that tracking added sugars would be
another standard to monitor. An industry respondent noted that if the
proposed rule is finalized, added sugars would be the only element in
the meal pattern ``with two prongs of compliance monitoring,'' as it
would be subject to both product-based and weekly limits. A dietitian
expressed concern about the palatability of meals, adding that
[[Page 31972]]
limiting added sugars could negatively impact student participation.
One individual supported reducing added sugars, but expressed concern
that students will not like the food, which could increase food waste.
One industry respondent argued that the existing calorie ranges
``adequately control for sugar'' and schools ``should not be further
regulated'' with added sugars limits. Another industry respondent
opposed the proposed added sugars limits due to the cost of product
reformulation. An advocacy group also raised concerns about product
reformulation, noting that each time a food producer needs to change
the specifications of a product, it can take up to three years and cost
as much as $750,000 per item. This respondent was concerned that some
manufacturers may choose to stop making school-specific items instead
of reformulating their products.
Proposed Approach: Product-Based Limits
Over 86,000 respondents, including 96 unique comments, supported
the proposed product-based limits in general; comment counts specific
to each product-based limit are detailed in each product-based comment
summary section, below. A school district suggested that product-based
limits would provide helpful benchmarks for initial added sugars
reductions. An industry respondent asserted that product-based limits
would help reduce added sugars in breakfast items. An individual
agreed, stating that limiting high-sugar breakfast items would support
children in the classroom as well. This respondent explained that
breakfasts that are high in sugar do not provide sustainable energy for
students to focus in the classroom. A professional organization stated
that product-based limits would promote ``progress toward more nutrient
dense'' foods, and that the phased-in approach would allow schools and
manufacturers time to ``learn and adapt.''
Other respondents supported the product-based limits but did not
support the weekly limit. For example, an advocacy group affirmed that
the product-based limits would be easier for schools operationally,
noting that CACFP sponsoring organizations have successfully
implemented product-based limits for breakfast cereals and yogurt. This
advocacy group stated that product-based limits would better align
child nutrition program requirements and reduce administrative burden.
A State agency suggested that the proposed product-based limits would
help to educate the public about the health impacts of added sugars.
However, this State agency did not support the weekly limit, asserting
that it may be burdensome for schools. A school district also preferred
the product-based limits over the weekly limit, suggesting that
product-based limits would be easier to implement after schools
overcome the initial burden of identifying compliant products. An
advocacy group agreed, maintaining that the product-based limits are
necessary to reduce added sugars at breakfast, but noting that the
weekly limit would ``negatively impact school meal menu planning.'' An
industry respondent described the product-based limits as ``appropriate
tools to reduce consumption of added sugars,'' and argued that an
additional weekly limit would be ``duplicative.''
About 100 respondents, including 81 unique comments, opposed
proposed product-based limits in general; comment counts specific to
each product-based limit are detailed in each product-based comment
summary section, below. A food service director opposed the proposed
limits for school breakfast specifically, describing breakfast as an
important meal and suggesting that some added sugar encourages students
to eat breakfast. An individual stated that product-based limits would
decrease the availability of grab-and-go meals and would reduce overall
breakfast participation. Several respondents, including industry
respondents, school districts, and dietitians, added that product-based
limits would hinder alternative breakfast models (e.g., breakfast in
the classroom) because pre-packaged, grain-based desserts are more
commonly offered in these models. A dietitian claimed that even though
some popular whole grain products served at breakfast contain added
sugars, the nutritional benefits of these foods ``outweigh the sugar
content.'' A State agency agreed that breakfast cereals, yogurt, and
flavored milks provide ``numerous essential nutrients'' and raised
concerns about the potential negative impacts of decreased consumption
under the product-based limits. A few school districts expressed
concerns about increased costs. An industry respondent asserted that
product-based limits are ``too prescriptive and unnecessarily
complicate the nutrition standards.'' Instead of requiring the product-
based limits, a State agency suggested USDA partner with K-12 food
manufacturers to work toward implementation of voluntary, product-based
added sugars limits.
Proposed Product-Based Limit: Grain-Based Desserts at Breakfast
Over 900 respondents supported the proposed limit for grain-based
desserts in school breakfast, including 20 unique comments. A parent
applauded limits for grain-based desserts at breakfast, suggesting that
they would ``encourage more nutrient-dense choices.'' An individual
supported limits on grain-based desserts, asserting that schools can
``find healthier ways to serve breakfast.'' A school nutrition
professional agreed, supporting a limit on ``desserts [and] sweet
entr[eacute]es during breakfast.'' An advocacy group explained that
applying the current school lunch limit for grain-based desserts to
school breakfasts (i.e., the ability to offer up to 2 ounce equivalents
of grain-based desserts per week) would help simplify menu
requirements.
Over 700 respondents opposed the proposed limit for grain-based
desserts in school breakfast, including 85 unique comments. Many
opponents stated that grain-based desserts are popular among students
and that limiting these foods may impact student breakfast
participation. An individual raised concerns that schools have few
options at breakfast and reducing grain-based desserts would further
limit menus. An advocacy group noted that currently, schools offer a
variety of grain items at breakfast to promote participation, for
example, by including whole grain-rich toaster pastries and whole
grain-rich cereal bars daily, along with whole grain donuts and whole
grain cinnamon rolls on occasion. This respondent maintained that the
proposed rule would severely limit schools' ability to serve these
popular items at breakfast. A school district noted that convenient,
on-the-go grain items are important options for students who attend
morning tutoring to recover from learning loss following the COVID-19
pandemic.
Several respondents cited confusion about the definition of
``grain-based dessert'' as described in Exhibit A: Grain Requirements
for Child Nutrition Programs of the Food Buying Guide.\36\ An industry
respondent argued that under current policy, grain-based desserts are a
``list of foods with no explanation of what sets them apart from other
grain foods.'' This respondent noted this list includes a wide range of
foods that can differ
[[Page 31973]]
vastly in added sugars content. Additionally, this respondent suggested
that under the proposed rule, manufacturers would have little incentive
to reduce added sugars in grain-based desserts, since these products
would still face ``strict limitations,'' regardless of their added
sugars content. A State agency noted that items such as cereal bars are
not typically identified as ``desserts'' outside of the child nutrition
programs and encouraged USDA to reevaluate the food items that are
considered grain-based desserts. A form letter campaign agreed,
pointing out that many items considered to be grain-based desserts are
offered as part of a balanced breakfast at school or at home. A State
agency requested clarification on what the proposed grain-based dessert
limit for school breakfast would mean for preschool meals, noting that
the meal pattern currently does not allow any grain-based desserts to
be offered to preschoolers.
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\36\ U.S. Department of Agriculture, Food Buying Guide for Child
Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
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Proposed Product-Based Limit: Breakfast Cereals
Over 900 respondents supported the proposed product-based added
sugars limit for breakfast cereals, including 20 unique comments. Many
respondents supported the proposal for breakfast cereals without
providing additional rationale. A State agency affirmed that there are
plenty of breakfast cereals that already meet the proposed product-
based limit. This State agency also suggested that the implementation
date would provide sufficient time for manufacturers to decrease added
sugars in non-compliant breakfast cereals. Another State agency
supported limiting added sugars in breakfast cereals but recommended
increasing the limit to 8 or 9 grams per dry ounce, instead of the
proposed 6 grams per dry ounce.
About 50 respondents opposed the proposed product-based limit for
breakfast cereals, including 33 unique comments. A school nutrition
professional and several school districts expressed concern that the
product-based limit for breakfast cereals would severely limit variety.
An industry respondent claimed that they provide numerous breakfast
cereal options that are inexpensive, convenient, and popular with
students, and argued that the product-based limit is not necessary
because the weekly limit would effectively limit breakfast cereals that
are high in added sugars. This respondent stated that their school
breakfast cereals provide less than 8 grams of added sugars per
serving, but that the product-based limit would limit their options for
schools to only two cereals. A school district argued that the
breakfast cereals that meet the proposed product-based limit are not
preferred by students.
Proposed Product-Based Limit: Yogurt
Nearly 1,000 respondents supported the proposed product-based added
sugars limit for yogurt, including 24 unique comments. An industry
respondent suggested that ``many options on the market meet the
proposed limit'' for yogurt (12 grams of added sugars per 6 ounces).
This respondent noted that manufacturers have greater ability to
formulate yogurts that meet a product-based limit, as opposed to a
weekly limit. Another industry respondent suggested that some yogurts
would meet the proposed product-based limit, while others would not,
potentially requiring reformulation. A parent who supported the
product-based limit suggested that yogurt could be sweetened with fruit
instead of added sugars. A professional organization noted that most
yogurt served in their program already meets the proposed product-based
limit and described it as ``realistic for manufacturers and programs.''
Forty respondents opposed the proposed product-based added sugars
limit for yogurt, including 21 unique comments. A CACFP sponsoring
organization asserted that it would limit the yogurt that program
operators can offer and only allow varieties that ``children will not
want to eat.'' A State agency described the proposed limit as
``confusing,'' noting that most yogurt comes in 4-ounce packages and
schools would need to ``do culinary math'' to determine how to apply
the limit, which was for 6-ounce packages. An industry respondent
suggested that yogurt products should be allowed to have various levels
of sugars so that schools have more flexibility in selecting products.
One school district shared that yogurt varieties that are currently
popular with students at breakfast would not meet the product-based
limit. This respondent raised concerns that, under the proposed limit,
certain varieties of yogurt would be eliminated from their menus and
there would be ``limited choices for replacements.''
Proposed Product-Based Limit: Flavored Milk
Over 900 respondents supported the proposed product-based limit for
flavored milks, including 44 unique comments. A State agency maintained
that they did not expect the flavored milk limit to be an issue, as
dairy suppliers are already working to reduce added sugars in flavored
milks. Another State agency and two professional associations also
supported the proposed limits, and one of these professional
associations noted that most milk producers already meet the proposed
limit. A school district confirmed that flavored milks currently
offered in their district meet the proposed added sugars limit. An
industry respondent suggested that the proposed product-based limit for
flavored milks is ``likely achievable'' but cautioned that some
reformulation efforts to reduce added sugars have started to impact
palatability. An advocacy group recommended applying the added sugars
limits for flavored milks to SMP and CACFP ``to ensure maximum positive
impact on child health.''
Fifty respondents opposed the proposed product-based limit for
flavored milks, all of which were unique comments. A State agency
suggested that the product-based limit for flavored milks ``may not be
necessary and may cause difficulties for schools lacking access to
multiple options.'' This State agency pointed to existing efforts in
the dairy industry to reduce added sugars in flavored milks, including
the International Dairy Foods Association's recent commitment to lower
added sugars in flavored milks available in schools.\37\ While
acknowledging the great improvement, the State agency noted that,
depending on their location, some rural schools may not have access to
flavored milk options that meet the proposed limit. Another State
agency expressed concern about the proposed limit, noting that
producers in their State currently offer a fat-free, flavored milk with
11 grams of added sugars per 8 fluid ounces. This State agency
questioned whether it would be worth the financial burden for this
producer to reformulate their product to reduce added sugars by 1 gram
and meet the proposed 10 grams of added sugars per 8 fluid ounces
limit. Another State agency mentioned a milk distributor
[[Page 31974]]
that currently has a flavored milk option with 13 grams of added sugars
per 8 fluid ounces. Numerous respondents provided additional input on
flavored milks, which is detailed in Section 3A: Flavored Milk.
---------------------------------------------------------------------------
\37\ In April 2023, the International Dairy Foods Association
announced its ``Healthy School Milk Commitment.'' According to a
press release from the International Dairy Foods Association,
``[b]eginning with the 2025-2026 school year, 37 school milk
processors representing more than 90% of the school milk volume in
the United States commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar per 8 fluid ounce
serving.'' See: International Dairy Foods Association. IDFA
Announces `Healthy School Milk Commitment' to Provide Nutritious
Milk with Less Added Sugar for Students in Public Schools,
Surpassing USDA Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
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Product-Based Limits: Impact on Child and Adult Care Food Program
USDA also received feedback from the CACFP community about how the
proposed product-based limits for breakfast cereals and yogurt would
affect CACFP. Several respondents opposed any changes to current CACFP
total sugars limits, citing the potential burden of implementing the
change and the operational differences between school meals and CACFP.
For example, an advocacy group suggested that USDA's review of
breakfast cereals and yogurt, which focused on products for K-12
schools, did not necessarily reflect the yogurt products available to
CACFP operators. An industry respondent agreed, adding that there may
be ``little to no demand for these products in grocery stores,'' and
products that are commonly served in schools may not be available in
the broader food supply. Another industry respondent suggested that the
proposed change for yogurt could impact the type of yogurt available in
CACFP, resulting in ``less preferred yogurt types'' offered in the
Program.
An advocacy group asserted that making major changes to CACFP
nutrition requirements to ``streamline'' work for schools is ``a
mistake'' and recommended USDA further engage the CACFP community prior
to finalizing the proposed breakfast cereal and yogurt added sugars
limits in CACFP. This respondent added that CACFP providers use other
Federal assistance programs, rather than school meals, as their point
of reference. Another advocacy group noted that for breakfast cereals,
the proposed change from 6 grams of total sugars per dry ounce to 6
grams of added sugars per dry ounce would effectively increase the
total sugar allowance. This respondent raised concerns about children's
health and did not support what they considered to be a more lenient
requirement. A State agency suggested applying the current CACFP total
sugars limits for breakfast cereals and yogurt to school meals, instead
of finalizing the proposed changes.
Other respondents supported applying the added sugars limits for
breakfast cereals and yogurt to CACFP. An industry respondent supported
transitioning total sugars limits to added sugars limits, arguing that
it ``appropriately reflects updated nutrition guidance.'' A dietitian
noted that CACFP operators have successfully implemented total sugars
limits and supported updating to added sugars limits because added
sugars are now consistently listed on the Nutrition Facts label. An
advocacy group agreed, suggesting that the updated Nutrition Facts
label provides the information CACFP providers would need to select
products, adding that there are numerous products in the marketplace
that meet the proposed added sugars limits. Another advocacy group
suggested that applying the proposed change to CACFP ``will simplify
standards for both industry and program operators.''
A form letter campaign supported the product-based limit for
breakfast cereals only if CACFP providers can continue to use a list of
allowable products provided by the Women, Infant and Children (WIC)
Program to identify breakfast cereals that are allowed in the CACFP.
Respondents explained that each State agency administering the WIC
program provides a list of allowable foods (WIC list) that meet program
nutrition requirements. A few advocacy groups highlighted the
importance of the WIC list, with one noting that the majority of CACFP
providers shop in retail stores and use the WIC list to easily identify
cereals that meet CACFP total sugars requirements. A State agency
agreed, describing the WIC list of approved breakfast cereals as ``an
important resource used by both the State agency and CACFP sponsoring
organizations.'' An advocacy group also highlighted the importance of
collaboration between CACFP and WIC, including shared materials and
messaging. An individual suggested that USDA develop its own ``approved
list'' of breakfast cereals and yogurt that child care providers
participating in CACFP could use to easily identify compliant products.
Respondents also offered additional suggestions for how USDA could
support the CACFP community in implementing the proposed changes, if
finalized. An advocacy group recommended that USDA provide tools and
resources to help CACFP providers identify allowable products. A CACFP
sponsoring organization encouraged USDA to provide flexibility to
operators and sites as they transition from current total sugars limits
to the proposed added sugars limits. An advocacy group noted that CACFP
sponsoring organizations would need ample time to retrain providers and
suggested that USDA provide additional funding to support nutrition
education, training, and material revisions at the local level. Another
advocacy group noted that family child care providers often run small
programs where they take on multiple roles including owner, caregiver,
meal preparer, and more. This respondent suggested that child care
providers may need additional time to implement the added sugars limits
for breakfast cereals and yogurt, noting that the changes will require
time, training, money, and technical assistance. However, a State
agency suggested that the proposed rule would provide adequate lead
time for CACFP operators to successfully implement the changes, noting
that the State would have time to train sponsoring organizations and
update technical assistance resources. However, the State agency
recommended that USDA implement the CACFP changes at the beginning of
the fiscal year, rather than the beginning of the school year, to match
the start of the CACFP program year.
Proposed Approach: Weekly Limits
Over 76,000 respondents, including 114 unique comments, supported a
weekly added sugars limit in the school lunch and breakfast programs--
the second step of USDA's proposal to reduce added sugars. A dietitian
supported the weekly limit, stating that it gives ``menu planners
creative freedom'' to develop a menu that incorporates foods that are
currently available in the K-12 market. Another respondent explained
that the weekly limit would give schools flexibility to occasionally
offer foods that are higher in added sugars, provided they are balanced
with foods that are lower in added sugars throughout the week.
Some respondents supported a weekly limit only and did not support
the product-based limits. For example, an advocacy group suggested that
a weekly limit would be easier to monitor, require less training, and
provide more flexibility for operators, while still reducing overall
intake of added sugars. This respondent suggested that all foods can
fit into a healthy diet, just in different amounts and frequencies. An
industry respondent also supported the weekly limit only, claiming that
product-based limits would cause additional burden to monitor and limit
student choice, which could reduce participation. Another industry
respondent agreed, suggesting that a 10 percent weekly limit in lunch
and breakfast programs provides flexibility for operators, maintains
options for students, and gives manufacturers time to reformulate. This
respondent argued that the product-based limits would ``reduce
opportunities for whole grain intake'' due to the limitation of popular
[[Page 31975]]
grains items that contain added sugars, such as granola bars. A school
district indicated that the weekly limit would be easier to implement
and track and allow schools to decide ``where to spend'' their added
sugars in lunch and breakfast menus. An advocacy group supported the
weekly limit and suggested the two-step approach would ``cause a lot of
confusion and be difficult to manage and document.''
Forty-eight respondents opposed the weekly limit, the majority of
which were unique comments. A school district argued that the weekly
limit would ``significantly increase administrative burden.'' A State
agency agreed, citing specific concern about the potential burden on
small, rural districts that do not use menu planning software and may
not have the staff capacity to calculate additional dietary
specifications. An industry respondent suggested that a weekly limit
may ``inadvertently lower the amount of yogurt and dairy'' offered in
school meals, which they asserted could decrease ``the nutritiousness
of meals.''
Two-Step Approach: Product-Based and Weekly Limits
Some respondents supported both steps of USDA's phased-in approach
to reduce added sugars in school meals and emphasized the importance of
the product-based and weekly limits. An advocacy group strongly
supported both proposals, noting that product-based limits alone would
not achieve dietary recommendations for added sugars. This respondent
emphasized the importance of implementing a weekly limit, while also
pointing out the benefits of product-based added sugars limits--
particularly for foods that are commonly served in school meals. A
professional association also supported the two-step approach,
suggesting that it would allow ``schools, food manufacturers, and
distributors time to learn and adapt.'' An advocacy group supported
both added sugars proposals, but acknowledged that between the two, a
weekly limit would be ``more effective'' to meet the Dietary Guidelines
recommendations. Another advocacy group described USDA's two-step
approach as ``balanced and practical'' and supported phasing in the
product-based limits, followed by the weekly limit. A group of Federal
elected officials applauded USDA's proposed ``gradual, phased-in
approach'' to reducing added sugars in school meals. An advocacy group
added that the ``combination of product-based and weekly limits are
especially important'' given children's current, excessive intake of
added sugars.
Proposed Implementation Timeframes
Over 300 respondents addressed the proposed implementation
timeframes, including 96 unique comments. Several respondents suggested
that USDA provide schools and industry more time for implementation. A
dietitian and a school nutrition director asserted that the product-
based limits do not provide manufacturers enough lead time and
emphasized that reformulating products takes time and money. A school
district stated that they ``have faith'' that manufacturers can reduce
added sugars over time and students will adapt, but they do not think
two years is adequate. This respondent was concerned about the
potential impact on student participation, noting the importance of
providing breakfast cereals and other food items that students enjoy. A
respondent who supported the proposals expressed concern that the
implementation timeline may not be long enough for small or rural
school districts that rely on smaller food distributors. One State
agency conducted a survey of child nutrition directors and NSLP
stakeholders and found that 75 percent of respondents did not feel the
proposed implementation dates were sufficient due to limited product
availability, supply chain challenges, and student acceptance.
A dietitian recommended lengthening the implementation timeline and
providing funding to manufacturers. This respondent was concerned that
manufacturers would ``quit the K-12 segment if they cannot comply''
with the limits. An industry respondent argued that, if manufacturers
do not have additional lead time, student participation may decrease
due to ``inadequate options.'' This respondent added that ``the school
nutrition ecosystem is simply too fragile'' to follow the proposed
timeline. A joint response from three industry respondents argued that
the proposed implementation dates would not provide enough time for
reformulation that ensures product quality and safety, given the
functional role sugar plays as an ingredient (e.g., preventing
spoilage, improving texture, and adding bulk). This response raised
concerns about student acceptability, student participation, and food
waste under the proposed implementation timeline. A dietitian suggested
that if manufacturers are not able to create products to meet the
proposed product-based limits, then the implementation dates should be
delayed.
An industry respondent maintained that added sugar reductions must
be tailored for each individual product, suggesting that timelines can
range from 12 to 16 months. This respondent added that schools
typically solicit bids for products one year in advance, adding at
least 12 months to the process. This industry respondent noted that
additional time for implementation would allow schools to update meal
planning databases, provide time to develop menu planning tools, and
help students gradually adjust to foods containing less added sugars. A
State agency relayed that manufacturers have expressed that SY 2027-
2028 would be a more realistic timeframe to implement breakfast cereal
and yogurt limits. An advocacy group acknowledged that timelines for
research and development vary and suggested that K-12 food companies
typically report needing 3 years to reformulate products. A State
agency also recommended providing at least 3 years after release of the
final rule to allow adequate time to update trainings, materials,
product formulations, and school menus. An individual suggested that
industry would need a minimum of 3-5 years to reformulate or develop
food items that meet the proposed limits. A State agency and an
industry respondent expected product reformulation to take up to 5
years. Another industry respondent asserted that the proposed
implementation dates for added sugars are too short and suggested the
reductions occur more gradually over the next 20 years or more.
Other respondents suggested the proposed implementation timeframes
were adequate, and some recommended accelerating timeframes in the
interest of children's health. An advocacy group affirmed that phased-
in implementation would allow adequate time to implement the new
requirements. Another advocacy group recommended implementing the
weekly added sugars limit alongside the product-based limits in SY
2025-2026. A State agency also suggested implementing the product-based
limits and the weekly limit at the same time, suggesting that 12-18
months would be a reasonable amount of time for industry and schools to
prepare for changes. A parent suggested implementing the added sugars
limits on a quicker timeframe, suggesting that the limits ``need to
happen now'' due to what they consider to be an excessive amount of
sugar in school meals. An advocacy group agreed, suggesting that USDA
implement the added sugars limits ``as soon as is feasible,'' noting
that these updates will be beneficial to children's health. Similarly,
a second advocacy group stated that USDA
[[Page 31976]]
should implement the weekly limit in the school year immediately
following release of the final rule. A local government supported both
added sugars limits and the proposed implementation timeline; this
respondent did not recommend extensions ``due to the urgency needed in
reducing consumption of added sugars among children.'' An advocacy
group and a few individuals asserted that ``there is no credible reason
for USDA to delay achieving the reduction in sugar consumption,''
requesting implementation of the added sugars limits by fall 2023.
A school nutrition professional suggested that the proposed
implementation date for the product-based limits would provide ``plenty
of time'' but claimed the weekly limit would be ``much harder'' to
achieve. This respondent noted that many rural districts currently do
not have nutrition software to facilitate implementation of a weekly
limit for added sugars. Similarly, a dietitian suggested that the
implementation date for product-based limits is achievable, provided
that the final rule is published at least one year in advance of
implementation (by July 1, 2024). The respondent suggested that this
timing would allow USDA and State agencies to provide technical
assistance and training. However, this respondent recommended delaying
implementation of the weekly added sugars limit to allow additional
time for product reformulation and menu revisions.
One respondent encouraged USDA to remove the product-based limits
and implement the weekly limit no later than 2025. By accelerating
implementation of the weekly limit in school lunch and breakfast
programs, this respondent suggested USDA could support healthier meals
for children who are currently in school. An industry respondent also
recommended removing the product-based limits while maintaining the
proposed implementation of SY 2027-2028 for the weekly limit.
Alternative Approaches Suggested by Comments
Some respondents offered alternatives to the proposals, or
suggested changes. For example, an industry respondent suggested that
USDA determine the product-based limits using the average added sugars
content of currently available products. A professional organization
recommended that USDA establish total sugars limits, rather than added
sugars limits, for breakfast cereals and yogurt because of the
naturally occurring sugar content of those foods. An individual
suggested that USDA reduce sugar content in school breakfast by
following Smart Snacks in School requirements for sugar.\38\ A few
advocacy groups suggested USDA require or recommend product-based
limits for condiments and toppings, noting that these products
contribute to children's intake of added sugars, especially at
breakfast.
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\38\ Regulations for competitive food service and standards are
found at 7 CFR 210.11.
---------------------------------------------------------------------------
Some respondents suggested alternatives to the proposed limit on
grain-based desserts in school breakfasts. A professional organization
and another respondent suggested that USDA prohibit (rather than limit)
grain-based desserts in the school meal programs to promote more
nutrient dense foods. A State agency recommended phasing in the grain-
based dessert limit by age/grade group, starting with K-5 children.
This State agency suggested this could help prevent a drastic drop in
participation among older students. A school nutrition professional
suggested that grain-based desserts should not be defined by the
product name, but by the amount of added sugars in the product. An
advocacy group also encouraged USDA to establish a quantitative added
sugars limit for grain-based desserts and suggested further reducing
the proposed added sugars limit for breakfast cereals.
An industry respondent suggested that if yogurt and flavored milks
are subject to product-based limits, they should be excluded from the
overall weekly limit. This respondent expressed concern that counting
yogurt and flavored milks in the overall weekly limit could create
``perverse and unintended incentives'' to remove these items from
meals. Another industry respondent suggested that USDA exempt the added
sugars in dried cranberries from the weekly added sugars limit. This
respondent argued that not providing an exemption for cranberry
products could discourage the consumption of products like cranberries
that include added sugar for processing and palatability.
A few respondents offered alternative suggestions for the weekly
added sugars limit. For example, a school nutrition director suggested
starting with a higher weekly dietary specification, such as 15
percent, and adjusting the percentage down as needed. This respondent
stated that a more gradual approach for the weekly limit would mirror
the proposed sodium reductions. Similarly, an advocacy group
recommended removing the product-based limits and instead, gradually
phasing in the weekly limit for lunch and breakfast meals. This
respondent recommended starting in SY 2025-2026 with a dietary
specification limiting meals to less than 25 percent of calories from
added sugars, and then implementing a 10 percent limit in SY 2027-2028.
A school district supported finalizing a 25 percent weekly limit in SY
2026-2027 and did not recommend further reductions. Another school
district recommended a weekly dietary limit of 35 percent of calories
from added sugars, with no product-based limits, beginning SY 2025-
2026.
However, an advocacy group stated that USDA ``should reject any
calls to set a limit higher than 10 percent'' because most children
would benefit from a diet with even fewer added sugars, as low as 4 to
8 percent. Another respondent argued that the proposed 10 percent limit
is ``still very high.'' An advocacy group agreed, recommending that
USDA take ``swifter and more far-reaching action'' by implementing a 6
percent weekly limit for added sugars. A local government recommended
that USDA apply the limit to both meals together (breakfast and lunch)
instead of applying the 10 percent weekly limit to each meal
separately. This respondent suggested this would increase the
feasibility of implementation, since breakfast foods typically
contribute larger amounts of added sugars. A school nutrition
professional suggested incentivizing--but not requiring--schools to
meet the 10 percent weekly limit.
Several respondents, including a national organization representing
tens of thousands of school nutritional professionals, recommended that
USDA make it easier for schools to offer meats/meat alternates in place
of grains at breakfast, which they argued would support reducing added
sugars in school breakfasts. This includes options suitable for grab-
and-go breakfast, such as protein-rich breakfast sandwiches and wraps.
A school district suggested many schools ``would love to be able to
offer eggs and sausage, or fruit and yogurt parfaits for breakfast,''
and requested that USDA remove the requirement to offer a minimum
amount of grains daily for breakfast. A dietitian recommended that USDA
require a meat/meat alternate at breakfast. A few industry respondents
maintained that the added sugars limit would ``create a drive in the
market to increase the protein content of breakfast items,'' noting
that the current grain minimum and cost constraints present a barrier
to offering meats/meat alternates at breakfast. Additional comments on
this topic, received in response to a prior
[[Page 31977]]
rulemaking, can be found in Section 6: Meats/Meat Alternates at
Breakfast.
Other Comments About Added Sugars
Respondents also submitted other comments about added sugars,
including comments related to sweeteners, which respondents used a
variety of terms to describe. A school nutrition professional raised
concerns that manufacturers would replace added sugars with
``artificial sweeteners'' when reformulating products to meet the
proposed limits. Similarly, a dietitian stated that while they support
reducing added sugars, food manufacturers would face challenges to meet
this requirement without using ``sugar substitutes.'' A school
nutrition professional suggested prohibiting ``non-caloric sweeteners
(both natural and artificial)'' in school meals, noting that there is
limited research on their long-term effects and expressed concern these
additives may cause stomach problems in young children. An individual
voiced similar concerns about ``low calorie sweeteners'' and suggested
prohibiting or labeling products so that parents or students can avoid
those food items, if desired.
A school district requested that the added sugars limits be
accompanied by an increase in reimbursement rates. This respondent
anticipated an increase in product costs as added sugars are replaced
with more expensive and healthier ingredients. One industry respondent
also shared financial concerns, suggesting that schools would need to
adjust menus by adding food items or increasing portion sizes to meet
calorie ranges if added sugars are reduced. This respondent suggested
one solution to this challenge would be to increase Federal funding.
Another industry respondent described the ``chronic underfunding of
school breakfasts'' and encouraged adequate resources to facilitate
schools offering nutritious breakfast items, such as fresh fruits and
vegetables. Although this respondent acknowledged their comment was
outside the scope of this rulemaking, they emphasized that funding
plays an important role in the types of foods that schools can offer
students.
A few advocacy groups encouraged USDA to provide sufficient time,
menu planning resources, and technical assistance to support
implementation of the added sugars limits. Specifically, some
respondents suggested USDA update its Team Nutrition resources for
reducing sugars in CACFP, if this requirement is finalized. A State
agency requested that USDA update Administrative Review guidance and
assessment tools, along with guidance on how schools can assess
compliance with the weekly limit. An advocacy group recommended that,
during implementation, schools should not be penalized and suggested
that USDA prioritize additional technical assistance and training for
schools that are struggling with compliance. A State agency provided
similar input, suggesting that USDA provide schools a ``grace period''
for corrective actions during the first Administrative Review cycle,
following implementation of the added sugars limits.
Final Rule
This final rule codifies the proposed added sugars limits in the
school lunch and breakfast programs, as follows:
Product-based limits: By SY 2025-2026, schools must
implement quantitative limits for breakfast cereals, yogurt, and
flavored milks. As explained below, this rule does not finalize the
proposed product-based limit for grain-based desserts at breakfast. The
product-based limits that are finalized in this rule are as follows:
Breakfast cereals are limited to no more than 6 grams of
added sugars per dry ounce.
Yogurt is limited to no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce).
Flavored milk is limited to no more than 10 grams of added
sugars per 8 fluid ounces. Flavored milk sold as a competitive food for
elementary school students will follow the 10 grams of added sugars per
8 fluid ounce limit, while flavored milk sold as a competitive food for
middle and high school students will be limited to 15 grams of added
sugars per 12 fluid ounces.\39\
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\39\ For clarification, the added sugars limit for flavored milk
sold as a competitive food in middle and high schools due to the
larger serving size. The serving size for milk offered as part of a
reimbursable meal is 8 fluid ounces. Milks sold to middle and high
school students as a competitive food may be up to 12 fluid ounces.
Milks sold to elementary school students as a competitive food may
be up to 8 fluid ounces, and so will follow the 10 grams of added
sugars per 8 fluid ounce limit.
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Weekly dietary limit: By SY 2027-2028, schools must
implement a dietary specification limiting added sugars to less than 10
percent of calories per week in the school lunch and breakfast
programs; this weekly limit will be in addition to the product-based
limits described above.
As proposed, this final rule also updates CACFP total sugar limits
for breakfast cereals and yogurt to align with the product-based added
sugars limits established for NSLP and SBP as stated above. Because
CACFP operates on a fiscal year calendar, these changes must be
implemented by October 1, 2025. For CACFP, the product-based added
sugars limits are as follows:
Breakfast cereals are limited to no more than 6 grams of
added sugars per dry ounce.
Yogurt is limited to no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce).
The existing total sugars limits for breakfast cereals and yogurt
in CACFP will remain in place until October 1, 2025, when the new added
sugars limits must be implemented. With State agency approval, CACFP
operators may choose to implement the added sugars limits for breakfast
cereals and yogurt early.
Two-Step Approach To Reduce Added Sugars in School Meals
USDA is committed to improving the nutritional quality of school
meals by establishing requirements that align with the goals of the
most recent Dietary Guidelines. USDA also acknowledges stakeholders'
concerns about added sugars in school meals and the harmful effects on
children's health. The two-step approach to reducing added sugars
finalized in this rule is expected to set schools up for success by
gradually decreasing added sugars over the next several years. USDA
acknowledges that, as noted in public comments, program operators need
sufficient time to prepare and plan menus to meet the new added sugars
limits. By first phasing in the product-specific limits for breakfast
cereals, yogurt, and flavored milk, USDA expects that schools will be
better positioned to successfully meet the weekly limits for added
sugars, which will take effect two school years after the effective
date of the product-based limits.
USDA intends for the product-based limits for breakfast cereals,
yogurt, and flavored milk to have a meaningful impact on the added
sugars offered in school meals. However, USDA recognizes that there are
other foods offered in school meals that contribute to children's
overall intake of added sugars, which makes the weekly dietary limit an
important second step to align school meals more closely with the goals
of the Dietary Guidelines. For example, USDA expects that added sugars
in condiments and toppings will be addressed through the weekly added
sugars limit, upon implementation. While USDA appreciates public
comments recommending product-based limits for condiments and toppings,
such limits were not included in the proposed rule and this final rule
does not establish product-based added
[[Page 31978]]
sugars limits for these items. USDA expects that the overall weekly
limit will help to reduce the amount of added sugars offered in
condiments and toppings. Additionally, although this rule does not
finalize the grain-based dessert limit at breakfast, USDA expects that
schools will select grains with less added sugars to meet the weekly
added sugars limit at breakfast and, as explained below, USDA will
provide resources to support more nutrient-dense choices at breakfast.
USDA is also interested in additional stakeholder input on how to
improve and simplify its grain-based desserts requirements and will
solicit stakeholder input on grain-based desserts in the coming months.
USDA also acknowledges respondent concerns regarding the
palatability of meals with less added sugars and related concerns about
plate waste and student participation. However, USDA expects that
gradually phasing in these requirements will give schools time to
adjust menus and help children gradually adapt to meals with fewer
added sugars over time.
Added Sugars in the Child and Adult Care Food Program
For consistency, this final rule applies the product-based added
sugars limits for breakfast cereals and yogurt to the CACFP. Based on
public comment, USDA has adjusted the implementation date for CACFP to
follow the program calendar, which operates on a fiscal year rather
than a school year. Effective October 1, 2025, the added sugars limits
will replace the current total sugar limits for breakfast cereals and
yogurt in CACFP. The existing total sugars limits for breakfast cereals
and yogurt in CACFP will remain in place until October 1, 2025, when
the new added sugars limits take effect. However, with State agency
approval, CACFP operators may choose to implement the added sugars
limits for breakfast cereals and yogurt early.
As mentioned in public comments, CACFP operators have successfully
implemented product-based sugar limits, and this rule updates these
limits from total sugars to added sugars based on Dietary Guidelines
recommendations. Although some public comments recommended continuing
with total sugars limits, that approach would not be consistent with
the Dietary Guidelines recommendations. And, as noted, added sugars
information is now available on the Nutrition Facts label.\40\ USDA
recognizes that many stakeholders would like more consistent
requirements across child nutrition programs; this final rule supports
USDA's efforts to better align program requirements. Additionally, in
response to public comments, USDA clarifies that the per-ounce limit
for yogurt will be 2 grams of added sugars. While this clarification
applies to NSLP, SBP, and CACFP, it is most relevant to CACFP, where
smaller portions may be offered to younger participants and operators
will more often need to assess compliance with the added sugars limit
in serving sizes that are smaller than 6 ounces.
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\40\ Food Labeling: Revision of the Nutrition and Supplement
Facts Labels (81 FR 33741, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels. See
also: 21 CFR 101.9(c)(6)(iii).
---------------------------------------------------------------------------
CACFP operators provide vital nutrition that contributes to the
wellness of child and adult participants. USDA recognizes and
appreciates the important role CACFP operators play in helping child
and adult participants develop and sustain healthy habits in all stages
of life. USDA is committed to ensuring that CACFP operators have the
technical assistance and resources they need to be successful,
including implementing the changes in this rule.
Alignment With WIC Food Package Standards
In April 2024, USDA finalized revisions to the WIC food packages to
incorporate recommendations from the National Academies of Science,
Engineering, and Medicine (NASEM) in its 2017 scientific report,
``Review of WIC Food Packages: Improving Balance and Choice,'' and to
align the food packages with the Dietary Guidelines for Americans,
2020-2025. The WIC final rule, Special Supplemental Nutrition Program
for Women, Infants and Children (WIC): Revisions in the WIC Food
Packages,\41\ updated limits on total sugars, consistent with
recommendations in the NASEM report. This included establishing limits
on added sugars in breakfast cereals and yogurt that are consistent
with the limits in this final rule. CACFP operators may use any State's
WIC list to identify breakfast cereals and yogurt that may be offered
in CACFP. Both the WIC final rule and this final rule share the common
goal of reducing added sugars intake among child and adult participants
and promoting healthy dietary patterns. This cross-program alignment of
product-based limits for breakfast cereals and yogurt responds to
public comments that highlighted the benefits of allowing use of the
WIC list in CACFP by allowing CACFP providers to use the WIC list to
identify allowable breakfast cereals and yogurt. It also responds to
public feedback requesting that USDA streamline requirements across its
nutrition assistance programs.
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\41\ Special Supplemental Nutrition Program for Women, Infants,
and Children (WIC): Revisions in the WIC Food Packages (April 2024).
Available at: https://www.fns.usda.gov/wic/fr-041824.
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Additional Feedback Received in Public Comments
USDA appreciates public comments on alternative approaches for
reducing added sugars in school meals. A few respondents suggested a
stepwise approach for the weekly added sugars limit; for example, by
starting with 15 percent and then moving to a 10 percent weekly limit.
The intent of the product-based limit is to provide schools with a path
toward reaching the 10 percent weekly limit. Other respondents
recommended a weekly limit below 10 percent; however, a weekly limit
below 10 percent would go beyond recommendations in the current Dietary
Guidelines. In this final rule, USDA maintains the proposed weekly
added sugars limit of 10 percent of calories per week, averaged over
the week for lunch and breakfast programs, respectively. In public
comments, some respondents recommended combining lunch and breakfast
menus under the weekly limit. However, because other school meal
pattern requirements (including the other dietary specifications for
calories, saturated fat, and sodium) currently apply by program, USDA
does not view this as an operationally feasible suggestion. Regarding
exemption for certain foods from the weekly limit, USDA has determined
that establishing exemptions may impose unintended burden and
challenges in calculating and monitoring dietary specifications for the
entire menu. This final rule does not exempt any foods from the weekly
added sugars limit for school lunch or breakfast. USDA also
acknowledges comments that recommended adjusting other meal pattern
requirements, such as the calorie limits, as part of this change.
However, USDA did not propose changes to the calorie limits in school
meals and this final rule does not make changes to the calorie limits
for school meals.
Product-Based Limits for Breakfast Cereals, Yogurt, and Flavored Milk
USDA received hundreds of comments regarding the product-based
limits for breakfast cereals, yogurt, and flavored milks. For example,
some respondents recommended increasing the product-based added sugars
limit for breakfast cereals and raised concerns
[[Page 31979]]
about the availability of breakfast cereals that meet the proposed
limit that children enjoy. Similarly, USDA acknowledges respondent
concerns about product availability and the palatability of yogurt and
flavored milks that meet the product-based added sugars limits.
However, USDA agrees with respondents who stated that the added sugars
limits are realistic and that many breakfast cereals, yogurts, and
flavored milks that meet the final limits are or will be available to
schools. As discussed in the Regulatory Impact Analysis, based on data
that USDA collected in 2022, 50 percent of breakfast cereals and 57
percent of yogurts already met the added sugars limits finalized in
this rule in 2022.\42\ Regarding flavored milk, as noted in public
comments, the milk industry has committed to reducing added sugars in
flavored milk to levels that meet the limits finalized in this
rule.\43\ USDA appreciates public comments from industry that noted
significant progress in product reformulation and a variety of products
available in the market that already meet the product-based limits
finalized in this rule. Additionally, the gradual, phased-in approach
used in this rule will provide schools time to implement the changes.
---------------------------------------------------------------------------
\42\ USDA Food and Nutrition Service, Office of Policy Support
data collection of nutrition label information from major cereal and
yogurt manufacturer K-12 and food service catalogs. Data were
collected on 191 total cereal products and 110 total yogurt
products.
\43\ In April 2023, the International Dairy Foods Association
announced its ``Healthy School Milk Commitment.'' According to a
press release from the International Dairy Foods Association,
``[b]eginning with the 2025-2026 school year, 37 school milk
processors representing more than 90% of the school milk volume in
the United States commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar per 8 fluid ounce
serving.'' See: International Dairy Foods Association. IDFA
Announces `Healthy School Milk Commitment' to Provide Nutritious
Milk with Less Added Sugar for Students in Public Schools,
Surpassing USDA Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
---------------------------------------------------------------------------
Product-Based Limit for Grain-Based Desserts at Breakfast [Not
Finalized]
As noted above, USDA is not finalizing the proposed limit for
grain-based desserts at breakfast. Public comments raised concerns
about potential negative impacts of the proposal to the SBP, especially
to alternative breakfasts that often contain grab-and-go friendly
items, including grain-based desserts such as breakfast bars and
toaster pastries. Respondents were concerned about the availability and
student acceptance of alternative items that can readily be served in
grab-and-go and other alternative breakfast models. In addition, many
respondents raised questions about the definition of grain-based
desserts as currently used in the NSLP and CACFP \44\ or suggested
alternative approaches to current requirements for those programs.
Under current requirements, which define grain-based desserts by
product type, some grain items that are not classified as grain-based
desserts are higher in added sugars than items that are classified as
grain-based desserts. Some respondents suggested that rather than
defining grain-based desserts by product type, USDA should instead
define grain-based desserts based on the amount of added sugars in
specific products. For these reasons, many respondents recommended that
USDA reconsider the proposal. Therefore, in response to stakeholder
input, USDA is not finalizing the grain-based dessert limit for school
breakfast.
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\44\ For NSLP, according to 7 CFR 210.10(c)(2)(iii)(C)
(previously 7 CFR 210.10(c)(2)(iv)(C), schools may count up to two
ounce equivalents of grain-based desserts per week toward meeting
the grains requirement at school lunch. For CACFP, according to 7
CFR 226.20(a)(4)(iii), grain-based desserts do not count toward
meeting the grains requirement. The grain-based dessert requirements
for NSLP and CACFP remain in effect under this final rule.
---------------------------------------------------------------------------
USDA is committed to supporting alternative breakfast models, such
as breakfast in the classroom and grab-and-go breakfast, which support
student participation \45\ by making school breakfast more accessible.
USDA also appreciates concerns that the current definition of ``grain-
based dessert'' does not target grain products high in added sugar as
effectively as possible. Although some respondents raised concerns
about product-based limits for breakfast cereals, yogurt, and flavored
milk, those comments did not cite operational constraints for
alternative breakfast models under the proposed limits. Further, as
detailed above, USDA has determined adequate products will be available
to meet the product-based limits for breakfast cereals, yogurt, and
flavored milk finalized in this rule upon implementation.
---------------------------------------------------------------------------
\45\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M.
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student
Participation in School Meals in the United States: A Systematic
Review, Journal of the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, https://doi.org/10.1016/j.jand.2023.02.016. Available at: https://www.sciencedirect.com/science/article/pii/S221226722300103X.
---------------------------------------------------------------------------
USDA recognizes that reducing grain items that are high in added
sugars is one important strategy to support the phased-in
implementation of the weekly added sugars limit. USDA will continue to
support implementation of alternative breakfast models by highlighting
popular grain items that are low in added sugars and that are grab-and-
go friendly. Schools may also consider offering savory grab-and-go
breakfast items, such as breakfast sandwiches and wraps, to reduce the
overall added sugars content of school breakfasts. As discussed in
Section 6: Meats/Meat Alternates at Breakfast, this rule removes the
minimum grains requirement at breakfast, making it easier for schools
to offer meats/meat alternates at breakfast. In the absence of a grain-
based dessert limit at breakfast, schools may need additional support
and guidance to reduce added sugars at breakfast and meet the weekly
limit upon implementation in SY 2027-2028.
As discussed below, USDA will provide technical assistance to
ensure that schools have the resources they need to reduce added sugars
at breakfast, including meeting the weekly added sugars limit at
breakfast upon implementation. USDA also seeks to support industry in
producing breakfast grains which can be part of menus under the weekly
added sugars limit. The Department will provide voluntary guideposts
for schools and industry to use to assist them in transitioning to the
weekly added sugars limits in SY 2027-2028. This will include resources
that schools may use to identify grain items that are low in added
sugars.
USDA is very interested in and will solicit additional stakeholder
input on improving guidance around grain-based breakfast items. As part
of this effort, USDA will seek stakeholder input on the current grain-
based desserts requirements, alternative approaches to defining and
identifying grains that are high in added sugars, and other creative
ideas for how to address grain-based desserts in the child nutrition
programs. USDA looks forward to receiving stakeholder feedback on this
topic in the coming months.
Sweeteners
This final rule is focused on limits for added sugars, not other
sweeteners used as sugar substitutes or sugar alternatives. USDA
acknowledges respondent concerns regarding sweeteners in child
nutrition programs, referred to in public comments in a variety of
ways, including ``artificial sweeteners,'' ``non-nutritive
sweeteners,'' and ``sugar substitutes.'' \46\
[[Page 31980]]
Sweeteners, like all other ingredients added to food in the U.S. food
supply, must be safe for consumption under the Federal Food, Drug and
Cosmetic Act.\47\ FDA determines if food additives, such as sweeteners,
are safe for their intended use. FDA has approved six sweeteners as
food additives through an extensive evidence-based research
process.\48\ In addition to the six sweeteners approved as food
additives, there are three additional sweeteners that are Generally
Recognized as Safe (GRAS). USDA relies on FDA expertise to safeguard
the food supply because FDA is the Federal agency responsible for
assessing the safety of food additives, food ingredients, and
sweeteners, including artificial sweeteners and nonnutritive
sweeteners. Therefore, under this final rule, there are no restrictions
on sweeteners in school meals, such as the use of sugar substitutes and
nonnutritive sweeteners; this approach aligns with current FDA guidance
for sweeteners. However, at the local level, schools or districts may
opt to limit or remove sweeteners from their school lunch and breakfast
menus, which USDA recognizes that some localities have chosen to do.
Further, in response to stakeholder concerns about sweeteners, in
upcoming studies, USDA will include questions regarding school policies
relating to the use of sweeteners in school meals and will continue to
monitor FDA research and guidance on this issue.
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\46\ Although respondents used a variety of terms in public
comments, USDA will refer to ``sweeteners'' in this final rule,
consistent with FDA terminology. U.S. Food and Drug Administration,
How Sweet It Is: All About Sweeteners, June 9, 2023. Available at:
https://www.fda.gov/consumers/consumer-updates/how-sweet-it-all-about-sweeteners.
\47\ U.S. Food and Drug Administration, Aspartame and Other
Sweeteners in Food, July 14, 2023. Available at: https://www.fda.gov/food/food-additives-petitions/aspartame-and-other-sweeteners-food.
\48\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M.
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student
Participation in School Meals in the United States: A Systematic
Review, Journal of the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, https://doi.org/10.1016/j.jand.2023.02.016. Available at: https://www.sciencedirect.com/science/article/pii/S221226722300103X.
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Ongoing Support
USDA is committed to ensuring that child nutrition program
operators have ongoing support and will provide additional technical
assistance and resources to assist schools and child care institutions
and facilities as they prepare to implement and monitor new or updated
requirements. USDA appreciates public comments requesting guidance and
support for monitoring these changes and will update the nutrient
analysis software approved for use in Administrative Reviews so that it
includes a dietary specification for added sugars. As noted above, USDA
will provide resources to support schools and industry in transitioning
to the weekly added sugars limit in SY 2027-2028 and will make these
resources available in time to support procurement for SY 2025-2026.
USDA has already highlighted strategies that schools can use to reduce
added sugars in Best Practices for Reducing Added Sugars at School
Breakfast.\49\ For example, schools can:
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\49\ U.S. Department of Agriculture, Best Practices for Reducing
Added Sugars at School Breakfast, August 4, 2022. Available at:
https://www.fns.usda.gov/tn/best-practices-reducing-added-sugars-school-breakfast.
---------------------------------------------------------------------------
Reduce how often high-sugar foods and beverages are
offered during the week.
Use fruit to sweeten smoothies and yogurt instead of added
sugars.
Use cinnamon, vanilla, and other spices or extracts to
enhance recipes with less added sugars.
In public comments, many respondents suggested that meats/meat
alternates be allowed in place of grains to help reduce added sugars in
breakfasts. As discussed in Section 6: Meats/Meat Alternates at
Breakfast, schools may consider this option as a strategy to reduce
added sugars at breakfast, since some grain foods commonly offered in
school breakfasts tend to be higher in added sugars. Schools now have
the option to offer grains, meats/meat alternates, or a combination of
both, to meet the combined food component requirement in the SBP. This
change gives program operators greater flexibility in menu planning and
increases the variety of food items that can be served at school
breakfast, helping to address respondent concerns about meeting the
added sugars limits at breakfast. Local educational agencies may also
consider updating their local school wellness policies with strategies
to reduce added sugars in school meals and snacks. USDA also commends
industry efforts to reduce added sugars in their products, including in
flavored milk. For example, USDA understands that flavored milk
processors have already reduced the average amount of added sugars per
serving of flavored milk since announcing their ``Healthy School Milk
Commitment'' in April 2023.\50\ As suggested by comments, support from
industry is crucial to schools' efforts to continue to offer foods that
are popular with children and also fit within the product-based and
weekly limits phased in under this rulemaking.
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\50\ According to the International Dairy Foods Association,
``When the Commitment was announced in April 2023, flavored milk
products offered in schools contained an average of 8.2 grams of
added sugar per serving. By July 2023, the average had fallen to 7.6
grams of added sugar per serving.'' See: International Dairy Foods
Association, School Milk Is Critical to Child Nutrition--School Year
2023-2024. Available at: https://www.idfa.org/wordpress/wp-content/uploads/2023/09/Back-to-School-Milk-Fact-Sheet-2023_2024.pdf.
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USDA acknowledges public comments that requested increased funding
to support implementation of the added sugars limits. USDA does not
have authority to increase the Federal reimbursement rates for school
meals.\51\ However, USDA launched the HMI Initiative to improve the
nutritional quality of school meals through food systems
transformation, recognition, and technical assistance; the generation
and sharing of innovative ideas and tested practices; and grants. As
part of a cooperative agreement to develop and implement USDA's HMI
Initiative, AFHK is offering Recognition Awards for school food
authorities, including the Breakfast Trailblazer Recognition Award,
that will recognize school food authorities who implement specific
strategies to reduce added sugars in school breakfast menus, implement
an alternative meal service delivery model for breakfast, and use
student engagement techniques and/or culinary techniques to prepare
breakfasts that students enjoy. Public comments noted the importance of
student preferences and participation. Developing healthy dietary
patterns and taste preferences begins at a young age, and gradually
decreasing added sugars in school meals can contribute to developing
student preferences for more nutrient-dense foods, with less added
sugars, as recommended by the Dietary Guidelines. As part of the HMI
Initiative, AFHK will host Healthy Meals Summits, where award
recipients and grantees will share best practices and strategies for
sustaining their nutritional achievements, including successful
strategies to reduce added sugars. The summits will celebrate and
showcase creative strategies for serving healthy, appealing meals and
the best practices will serve as a blueprint for school food
authorities nationwide. USDA will also share strategies and success
stories for reducing added sugars in its communications materials and
will provide guidance and resources to schools working to reduce
[[Page 31981]]
added sugars in school meals in the months ahead.
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\51\ The annual payments and rates adjustments for the National
School Lunch and School Breakfast Programs reflect changes in the
Food Away From Home series of the Consumer Price Index for All Urban
Consumers. See: U.S. Department of Agriculture. Rates of
Reimbursement. Available at: https://www.fns.usda.gov/cn/rates-reimbursement.
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Assessing Impact of Added Sugars Limits
USDA recognizes the importance of monitoring progress toward the
new added sugars limits and assessing the effectiveness of the two-step
approach. USDA has a long history of examining the nutritional quality
of school meals through studies such as the School Nutrition and Meal
Cost Study and the School Nutrition Dietary Assessment Study series.
The 2024-2025 National School Foods Study will incorporate added sugars
into this assessment, which is based on an extensive menu survey,
designed to determine the food and nutrient content of school meals and
afterschool snacks, examine compliance with nutrition requirements, and
understand the characteristics of foods and beverages in reimbursable
meals.
These studies also assess actual student dietary intake and overall
diet quality through 24-hour dietary recall interviews. The 2024-2025
study will establish a ``baseline year'' (SY 2024-2025) for examining
the impact of the added sugars and sodium limits included in this
rulemaking.
In accordance with its commitment to regularly monitor how
consistent school meals are with the goals of the Dietary Guidelines,
USDA conducts the School Nutrition and Meal Cost Study on a five-year
cycle, which will provide another comprehensive assessment in SY 2029-
2030, after both the updated sodium limits and added sugars limits have
been fully implemented.
However, to monitor progress and provide data on the effectiveness
of product-based limits as a step toward meeting the overall weekly
added sugars limit, USDA will invest in an additional menu assessment
in SY 2026-2027, between the two School Nutrition and Meal Cost Study
cycles. This nationally representative survey will focus on the foods
and beverages that make up reimbursable meals and allow USDA to examine
the effect of the product-based added sugars limits, which will take
effect in SY 2025-2026. Additionally, this survey will allow USDA to
estimate both added sugars and sodium content of reimbursable school
meals.
Together these studies will provide USDA with critical evidence
about rule implementation, effects, and potential barriers and help
monitor changes in nutrient content of foods over time. This data will
provide invaluable insight into school meal nutrient composition and
student dietary outcomes. In addition, USDA will continue current
practice of using existing data sources--such as the National Health
and Nutrition Examination Survey--to periodically examine other
outcomes, including the relationship between estimated school meal
program participation, diet quality, indicators of nutrition and
health, food consumption patterns, and nutrient intakes. This in turn
can inform future policy and rulemaking.
Accordingly, this final rule codifies the product-based added
sugars limits for breakfast cereals, yogurt, and flavored milk, and
codifies the weekly dietary specification for added sugars in NSLP and
SBP regulations found at 7 CFR 210.10(b)(2)(iii), (c), (d)(1)(iii),
(f)(3), and (h) and 220.8(b)(2)(iii), (c), (d), and (f)(3). These
amendments must be implemented by July 1, 2025, except for the weekly
dietary specification, which must be implemented by July 1, 2027. This
final rule also replaces total sugar limits for breakfast cereals and
yogurt with added sugars limits in CACFP regulations found at 7 CFR
226.20(a)(4)(ii), (a)(5)(iii)(B), (b)(5), and (c). The CACFP amendments
must be implemented by October 1, 2025.
Section 3: Milk
This section includes the following sub-sections:
Section 3A discusses requirements for flavored milk in the
NSLP, SMP, SBP, and CACFP, and for milk sold [agrave] la carte (i.e.,
as a Smart Snack in School).
Section 3B provides an overview of comments that USDA
received in response to the proposed rule's request for input on fluid
milk substitutes in the child nutrition programs.
Section 3C discusses the nutrient requirements for fluid
milk substitutes.
Section 3A: Flavored Milk
Current Requirement
The National School Lunch Act (42 U.S.C. 1758(a)(2)(i)) requires
schools to offer students a variety of fluid milk at lunch; such milk
must be consistent with the most recent Dietary Guidelines. The Child
Nutrition Act (42 U.S.C. 1773(e)(1)(A)) requires school breakfasts to
meet the same terms and conditions set forth for school lunches in the
National School Lunch Act (42 U.S.C. 1758), including the requirements
for fluid milk. Current regulations at 7 CFR 210.10(d)(1)(i), 220.8(d),
and 210.11(m) allow schools to offer fat-free and low-fat (1 percent
fat) milk, flavored and unflavored, in reimbursable school lunches and
breakfasts, and for sale [agrave] la carte. The current regulations
also require that unflavored milk be offered at each school meal
service. Fat-free and low-fat milk, flavored and unflavored, may also
be offered to participants ages 6 and older in the SMP and CACFP (7 CFR
215.7a(a) and 226.20(a)(1)(iii)). Lactose-free and reduced-lactose milk
meet the meal pattern requirements for fluid milk (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). The current
milk requirements took effect on July 1, 2022.
Proposed Rule
USDA proposed the following two alternatives for milk requirements
in the school lunch and breakfast programs and invited public comment
on both:
Alternative A: Allow flavored milk (fat-free and low-fat)
at school lunch and breakfast for high school children only, effective
SY 2025-2026. Under this alternative, USDA proposed that children in
grades K-8 would be limited to a variety of unflavored milk. USDA also
requested public input on whether to allow flavored milk for children
in grades 6-8 as well as high school children (grades 9-12). Children
in grades K-5 would again be limited to a variety of unflavored milk.
Under both Alternative A scenarios, flavored milk would be subject to
the new proposed added sugars limit (10 grams of added sugars per 8
fluid ounces).
Alternative B: Continue to allow all K-12 schools to offer
fat-free and low-fat milk, flavored and unflavored, with the new
proposed added sugars limit for flavored milk (10 grams of added sugars
per 8 fluid ounces).
USDA also proposed a minor technical change to the regulatory text
for milk sold [agrave] la carte. Instead of repeating the allowable
milk types in 7 CFR 210.11(m), which describes the beverages that
schools can sell [agrave] la carte, USDA proposed to cross-reference 7
CFR 210.10(d). This change was intended to clarify that the NSLP milk
requirements apply to milk sold [agrave] la carte.
Public Comments
USDA received over 1,600 comments on flavored milk, including
almost 600 unique comments. Of these, over 1,500 supported flavored
milk, including about 375 unique comments. About 70 opposed flavored
milk, including about 50 unique comments. Additionally, specific
comment counts regarding Alternative A and Alternative B proposals are
described in more detail below. A wide range of stakeholders, including
State agencies, school nutrition professionals, advocacy groups,
industry respondents, professional associations, dietitians, parents,
and students commented on the proposed milk alternatives. At a high
[[Page 31982]]
level, respondents provided the following feedback on flavored milk:
Flavored milk is the leading source of added sugars in
school meals.
Offering flavored milk, which is a more palatable option
for some children, improves children's milk consumption and reduces
milk waste.
Milk is an important source of calcium, protein, and other
micronutrients.
USDA should consider operational constraints, such as a
lack of storage space for flavored milk, when determining which milk
alternative to finalize.
More detailed respondent feedback, including respondent input on
the two alternatives, is discussed below.
Alternative A: Allow Flavored Milk for Older Students Only
Fifty-five respondents, including 36 unique comments, representing
school nutrition professionals, parents, and advocacy groups, supported
Alternative A. A school nutrition professional suggested that
Alternative A would help transition students away from flavored milk
and reduce their consumption of added sugars. This respondent suggested
that after students who are currently in grades K-5 transition to
middle and high school, USDA could apply the limit to older children,
too. A parent agreed, asserting that water and unflavored milk are the
only beverages that young children should consume. A school nutrition
professional stated that, although flavored milk is the most popular
choice, the amount of added sugars in flavored milk is ``unnecessary
for our student's diets.'' This respondent argued that students are
already exposed to too much added sugars outside of school meals.
Another Alternative A proponent stated that flavored milk should be a
treat for younger students, not an everyday choice. An advocacy group
noted that flavored milk is a top contributor to added sugars intake
and that younger children overconsume added sugars at a higher rate
than older children.
Some respondents opposed flavored milk in school meals entirely.
Several advocacy groups recommended that USDA limit flavored milk
options for all grade levels. Many respondents urged USDA to limit
flavored milk to the greatest extent possible, citing that nutrients
found in milk are also found in other foods that are lower in added
sugars. An individual argued that flavored milk should not be served in
school meals because the added sugars ``cancels out any potential
benefits of consuming milk.'' A school district opposed flavored milk
and mentioned that flavored milk is not offered at any of their
schools. An advocacy group urged USDA to prohibit flavored milk in
school meals due to the harmful public health impacts of added sugars
consumption.
A few respondents addressed concerns about Alternative A's
potential impact on children's milk consumption. An advocacy group
cited research that found a ``modest decrease'' in student milk
consumption when flavored milk was removed from schools but noted that
the same study found ``no significant reductions in average per-student
intake of calcium, protein, or vitamin D from milk.'' The respondent
added that the same study found a decline in added sugars intake from
removing flavored milk. However, this advocacy group recommended that
USDA periodically monitor milk consumption and intake of milk-related
nutrients if Alternative A is implemented.
In addition to general feedback, USDA requested public input on the
following questions related to Alternative A:
Do respondents that support Alternative A have specific
input on whether USDA should limit flavored milk to high schools only
(grades 9-12) or to middle schools and high schools only (grades 6-12)?
If Alternative A is finalized with restrictions on
flavored milk for grades K-8 or K-5 in NSLP and SBP, should USDA also
pursue a similar change in SMP and CACFP?
Are there any special considerations USDA should keep in
mind for SMP and CACFP operators, given the differences in these
programs compared to school meal program operators?
In response to the first question, one industry respondent
supported limiting grades K-8 to unflavored milks only, if this change
is accompanied by a reduction in minimum required calories or an
increase in program funding. This respondent explained that when
omitting flavored milk, menus are significantly higher in cost due to
adding calories from other food groups to meet the required minimum
calories. A school district and a dietitian each supported removing
flavored milk from the school meal programs entirely but stated that if
USDA maintains flavored milk for some students, it should be limited to
grades 9-12 only. A few advocacy groups also supported limiting
elementary and middle schools to offering unflavored milk only. A few
other advocacy groups supported allowing flavored milk for grades 6-12
and limiting grades K-5 to unflavored milk only; one suggested that
this approach would give middle schools students, who are old enough to
make healthy food choices, the option to choose flavored or unflavored
milk.
Regarding the second question, over 100 respondents, including 34
unique comments, addressed whether USDA should pursue a similar change
in SMP and CACFP, if Alternative A is finalized for school meals. One
CACFP sponsoring organization did not support further restricting
flavored milk options in CACFP. A few advocacy groups representing
CACFP sponsoring organizations stated they ``categorically oppose''
Alternative A and that ``USDA should not pursue a similar change in
CACFP.'' Another advocacy group opposed limiting flavored milk to older
children only in the CACFP, asserting that ``acceptance of milk would
decrease'' if flavored milk is not permitted. A State agency also
opposed limiting flavored milk to older children only in the CACFP,
noting that some children participating in the afterschool component of
CACFP engage in physical activities, where flavored milk could be a
suitable recovery beverage. A CACFP sponsoring organization agreed,
suggesting that children who participate in their afterschool care
program prefer flavored milk.
However, a State agency supported implementing similar changes in
SMP and CACFP to support consistency in program requirements, if
Alternative A is finalized for school meals. An individual also
supported similar changes in SMP and CACFP, arguing that this would
help reduce added sugars intake and help establish healthy eating
patterns for young children. This respondent stated that special
considerations for these programs are ``unnecessary.'' A school
district also supported similar changes in SMP and CACFP ``for
consistent messaging and implementation.''
Alternative B: Continue To Allow Flavored Milk for All K-12 Students
About 800 respondents, including 180 unique comments, including
State agencies, school nutrition professionals, industry respondents,
and individuals, supported Alternative B. Many cited children's
preference for flavored milk as a key reason for supporting Alternative
B. For example, a school district shared that they serve 90 percent
flavored milk and 10 percent unflavored milk, and a dietitian asserted
that 95 percent of the children at their school drink flavored milk and
the children ``won't drink milk anymore'' if they only offer unflavored
milk. A school food service professional supported Alternative B
because a
[[Page 31983]]
majority of the milk they purchase (97 percent) is flavored milk and
they would ``rather students take some form of milk than none at all.''
Numerous other respondents agreed, claiming that flavored milk is
associated with higher milk consumption and student participation. One
respondent emphasized the importance of allowing choice and teaching
students how to consume all foods and beverages in moderation.
A national organization representing tens of thousands of school
nutrition professionals supported Alternative B, acknowledging that
``milk processers have significantly reduced added sugar[s]'' in
flavored milk served in schools. A school nutrition professional, a
parent, and other respondents also recognized the importance of
reducing added sugars, but maintained that student participation should
be a priority; thus, these respondents supported Alternative B.
Respondents also noted that flavored milk is an important source of
nutrients such as calcium and protein. A dietitian asserted that a
small amount of added sugars in milk helps students receive the
nutritional benefits of milk. One respondent claimed that children not
drinking milk is more ``detrimental to [student] health than added
sugars in flavored milk,'' and therefore supported continuing to allow
flavored milk for all K-12 students. Another respondent supported
lowering added sugars in flavored milks, but not restricting flavored
milks. Respondents also stated that restricting flavored milk may cause
students to consume other beverages, including sugary beverages like
soda and energy drinks.
Several respondents that supported Alternative B raised operational
concerns regarding Alternative A. A State agency suggested that many
rural schools have one building and may only have one milk cooler for
grades K-12. The State agency also noted that many schools serve meals
to students across grades in the same meal service (for example, grades
5-7 or grades 7-9) and it would be difficult for students to understand
if one grade can have flavored milk and others cannot. Similarly,
another State agency mentioned that some of their schools have grades
6-12 in one building, and ``changing out the milk adds one more task to
a busy lunch period.'' This respondent added that some schools do not
have extra refrigeration space to remove flavored milk from their milk
cooler during the meal service. A third State agency also noted that
schools in their State have many unique grade configurations, including
grades K-6, K-12, and 7-12. This State agency noted that it would be
``very burdensome'' for schools to move milk in and out of coolers
between meal services for different grades, and that the challenges of
implementing Alternative A would be even more difficult when different
grades are served during the same meal periods.
An individual noted that implementing Alternative A could be
difficult for school employees, who would be responsible for explaining
the change to families. A dietitian agreed, suggesting that Alternative
A would send a ``confusing message.'' A State agency cited concerns
about supply chain issues and prices, arguing that schools already have
limited choices, and further restrictions would negatively impact price
and availability. A school district raised purchasing concerns, noting
that purchasing for a large district is ``complicated'' and that
Alternative A could create more confusion for vendors. A State agency
suggested Alternative A would increase monitoring requirements. A
different State agency raised similar concerns, especially when
multiple grades share meal services. For example, this State agency
noted that differing milk requirements by grade level could create
challenges during an Administrative Review, as a reviewer would have to
inquire about a student's grade level when they are passing through the
lunch line, to ensure the student received a compliant milk.
Other Comments on Flavored Milk
Some respondents offered their own alternatives or suggested
changes to the milk requirements. For example, instead of finalizing
Alternative A, several respondents suggested limiting flavored milk to
lunch only and requiring unflavored milk at breakfast. One respondent
supported Alternative A, but for a different approach, suggested
allowing flavored milk only once per week for grades 9-12. A few
respondents, including an advocacy group and school districts,
recommended that USDA allow schools to choose which alternative to
implement.
Other respondents encouraged USDA to expand milk options beyond
fat-free and low-fat milk. For example, one school district suggested
USDA allow reduced-fat (2 percent), unflavored milk, arguing that this
option is more palatable for students. One respondent suggested
allowing whole milk in school meals, while another agreed and
specifically suggested allowing whole, flavored milk. A State elected
official encouraged USDA to allow reduced-fat and whole milk options,
asserting that this would increase milk consumption and reduce milk
waste. An industry respondent agreed, stating that they are confident
that the next edition of the Dietary Guidelines will ``look more
favorably on dairy at all fat levels.'' This respondent urged USDA to
allow reduced-fat and whole milk in school meals in anticipation of
what the industry respondent expects in the next Dietary Guidelines. A
dietitian suggested USDA consider ``increasing the allowable fat and
calories'' in milk options.
A State agency urged USDA to reconsider the requirement to provide
a variety of fluid milks (i.e., at least two options) with each meal
service. This respondent argued that the variety requirement leads to a
lot of waste. A school food service professional agreed, suggesting
that providing variety contributes to waste. This respondent stated
that ``skim [milk] is almost never chosen and ends up wasted.'' A
professional organization cautioned that limiting flavored milk options
could potentially effect meal participation and financial viability for
schools. A school district respondent requested that USDA increase
funding for Farm to School and equipment grant projects to support more
locally produced milk and bulk milk dispensers.
Final Rule
This final rule codifies the proposal to maintain the current milk
regulations, with minor technical changes, at 7 CFR 210.10(d),
220.8(d), and 210.11(l).\52\ Under this final rule, all schools
continue to have the option to offer fat-free and low-fat milk,
flavored and unflavored, to K-12 students, and to sell fat-free and
low-fat milk, flavored and unflavored, [agrave] la carte. Consistent
with current requirements, unflavored milk must be offered at each
school breakfast and lunch meal service. SMP and CACFP operators may
continue to offer fat-free and low-fat milk, flavored and unflavored,
to participants ages 6 and older. Additionally, as a reminder, lactose-
free and reduced-lactose milk will continue to meet the meal pattern
requirements for fluid milk under this final rule (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)).
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\52\ This final rule redesignates the paragraph outlining
requirements for competitive beverages, which was previously 7 CFR
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive beverage are outlined at
7 CFR 210.11(l).
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Under requirements established in this final rule for added sugars,
as discussed in Section 2: Added Sugars, flavored milk offered to K-12
students
[[Page 31984]]
in the NSLP and SBP and sold to students [agrave] la carte during the
school day must comply with the product-based added sugars limit. Under
this product-based limit requirement, effective SY 2025-2026, flavored
milk must contain no more than 10 grams of added sugars per 8 fluid
ounces, or for flavored milk sold [agrave] la carte in middle and high
schools, 15 grams of added sugars per 12 fluid ounces.
USDA is committed to ensuring that school meals provide children
with nutrient-dense foods and beverages that are consistent with the
goals of the most recent Dietary Guidelines. USDA recognizes that dairy
products, including fluid milk, provide a variety of essential
nutrients--some of which are underconsumed among school-aged children.
The decision to allow flavored, low-fat milk acknowledges concerns
expressed in public comments about declining milk consumption among
school-aged children. It also acknowledges the nutrients that milk
provides (e.g., calcium, vitamin D, and potassium), which remain
nutrients of public health concern for the general U.S. population
because they are underconsumed.\53\ Respondents expressed the
importance of considering milk palatability and acceptability when
establishing long-term requirements.
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\53\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Page 36. Available at:
DietaryGuidelines.gov.
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Many stakeholders raised concerns about the potential impact on
milk consumption if flavored milk options were limited under
Alternative A. USDA recognizes that both flavored and unflavored milk
provide children with key nutrients. Flavored milk has been shown to
encourage milk consumption among school-aged children,\54\ and public
comments from school nutrition professionals suggest that children may
select and consume flavored milk more often than unflavored milk. For
example, USDA research from SY 2014-2015 found that about 18 percent of
low-fat, flavored milk offered with school lunch was wasted, compared
to 35 percent of low-fat, unflavored milk.\55\ USDA acknowledges the
benefit of allowing flavored milk to be offered as a strategy to
promote milk consumption, a beverage that provides several nutrients
that are underconsumed during childhood and adolescence. Additionally,
many respondents stated that flavored milk is purchased in higher
quantities compared to unflavored milk, affirming that flavored milk is
a popular choice among students. Offering both flavored and unflavored
varieties of milk as part of a nutritious school meal may help to
minimize the gap between current and recommended intakes of key
nutrients among school-aged children and adolescents. For example, a
USDA study found that K-12 students who participated in NSLP were
significantly more likely to consume milk compared to students who did
not participate.\56\ Thus, the school meal programs remain a
contributing factor in influencing milk consumption among children.
USDA acknowledges the importance of allowing schools the option to
offer milk varieties that children will consume and enjoy.
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\54\ See page 58. Institute of Medicine, Nutrition Standards for
Foods in Schools: Leading the Way Toward Healthier Youth (``IOM
Report''). Available at: https://nap.nationalacademies.org/catalog/11899/nutrition-standards-for-foods-in-schools-leading-the-way-toward. See also: Mary M. Murphy et al., Drinking Flavored or Plain
Milk is Positively Associated with Nutrient Intake and Is Not
Associated with Adverse Effects on Weight Status in U.S. Children
and Adolescents.
\55\ See Table 5.1: Mean Percentage of Observed Trays including
Specific Foods and Mean Percentage of Observed Foods Wasted in NSLP
Lunches. U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study,
Final Report Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes, by Mary Kay Fox, Elizabeth Gearan,
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn,
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project
Officer: John Endahl. Alexandria, VA: April 2019. Available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
\56\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study
Volume 4: Student Participation, Satisfaction, Plate Waste, and
Dietary Intakes Appendix I-P. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
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USDA recognizes that some stakeholders supported limiting flavored
milk options under Alternative A. USDA appreciates public input on
Alternative A, which would have limited flavored milk offerings to
older students, in grades 9-12 or grades 6-12. Several respondents
acknowledged that Alternative A would help reduce the intake of
beverages with added sugars, especially for younger children. Advocacy
groups and parents also supported this alternative as a way to
transition students from flavored to unflavored milk and reduce their
consumption of added sugars. Conversely, other respondents raised
important concerns about the operational feasibility if Alternative A
were finalized. For example, one school district explained that some
schools serve multiple grades in a single meal service, and students
from grades K-12 may be in the cafeteria at the same time. These
schools may not have the opportunity or capacity to limit milk options
as children from different grade levels pass through the serving lines,
and would have to monitor student milk selections by grade level to
ensure compliance with Alternative A. A few State agencies added that
limiting flavored milk options by grade levels could be challenging to
monitor during Administrative Reviews. USDA acknowledges respondent
concerns that Alternative A could be difficult to implement and
monitor, especially for small schools or schools where students from
different grade levels share the same meal service. Due to the
variability in school size, grade level configurations, storage and
cafeteria space, and overall operations, USDA recognizes that
Alternative A could cause unintended operational and administrative
challenges for both schools and State agencies. USDA appreciates the
important concerns raised by stakeholders, particularly on behalf of
small schools, and considered this input in the final rule.
USDA recognizes that under this final rule, flavored milk will
continue to contribute to added sugars in school meals. However, as
noted in Section 2: Added Sugars, this rulemaking also finalizes a
product-based added sugars limit for flavored milk. By SY 2025-2026,
schools must implement a product-based limit for flavored milk of no
more than 10 grams of added sugars per 8 fluid ounces or, for flavored
milk sold as a competitive food for middle and high schools, 15 grams
of added sugars per 12 fluid ounces. In SY 2027-2028, this rule will
also implement an overall weekly limit for added sugars of less than 10
percent of calories per week. USDA expects that these actions, as well
as the other product-based added sugars limits finalized in this
rulemaking, will support an overall decrease in the added sugars
content of school meals. Additionally, as noted above, this final rule
maintains that NSLP and SBP operators who choose to offer flavored milk
must also offer unflavored milk (fat-free or low-fat) to students in
the same meal service. This requirement ensures that milk variety in
the NSLP and SBP is not limited to flavored milk choices, and that a
nutrient-dense form of milk that is lower in added sugars (i.e.,
unflavored milk) is always available for students to select. USDA is
committed to advancing the nutritional quality of school meals and
reducing added sugars to safeguard children's health and align with the
goals of the most recent Dietary Guidelines.
USDA appreciates respondent feedback on additional approaches to
[[Page 31985]]
reduce added sugars intake from flavored milk. For example, respondents
suggested that schools can limit flavored milk options to lunch only,
procure flavored milks with the least amount of added sugars, or limit
flavored milk to one day per school week. Additionally, there is no
requirement that schools offer flavored milk, and schools may choose to
remove all flavored milk from school meal menus as long as the school
continues to offer a variety of fluid milk. For example, one school
district commented that they have removed flavored milk from their
menus to support school wellness. USDA encourages schools to consider
these strategies to further reduce added sugars in school meals and to
choose options that work best for their unique communities.
Respondents also raised other ideas and suggestions related to milk
requirements. For example, some respondents encouraged USDA to remove
the milk variety requirement. The requirement to offer a variety of
milk options is mandated by statute, and USDA does not have the
authority to change this statutory requirement (42 U.S.C.
1758(a)(2)(i)). Schools have several options to meet the milk variety
requirement, such as offering unflavored fat-free and unflavored low-
fat milk. Schools may also offer lactose-free or reduced-lactose milk
(fat-free or low-fat) to meet the milk variety requirement. Other
respondents recommended USDA allow schools to offer milk with a higher
fat content. While USDA appreciates comments suggesting schools be
allowed to offer reduced fat and whole milk, allowing these milk
options in the school meal programs would not be consistent with the
goals of the most recent Dietary Guidelines as required by the NSLA and
would make it difficult for menu planners to achieve weekly dietary
specifications without exceeding calorie and saturated fat limits.
Statutory requirements state that milk offered in reimbursable school
meals must be consistent with the most recent Dietary Guidelines, and
the Dietary Guidelines, 2020-2025 recommends unsweetened, fat-free or
low-fat milk for school-aged children. Therefore, USDA does not permit
reduced-fat or whole milk in the school meal programs (7 CFR
210.10(d)(1)(i) and 220.8(d)).
As mentioned above, this final rule does not change any milk
requirements in CACFP. Many respondents requested that milk standards
established in school meal programs be consistent with the CACFP. USDA
recognizes that regulatory consistency across programs, a long-time
goal at USDA, facilitates program administration and operation at the
State and local levels, fosters support, and meets stakeholder
expectations.
Accordingly, this final rule makes minor technical changes to the
requirements found in 7 CFR 210.10(d)(1), 210.11(l)(1)(ii), (l)(2)(ii),
and (l)(3)(ii),\57\ and 220.8(d). This final rule continues to allow
NSLP and SBP operators to offer unflavored or flavored, fat-free or
low-fat milk as part of a reimbursable meal and for sale [agrave] la
carte, and to allow flavored, low-fat milk in the SMP and in the CACFP
for participants ages 6 and older. Because this rule finalizes the
current flavored milk requirements, child nutrition program operators
will not need to make changes to their menus to comply with this
provision, beyond those changes described in Section 2: Added Sugars.
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\57\ This final rule redesignates the paragraph outlining
requirements for competitive beverages, which was previously 7 CFR
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive beverage are outlined at
7 CFR 210.11(l).
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Section 3B: Fluid Milk Substitutes: Responses To Request for Input
Current Requirement
As noted in Section 3A: Flavored Milk, the National School Lunch
Act requires fluid milk (cow's milk) to be offered with every school
breakfast and lunch. The statute is also very specific about allowable
fluid milk substitutes for non-disability reasons. To provide a
substitute for cow's milk in the school meal programs, the statute
requires:
That the fluid milk substitute is nutritionally equivalent
to fluid milk and meets nutritional standards established by the
Secretary, which must include fortification of calcium, protein,
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C.
1758(a)(2)(B)(i)). This requirement also applies to the CACFP (42
U.S.C. 1766(g)(4)(B)).
That the substitution is requested in writing by a medical
authority or the child's parent or legal guardian (42 U.S.C.
1758(a)(2)(B)(ii)). This requirement also applies to CACFP (42 U.S.C.
1766(g)(4)(C)(i)(II)).
That the school notify the State agency if it is providing
fluid milk substitutes for non-disability reasons (42 U.S.C.
1758(a)(2)(B)(ii)).
That the school cover any expenses related to providing
fluid milk substitutes in excess of program reimbursements (42 U.S.C.
1758(a)(2)(B)(iii)). This requirement also applies to institutions or
facilities in the CACFP (42 U.S.C. 1766(g)(4)(D)).
Under current school meal regulations, the statutory requirements
for fluid milk substitutes for non-disability reasons are codified in
two places:
Current 7 CFR 210.10(d)(3) details the nutrition
requirements for fluid milk substitutes for non-disability reasons.
Current 7 CFR 210.10(m)(2)(i) through (iii) detail
additional requirements for fluid milk substitutes for non-disability
reasons, such as the process for requesting a fluid milk substitute on
behalf of a student.
Under current CACFP regulations, the statutory requirements for
fluid milk substitutes are codified at 7 CFR 226.20(g)(3).
As a point of clarification, the statute and program regulations
require schools, institutions, and facilities to provide meal
modifications for participants with a disability that restricts their
diet. Lactose intolerance may be considered a disability. For example,
a child whose digestion is impaired due to lactose intolerance may be
considered a person with a disability who requires a substitution for
cow's milk. In this example, if a student cannot consume cow's milk due
to a disability, and the school food authority obtains a written
medical statement as documentation of the student's disability, the
school is required to provide a substitution for cow's milk. Further,
when providing a meal modification for a participant's disability, the
substitution for cow's milk does not need to meet the non-disability
fluid milk substitute requirements. When providing a meal modification
for a participant's disability, the school, institution, or facility
would review the participant's medical statement which must include a
recommended alternative to accommodate the participant with a
disability,\58\ and the substitution would not be required to meet the
nutrition requirements for non-disability fluid milk substitutes. The
nutrition requirements for non-disability fluid milk substitutes apply
only in non-disability situations. This section will focus on non-
disability fluid milk substitute requirements. Please see Section 14:
Meal Modifications for a more detailed overview of meal modifications
for disability reasons,
[[Page 31986]]
including updates made by this rulemaking.
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\58\ However, Program operators should not deny or delay a
requested modification because the medical statement does not
provide recommended alternatives. When necessary, Program operators
should work with the participant's parent or guardian to obtain a
supplemental medical statement. See Question 17. U.S. Department of
Agriculture, Accommodating Disabilities in the School Meal Programs:
Guidance and Questions and Answers (Q&As). April 25, 2017. Available
at: https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas.
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Proposed Rule
USDA proposed to reorganize the NSLP regulatory text related to
fluid milk substitutes for non-disability reasons to clarify the
requirements for requesting and providing non-disability fluid milk
substitutes in the school meal programs. The rule proposed to move the
NSLP regulatory text explaining the non-disability fluid milk
substitute requirements from paragraph (m) of 7 CFR 210.10--which
currently discusses exceptions and variations allowed in reimbursable
meals--to paragraph (d) of 7 CFR 210.10--which discusses the fluid milk
requirements.
USDA did not propose substantive changes to the requirements for
non-disability fluid milk substitutes. As noted in the proposed rule,
USDA does not have the authority to change the statutory requirements
for non-disability fluid milk substitutes. However, USDA requested
public input on the current fluid milk substitute process, particularly
from parents and guardians with firsthand experience requesting a non-
disability fluid milk substitute on behalf of their child, and program
operators with firsthand experience processing a request.
Public Comments
USDA received 390 comments with feedback about the current fluid
milk substitute process, including 194 unique comments. Several
respondents encouraged USDA to make the process of requesting and
providing fluid milk substitutes less cumbersome so that participants
can more easily access substitutes. These respondents offered a variety
of suggestions for USDA, State agencies, schools, institutions, and
facilities to consider to improve access to fluid milk substitutes. For
example, respondents suggested:
Pursuing a public education campaign to encourage medical
screening of children with possible lactose intolerance and milk
allergies.
Developing informational fliers with basic facts about
lactose intolerance and milk allergies to be posted in school
cafeterias and community clinics and sent home with children.
Improving awareness of the process of requesting fluid
milk substitutes among school food service professionals, parents,
guardians, and students, for example, by:
Clarifying that schools are authorized and encouraged to
provide fluid milk substitutes for non-disability reasons based on a
parent or guardian request.
Issuing guidance with examples of reasons students may
request a non-disability fluid milk substitute, such as following a
vegan diet.
Simplifying the process of requesting a fluid milk
substitute for a participant, for example, by:
Including in registration materials a simple way for
parents and guardians to request a fluid milk substitute, such as a
form with a checkbox.
Providing a model notice and form parents and guardians
may use to request a fluid milk substitute that schools, institutions,
or facilities can post on their website and mail to families.
Providing a list or database of allowable fluid milk
substitutes, such as fortified soy beverages or pea protein milk.
Identifying more shelf-stable fluid milk substitute
options, especially for small schools, institutions, and facilities
where only a few participants request a fluid milk substitute.
Clarifying the differences between meal modifications for
disability reasons and fluid milk substitutes for non-disability
reasons.
Creating a focus group of students, school nutrition
professionals, district officials, and parents and guardians from
across the country to further understand the barriers students face in
accessing fluid milk substitutes.
Providing additional reimbursement or funding to schools
that offer non-disability fluid milk substitutes.
Several respondents had additional feedback on the process of
identifying products that meet the nutrition requirements for fluid
milk substitutes. One advocacy group and a few other respondents
encouraged USDA to modify the process of identifying acceptable fluid
milk substitutes so that program operators can refer to the Nutrition
Facts label, noting that currently, some of the required nutrients are
not always listed on the label. A State agency observed that when a
required nutrient is not included on the Nutrition Facts label, schools
need to contact the manufacturer to obtain nutrition information.
Another State agency and an advocacy group argued that the current
process makes it difficult for program operators to offer fluid milk
substitutes. Further, a State agency suggested the requirement for
micronutrients in fluid milk substitutes is ``excessive,'' suggesting
that requiring substitutes to match the micronutrient profiles of milk
discounts the other nutrition benefits of fluid milk substitutes.
A few respondents offered suggestions that would conflict with the
statutory requirements for fluid milk substitutes, as detailed in the
``Current Requirements'' section above. For example, respondents
suggested that USDA:
Make non-dairy milk options available to all children and
allow more beverages to be offered as fluid milk substitutes.
Remove the requirement for parents, guardians, or a
medical authority to request the fluid milk substitute.
Remove the requirement that school food authorities notify
the State agency if any of its schools choose to offer fluid milk
substitutes for non-disability reasons.
Make broader changes to the meal pattern requirements,
such as removing the requirement to offer fluid milk altogether.
A few respondents offered suggestions related to other proposals
included in the rule. An industry respondent and an advocacy group
suggested that if USDA finalizes added sugars limits for flavored cow's
milk, the same limits should apply to fluid milk substitutes. However,
another respondent recommended that if USDA applies a sugar limit to
fluid milk substitutes, that the limit be for total sugars (rather than
added sugars). One State agency requested clarification about whether
flavored milk restrictions for K-5 or K-8 students would apply to fluid
milk substitutes, if they are finalized for cow's milk. Other
respondents supported and recommended maintaining the current non-
disability fluid milk substitute process. An industry respondent
affirmed that it is important for non-dairy fluid milk substitutes to
provide nutrients similar to cow's milk. An advocacy group agreed,
noting that except for fortified soy beverages and soy yogurt, the
Dietary Guidelines do not include plant-based beverages as part of the
dairy group. This respondent supported maintaining the statutory
requirement that fluid milk substitutes be nutritionally comparable to
cow's milk. Another industry respondent affirmed that USDA developed
the nutritional requirements for fluid milk substitutes ``on the basis
of nutrition science and in accordance with statutory requirements.''
An advocacy group supported the current process for fluid milk
substitutes, arguing that it ``works well for school meal program
operators'' and provides clear guidelines. A State agency agreed,
suggesting that soy milk
[[Page 31987]]
and lactose-free milk are ``readily available'' and are nutritious
options for children.
One industry respondent appeared to misunderstand the types of
fluid milk substitutes that are permitted for non-disability reasons.
This respondent argued that certain non-dairy milks are not
nutritionally equivalent to cow's milk and that students should either
drink cow's milk or water. To clarify, to be allowed as a non-
disability fluid milk substitute, a product must meet nutritional
requirements outlined in regulation. These statutory requirements
ensure that fluid milk substitutes are nutritionally equivalent to
fluid milk (42 U.S.C. 1758(a)(2)(B)(i) and 42 U.S.C. 1766(g)(4)(B)).
Non-dairy milks that do not meet the nutritional requirements outlined
in regulation are not allowable fluid milk substitutes. Another
industry respondent confirmed that most plant-based milks, such as
almond, coconut, and rice milks, do not currently meet the nutrient
standards to qualify as fluid milk substitutes.
Some respondents provided input on lactose-free or reduced-lactose
milk. Low-fat or fat-free lactose-free and reduced-lactose milk are
milk under the statute and program regulations (42 U.S.C.
1758(a)(2)(A)(ii) and 7 CFR 210.10(d)(1)(i), 220.8(d), and
226.20(a)(1)). This means that schools, institutions, and facilities
may offer lactose-free and reduced-lactose milk toward the milk
requirements without obtaining a request from a parent or guardian or a
medical authority. A few industry respondents encouraged USDA to
provide incentives to schools that opt to offer lactose-free milk on a
routine basis to all students who want it, and to work with industry to
facilitate more extensive offerings of lactose-free milk in schools.
For example, these respondents suggested that USDA design a
specification for 8-ounce, lactose-free milk and offer it through USDA
Foods. Similarly, a State agency noted that it would be helpful if
processors packaged 8-ounce, lactose-free or reduced-lactose milks to
make these options more accessible to operators.
Several respondents raised concerns on behalf of children who
cannot consume, or have difficulty consuming, cow's milk. For example,
a group of State Attorneys General mentioned that children of color
have markedly higher rates of lactose intolerance, citing a 2013 study
\59\ that found that Black children were twice as likely as non-
Hispanic white children to have allergic sensitization to milk.
Similarly, a letter from Members of Congress noted that ``most Black,
Indigenous, and other People of Color (BIPOC) are lactose intolerant.''
An advocacy group cited the National Institutes of Health website,
which states that about 68 percent of the world's population has
lactose malabsorption.\60\ A few individuals shared their personal
experiences facing digestive issues as a child, which they attributed
to drinking cow's milk with their school lunch. These respondents
suggested improved access to fluid milk substitutes could help students
avoid experiencing the same discomfort today. To help address these
issues, a form letter campaign suggested that USDA clarify in the final
rule that lactose intolerance may be considered a disability. As noted,
a participant whose digestion is impaired due to lactose intolerance
may be a person with a disability that requires a menu substitution for
fluid milk, and the statute and regulation require schools,
institutions, and facilities to provide meal modifications for
participants with a disability that restricts their diet. As emphasized
by these and numerous other comments, USDA appreciates the importance
of clarifying the requirements for meal modifications for disability
reasons and fluid milk substitutes for non-disability reasons. USDA is
committed to providing guidance to help ensure participants who require
a substitution for cow's milk due to a disability receive a meal
modification.
---------------------------------------------------------------------------
\59\ The public comment cited the following study: Wegienka et
al., Racial Differences in Allergic Sensitization: Recent Findings
and Future Directions, Current Allergy and Asthma Reports, June
2013, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4888051.
\60\ The public comment cited the following web page: National
Institutes of Health. How common is lactose malabsorption? Available
at: https://www.niddk.nih.gov/health-information/digestive-diseases/
lactose-intolerance/definition-
facts#:~:text=While%20most%20infants%20can%20digest,world%27s%20popul
ation%20has%20lactose%20malabsorption.
---------------------------------------------------------------------------
Final Rule
This final rule reorganizes the NSLP regulatory text related to
fluid milk substitutes for non-disability reasons. This rule moves the
regulatory text explaining the non-disability fluid milk substitute
requirements from 7 CFR 210.10(m), which discusses exceptions and
variations allowed in reimbursable meals, to 7 CFR 210.10(d), which
discusses the fluid milk requirements. As noted in the proposed rule,
USDA does not have the authority to change the statutory requirements
for non-disability fluid milk substitutes,\61\ such as the statutory
requirement that fluid milk substitutes meet specific nutrition
requirements and that fluid milk substitutes must be requested in
writing. Therefore, this final rule does not make any substantive
changes to the non-disability fluid milk substitute request process
outlined in regulation. However, USDA greatly appreciates input that
respondents provided on the request process, including their advice on
best practices to improve the process for program operators, families,
and participants. USDA will consider including this input in future
best practice resources.
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\61\ As detailed in the Current Requirements section, the
following requirements related to fluid milk substitutes are
statutory, meaning that USDA does not have discretion to change
them: that the fluid milk substitute is nutritionally equivalent to
fluid milk and meets nutritional standards established by the
Secretary, which must include fortification of calcium, protein,
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C.
1758(a)(2)(B)(i)); that the substitution is requested in writing by
a medical authority or the child's parent or legal guardian (42
U.S.C. 1758(a)(2)(B)(ii)); that the school notify the State agency
if it is providing fluid milk substitutes for non-disability reasons
(42 U.S.C. 1758(a)(2)(B)(ii)); and that the school cover any
expenses related to providing fluid milk substitutes in excess of
program reimbursements (42 U.S.C. 1758(a)(2)(B)(iii)). This
requirement also applies to institutions or facilities in the CACFP
(42 U.S.C. 1766(g)(4)(D)).
---------------------------------------------------------------------------
USDA also encourages State agencies, schools, institutions,
facilities, and other stakeholders to consider this input in their
State and local processes. For example, community organizations could
partner with institutions and facilities to provide families with
information about lactose intolerance. USDA reminds schools,
institutions, and facilities that lactose-free and reduced-lactose milk
meet the meal pattern requirements for fluid milk (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). Schools,
institutions, and facilities may choose to provide lactose-free and
reduced-lactose milk to participants without needing to obtain a
written request from a parent or guardian.
Regarding fluid milk substitutes that require a written request
from a parent or guardian, school food authorities could provide a
simple form that parents and guardians could use to request a
substitute when sending student registration materials. For its part,
USDA remains committed to providing guidance to clarify the differences
between meal modifications for disability reasons and fluid milk
substitutes for non-disability reasons and will consider ways to
improve guidance related to the fluid milk substitutes process. Please
see Section 14: Meal Modifications for a more detailed overview of meal
modifications
[[Page 31988]]
for disability reasons, including updates made by this rulemaking.
USDA appreciates requests for clarification about whether fluid
milk substitutes offered in the NSLP and SBP are impacted by the added
sugars provision of this rule. USDA did not propose to apply the
product-based added sugars limit for flavored milk to fluid milk
substitutes; that proposal was specific to cow's milk. Therefore, fluid
milk substitutes are not required to meet the product-based added
sugars limit for flavored cow's milk. However, effective SY 2027-2028,
all meals offered during a school week--including meals containing
fluid milk substitutes--will be required to, on average, meet the
weekly added sugars limit (i.e., no more than 10 percent of calories
from added sugars).
Accordingly, this final rule amends 7 CFR 210.10(d) and (m) to
reorganize the regulatory text related to fluid milk substitutes for
non-disability reasons in the school meal programs. Schools are not
required to change menus or operations as a result of this technical
change.
Section 3C: Fluid Milk Substitutes: Nutrient Requirements
Current Requirements and Proposed Rule
As detailed above, the statute and regulations specify nutrition
requirements for fluid milk substitutes (42 U.S.C. 1758(a)(2)(B)(i), 42
U.S.C. 1766(g)(4)(B), 7 CFR 210.10(d)(3), and 226.20(g)(4)(B)).
Currently, the vitamin A and vitamin D requirements are specified in
International Units, or IUs. However, in 2016, the FDA published a
final rule that changed the labeling requirements for vitamins A and D
to micrograms (mcg) rather than IUs.\62\
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\62\ Food and Drug Administration. Food Labeling: Revision of
the Nutrition and Supplement Facts Labels (81 FR 33742, May 27,
2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels.
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To align with the labeling requirements in the FDA's rule, USDA
proposed to update the regulatory nutrition requirements for fluid milk
substitutes in the 2020 proposed rule. This proposal applied to NSLP,
SMP, and CACFP regulations for fluid milk substitutes.
Public Comments
USDA received 46 of the comments on this provision of the 2020
proposed rule, including 22 unique comments; all supported this change.
Several proponents suggested that this change could reduce burden and
make it easier for child nutrition program operators to identify fluid
milk substitutes. A State agency offered support for aligning
regulations with current packaging information, agreeing that this
could reduce burden. Another State agency noted that the current
inconsistency creates additional work and strongly supported the
proposed change.
Final Rule
As a conforming amendment, this final rule changes the units for
vitamin A and vitamin D requirements for fluid milk substitutes.
Instead of 500 IUs, the unit for the vitamin A requirement is now 150
mcg retinol activity equivalents (RAE) per 8 fluid ounces. Instead of
100 IUs, the unit for the vitamin D requirement is now 2.5 mcg per 8
fluid ounces. These requirements, along with the other nutrition
requirements for fluid milk substitutes, are shown in the table below.
[GRAPHIC] [TIFF OMITTED] TR25AP24.076
The amount of vitamin A and vitamin D required in fluid milk
substitutes does not change; only the unit of measurement has changed
to conform to FDA labeling requirements.
Accordingly, this final rule amends 7 CFR 210.10(d)(2)(ii),
215.7a(b)(2), and 226.20(g)(3)(ii). Child nutrition program operators
are not required to change menus or operations as a result of this
technical change.
Section 4: Whole Grains
Current Requirement
Current regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv)
require that at least 80 percent of the weekly grains offered in the
school lunch and breakfast programs must be whole grain-rich. The
remaining grain items offered must be enriched. To meet USDA's whole
grain-rich criteria, a product must contain 50 to 100 percent whole
grains; any grain ingredients that are not whole grain must be
enriched, bran, or germ. The current whole grain-rich requirement took
effect on July 1, 2022.
Proposed Rule
The proposed rule included two options for offering whole grains in
the school lunch and breakfast programs and requested public input on
both. The rule:
Proposed to maintain the current whole grains requirement
that at least 80 percent of the weekly grains offered are whole grain-
rich, based on ounce equivalents.
Requested public input on an alternative whole grains
option, which
[[Page 31989]]
would require that all grains offered must be whole grain-rich, except
that one day each school week, schools may offer enriched grains.
USDA requested public input on both approaches as well as the
following questions:
Which option would be simplest for menu planners to
implement, and why?
Which option would be simplest to monitor, and why?
In addition, USDA proposed to codify the definition of ``whole
grain-rich'' for clarity. The proposed regulatory definition reads as
follows: Whole grain-rich is the term designated by FNS to indicate
that the grain content of a product is between 50 and 100 percent whole
grain with any remaining grains being enriched. This proposed
definition would not change the meaning of whole grain-rich, which has
previously been communicated in USDA guidance. USDA proposed codifying
the definition in NSLP, SBP, and CACFP regulations.
Finally, USDA proposed to update the definition of ``entr[eacute]e
item'' in the competitive food service and standards regulations (7 CFR
210.11(a)(3)).\63\ These proposed changes sought to update the whole
grain-rich requirements for entr[eacute]e items sold as Smart Snacks in
School for consistency with school meal requirements.
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\63\ For more information on Smart Snacks in Schools, see: U.S.
Department of Agriculture, Tools for Schools--Focusing on Smart
Snacks. Available at: https://www.fns.usda.gov/cn/tools-schools-focusing-smart-snacks.
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Public Comments
USDA received over 80,000 comments on the whole grains provision of
the proposed rule, a majority of which were coded as ``mixed'' or
``other'' comments. Overall, about 3,800 comments supported whole
grains, including 47 unique comments, while 49 comments opposed whole
grains, including 44 unique comments. State agencies, school nutrition
professionals, advocacy groups, professional organizations, industry
respondents, dietitians, school nutrition professionals, and
individuals provided comments on the proposals. At a high level,
respondents provided the following feedback on whole grains:
Whole grains are an important source of fiber and other
nutrients.
Whole grain-rich varieties of certain foods are less
palatable to students, and some whole grain-rich products are less
widely available than enriched products.
USDA should establish a whole grain-rich requirement that
allows flexibility for schools to occasionally offer enriched grains.
More detailed respondent feedback, including respondent feedback on
the proposal to maintain the current requirement, as well as the
alternative days-per-week model, is included below.
Importance of Whole Grains
Many respondents highlighted the importance of whole grains to
children's diets. An advocacy group supported whole grain consumption
for children's health, reasoning that whole grain foods are wholesome,
nutrient-dense, and high quality. An industry respondent mentioned that
whole grain-rich requirements in school meals allow students to benefit
from whole grain foods, which provide important nutrients. An
individual agreed, adding that whole grains are a good source of
dietary fiber. Similarly, another respondent asserted that whole grain
consumption should be encouraged because of the ``well documented''
positive health effects.
Proposed Approach: Maintain 80 Percent Whole Grain-Rich Requirement,
Based on Ounce Equivalents
About 4,800 respondents supported maintaining the current whole
grain-rich requirement, including 291 unique comments. Several
respondents, including a State agency and a few dietitians, stated that
maintaining the current, 80 percent requirement would provide a
balanced approach throughout the week and allow menu planners and
students continued flexibility. An array of respondents supported
maintaining the current requirement because of the nutritional benefits
of whole grains and fiber consumption. Many respondents, including
school nutrition professionals, agreed that the current requirement
helps to increase students' whole grain consumption while allowing
flexibility to offer some enriched grains, such as pasta. A State
agency, professional organizations, school districts, and form letter
campaigns noted that maintaining the current requirement would
encourage whole grain consumption while allowing schools the
opportunity to serve culturally relevant enriched grain items.
One respondent appreciated the current 80 percent whole grain-rich
requirement and mentioned that their school menu usually offers about
90 percent whole grain-rich grains. This respondent stated that the 80
percent requirement provides ``wiggle room'' if a product they normally
buy as whole grain-rich is not available and they have to buy the
enriched option. A school nutrition professional explained that while
it took several years to adjust to whole grain-rich products, students
at their school now mostly accept them. Another school district shared
that its schools implement a 100 percent whole grain-rich requirement,
but still supported the 80 percent requirement because it allows
flexibility for schools to occasionally offer enriched grains.
A State agency supported maintaining the current requirement
because schools have successfully implemented, and are comfortable
with, the requirement. Similarly, another State agency noted that
schools can rely on existing menu planning software for implementation
and monitoring. A national organization, representing tens of thousands
of school nutrition professionals supported the current requirement,
emphasizing that this approach would be the ``simplest'' for menu
planners to implement and State agencies to monitor. One State agency
and two professional organizations suggested that maintaining the
current requirement would not require staff retraining or menu changes,
and would prevent confusion in menu planning, for example, during
shortened school weeks.
Twenty-one respondents, all unique comments, opposed the current
whole grain-rich requirement or raised concerns about implementation.
For example, a State agency expressed concern that the 80 percent
threshold may contribute to administrative burden for both menu
planning and Administrative Reviews. This State agency noted that
calculating 80 percent whole grain-rich offerings across weekly menus
could be complex, time-consuming, and error prone. Another respondent
mentioned that the current requirement is easier to monitor with
nutrition software but acknowledged that the days-per-week model would
be easier for schools that do not have software.
Alternative Approach: Days-Per-Week Model
About 9,100 respondents supported the alternative days-per-week
model, including 47 unique comments. A State agency reasoned that the
alternative option would simplify menu planning and reduce non-
compliance and monitoring burden. Other respondents, including a
professional association, a few school nutrition professionals, and a
dietitian, agreed, and gave examples of how the alternative approach
could be easier to implement. For example, respondents suggested that
the days-per-week requirement would be easier to understand, would
eliminate the need to calculate percentages, and would
[[Page 31990]]
simplify reviews for State agencies. A school nutrition professional
stated that they are implementing the current whole grain-rich
requirement using a days-per-week model and asserted that they find
this approach simple to plan and monitor.
Other proponents added that the alternative whole grain-rich
approach is nutritionally sound. For example, a form letter campaign
claimed that the days-per-week model supports a strong whole grain
standard. An industry respondent mentioned that allowing enriched
grains one day per week would ensure that students are exposed to whole
grains in most of their school meals.
Fifty-six respondents, including 37 unique comments, opposed the
alternative days-per-week model or raised concerns about
implementation. A dietitian expressed concern that the alternative
model would limit menu planning flexibility. A State agency shared
concerns that schools could potentially offer a larger amount of
enriched grains one day each school week, which could reduce the
overall percentage of whole grain-rich items offered during the week. A
few State agencies requested USDA provide implementation guidance for
the days-per-week model, particularly for schools with alternative
schedules (such as four- or seven-day school weeks) and for school
weeks that are shortened due to holidays, vacations, unexpected
closures, and emergencies. Some respondents cautioned that during
shortened school weeks, an even larger amount of overall grain
offerings could be enriched.
Other Approaches Suggested by Comments
Several respondents provided mixed responses on the two approaches
or suggested their own alternatives. Many respondents, including
professional organizations, advocacy groups, and a school district
encouraged USDA to allow school districts to choose which of the whole
grain-rich approaches they would like to implement, reasoning that
doing so would provide greater flexibility in program operations. A few
professional organizations added that some school districts may find it
easier to implement one option over the other, depending on their
unique supply chain, staffing, and menu planning considerations. Some
highlighted that providing a choice between both options would be
considerate of the operational differences between school districts of
varying sizes as well as differences between rural and urban school
districts.
An advocacy group expressed concern that while both approaches
would encourage whole grain consumption, they do not fully align with
the Dietary Guidelines recommendation that at least half of grains are
whole grains.\64\ Several advocacy groups urged USDA to require 100
percent of grain products offered in school meals to be whole-grain
rich. A State agency emphasized that they have maintained a 100 percent
whole grain-rich requirement, suggesting that their schools experience
minimal issues complying with their statewide requirement and are
successful in procuring products to meet that requirement. Another
individual recommended USDA require all grains to be whole grains
(rather than having a whole grain-rich requirement) and expressed
concern that whole grain-rich items are only required to contain at
least 50 percent whole grains. For clarity, USDA proposed codifying the
definition of whole grain-rich to explain that products containing 50
to 100 percent whole grain, such as whole grain oatmeal, are whole
grain-rich.
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\64\ See page 18. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
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An advocacy group supported strengthening the whole grain-rich
requirement reasoning that it could improve schools' environmental
sustainability. Instead of permanently maintaining the current
requirement, this respondent recommended that USDA transition to
requiring all grains offered to be whole grain-rich by SY 2027-2028.
Or, if USDA opted to finalize the days-per-week model, this advocacy
group recommended that USDA add a requirement that schools ``balance''
the enriched grain day with a 100 percent whole grains day. A form
letter suggested that USDA adopt a 100 percent whole grain-rich
requirement or increase the whole grain-rich threshold to 90 percent
and adopt an additional requirement for fiber. An industry respondent
supported the 80 percent threshold for NSLP, but suggested USDA require
that 100 percent of grains offered in the SBP be whole grain-rich.
Additionally, this respondent suggested that all breakfast cereal
offered in child nutrition programs should be whole grain-rich, noting
that there are a wide variety of whole grain-rich breakfast cereals
available.
Some respondents provided suggestions or questions for USDA to
consider. A parent suggested adjusting the proposed whole grain-rich
definition by emphasizing more whole (100 percent) grains. One
respondent asked if schools can receive ``credit'' if they offer 100
percent whole grains (which exceed the 50 percent threshold to qualify
as whole grain-rich) in order to offer more enriched grains. A school
district urged USDA to consider an approach that would require schools
to offer more whole grains, such as brown rice and bread from whole
wheat flour, as opposed to ``processed and manufactured products.'' A
form letter suggested USDA consider developing a requirement for fiber,
noting that grains are a top source of fiber in school meals.
Similarly, one advocacy group suggested a carbohydrate-to-fiber ratio
standard to help schools identify more healthful grain products.
Conversely, other respondents suggested that USDA decrease the
current 80 percent whole grain-rich threshold. A school nutrition
director opposed both whole grain proposals asserting that there is no
significant difference between the two options. This respondent
suggested USDA instead lower the current whole grain-rich threshold
from 80 to 50 percent. A State agency advocated for a 50 to 75 percent
whole grain-rich threshold, suggesting that the current 80 percent
threshold is challenging to meet for grades K-5 based on the minimum
grain amount required for the week. A few other respondents, including
a State agency, professional association, school district, and
individual, argued that the 80 percent threshold limits menu options
and claimed that implementing a 50 percent whole grain-rich requirement
would yield higher student participation and more menu planning
flexibility. A dietitian agreed, stating that a 50 percent whole grain-
rich requirement would provide an ``ideal balance'' between providing
whole grains and enriched grains in school meals.
Some respondents who supported a lower whole grain-rich threshold
cited specific challenges with offering whole grain-rich foods in
school meals, including ongoing supply chain issues and concerns about
the taste of certain whole grain-rich products. One respondent
mentioned that schools continue to experience supply chain issues and
production disruptions on a weekly basis. In recent years, this
respondent stated that schools have experienced limited availability of
whole grain-rich items and vendors have substituted enriched grain
products. When commenting on the whole grains proposal, a food industry
respondent explained that product development, reformulation, and
recipe adjustments are time-consuming activities. This respondent
stated that
[[Page 31991]]
rapid reformulation could increase prices and interfere with consumer
testing. Dietitians from a State agency noted that identifying whole
grain-rich items is challenging for small school districts that
purchase foods from consumer markets and small distributors, which do
not have crediting information readily available.
Relatedly, a few respondents shared examples of whole grain-rich
products that they asserted are not palatable or do not work well in
school cafeteria operations, such as egg noodles, pasta, tortillas,
grits, and biscuits. An individual claimed that students do not like
certain foods manufactured with whole grain ingredients, and a school
nutrition professional asserted that students refuse to consume whole
grain-rich biscuits and snack crackers. A school district claimed that
offering enriched grains is necessary for student participation in
school meals. Another respondent expressed that it is critical for USDA
to allow schools to occasionally offer enriched grains, adding that
some schools encounter strong regional and cultural preferences for
specific items, such as flour tortillas and white rice.
Comments on Other Whole Grain-Rich Proposals
Respondents also provided feedback on the proposal to codify the
definition of ``whole grain-rich'' in NSLP, SBP, and CACFP regulations
and the proposal to update the definition of ``entr[eacute]e item'' in
the competitive food service and standards regulations. One respondent
stated that the proposed regulatory definition for the term ``whole
grain-rich'' would allow school nutrition professionals to make more
informed decisions when implementing the whole grain-rich requirement.
An advocacy group suggested using a minimum of 51 percent in the
definition to emphasize that a product should have more whole grains
than enriched grains to qualify as whole grain-rich. A professional
organization shared concerns that adding the term ``whole grain-rich''
in regulation will require administrative costs for printing materials
and training CACFP operators and suggested one year to phase-in
implementation. A State agency inquired about what impact, if any, this
definition would have on how CACFP program operators identify whole
grain-rich items.
Regarding the proposal to update the definition of ``entr[eacute]e
item,'' a few advocacy groups opposed the change and encouraged USDA to
maintain the whole grain-rich requirement for Smart Snacks in School
entr[eacute]e items to ensure students purchasing food [agrave] la
carte receive whole grains. Another advocacy group agreed, stating that
while they understood the intent of the change, they were concerned
about the impact of schools selling enriched grain entrees [agrave] la
carte. Other respondents, including a State agency and advocacy groups,
supported the proposed change. One advocacy group noted that
maintaining the current definition would require entr[eacute]es sold
[agrave] la carte to be whole grain-rich, which would prevent schools
from selling certain enriched grain NSLP and SBP entr[eacute]es
[agrave] la carte. This respondent felt the proposed change would
simplify the rules, support consistency within the school meal
programs, and improve compliance. Another advocacy group agreed,
stating this change would be beneficial to the school meal programs.
Final Rule
Maintain 80 Percent Whole Grain-Rich Requirement, Based on Ounce
Equivalents
This final rule maintains the current whole grains requirement that
at least 80 percent of the weekly grains offered in the school lunch
and breakfast programs are whole grain-rich, based on ounce
equivalents. This final rule is based on stakeholder feedback, which
emphasized the importance of offering meals that meet local and
cultural preferences by ensuring nutrition requirements occasionally
allow schools to offer enriched grains. For example, this final rule
allows schools the flexibility to occasionally serve white rice or non-
whole grain-rich tortillas, while still promoting whole grain-rich
foods throughout the school week. The requirement that at least 80
percent of the weekly grains offered in reimbursable school lunch and
breakfast programs are whole grain-rich is a minimum standard, not a
maximum. Schools may choose to increase whole grain-rich offerings
beyond this minimum standard. It reflects a practical and feasible way
to work toward the Dietary Guidelines' recommendation to increase whole
grain consumption. USDA encourages schools to incorporate whole grains
in their menus as often as possible to support children's health.
This final rule also supports USDA's commitment to advancing
nutrition security by improving the nutritional quality of school
meals. Research has demonstrated the importance of school meals in
improving children's overall diets, including their whole grain
consumption. For example, USDA research published in April 2023 found
that after 2013, following implementation of the initial whole grain-
rich requirements for school meals, school food became the most whole
grain-dense food source in children's diets.\65\ USDA expects the
Healthy Eating Index (HEI) component score for whole grains will remain
high under this final standard. For reference, in SY 2014-2015, USDA
found the HEI component score for whole grains was 95 percent of the
maximum score at school breakfast and at lunch.\66\ In SY 2014-2015,
all grains offered in the NSLP and SBP were required to be whole grain-
rich; however, school food authorities that demonstrated a hardship in
meeting this requirement had the option to request an exemption that
allowed them to meet a reduced whole grain-rich requirement: at least
50 percent of all grains offered had to be whole grain-rich.
---------------------------------------------------------------------------
\65\ Lin, Biing-Hwan, Travis A. Smith, and Joanne F. Guthrie.
April 2023. Trends in U.S. WholeGrain Intakes 1994-2018: The Roles
of Age, Food Source, and School Food, ERR-311, U.S. Department of
Agriculture, Economic Research Service. Available at: https://www.ers.usda.gov/publications/pub-details/?pubid=106291.
\66\ See Figure ES.14. And Figure ES.17. School Nutrition and
Meal Cost Study, Final Report Volume 2: Nutritional Characteristics
of School Meals by Elizabeth Gearan, Mary Kay Fox, Katherine Niland,
Dallas Dotter, Liana Washburn, Patricia Connor, Lauren Olsho, and
Tara Wommak. Project Officer: John Endahl. Alexandria, VA: April
2019. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study. (OMB Control Number 0584-0596, expiration date 07/
31/2017.)
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USDA acknowledges that some respondents asserted that the 80
percent weekly whole grain-rich requirement does not align with the
Dietary Guidelines recommendations. It is important to acknowledge that
schools may offer whole grain-rich foods more often than required
throughout the school week and may choose to offer individual items
that exceed the minimum threshold to qualify as whole grain-rich. For
example, 100 percent whole grain bread and brown rice are examples of
foods that exceed the 50 percent minimum criteria to be whole grain-
rich. When schools exceed the weekly 80 percent requirement or offer
100 percent whole grain food items, students have greater access to the
nutritional benefits of whole grains, further aligning school meals
with the goals of the Dietary Guidelines, while still maintaining some
flexibility for schools to offer enriched grains. USDA appreciates
respondent feedback and continues to encourage schools to offer more
whole grain-rich foods, including 100 percent whole grain products.
Maintaining the option for schools to occasionally offer enriched
grains responds to stakeholders who advocated
[[Page 31992]]
for USDA to allow some menu planning flexibility to provide a variety
of grain offerings, including student, regional, and cultural
favorites.
USDA appreciates comments received on the alternative days-per-week
model and acknowledges respondents' concerns that this approach could
be difficult to implement and monitor, particularly during school weeks
that are shortened due to emergency school closures, holidays, or
scheduled breaks. USDA also acknowledges that the days-per-week model
would require special consideration for schools with four-day
schedules, or other alternative schedules. Due to this variability,
under a days-per-week model, there is potential that the overall amount
of whole grain-rich items offered could decrease, which could reduce
children's overall whole grain consumption. Therefore, USDA has
determined that maintaining the current 80 percent whole grain-rich
requirement is a more practical approach, as it supports children's
consumption of whole grains and has already been operationally
successful in schools nationwide.
Some respondents mentioned that they implement the current 80
percent whole grain-rich requirement using a days-per-week model.
Schools may choose to use this approach under the final rule, provided
they continue to offer at least 80 percent of all grains as whole
grain-rich, calculated by ounce equivalents. USDA encourages schools to
implement a strategy that best meets their operational needs and that
meets the required 80 percent whole grain-rich threshold.
USDA recognizes that some schools are concerned about product
availability due to supply chain challenges. USDA appreciates the
importance of maintaining strong, long-term nutrition standards and
incentivizing the food industry to develop products that support
schools' efforts to provide children with nutritious school meals. In
public comments, industry respondents and schools shared progress made
toward expanding whole grain-rich offerings that children enjoy. For
example, industry respondents mentioned a wide variety of whole grain-
rich products that are currently available in the K-12 market. One
industry respondent stated that they offer more than 25 entr[eacute]e
items containing whole grain-rich pasta or breading and suggested that
these items are accepted by students. Another industry respondent
stated that manufacturers ``have made great strides'' in developing
whole grain-rich breakfast options. In addition, USDA Foods in Schools
offers whole grain and whole grain-rich products available to schools
in the yearly USDA Foods Available List.\67\ For example, whole grain-
rich USDA Foods available to schools for SY 2023-2024 included 100
percent white whole wheat flour, rolled oats, pancakes, brown rice,
tortillas, and breaded fish sticks.
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\67\ U.S. Department of Agriculture, USDA Foods Available List
January 9, 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available.
---------------------------------------------------------------------------
USDA technical assistance resources also support efforts to offer
whole grain-rich foods in the child nutrition programs. USDA developed
the Whole Grain Resource for the National School Lunch and Breakfast
Programs \68\ as well as three separate tip sheets on grains in the
Crediting in the Child Nutrition Programs \69\ series that assist
school nutrition professionals with selecting appropriate whole grain-
rich products for their programs. For CACFP program operators, USDA
developed the Crediting Handbook for the Child and Adult Care Food
Program \70\ that includes technical assistance for identifying and
serving whole grain-rich foods served in child and adult care centers.
Additionally, USDA develops and shares recipes with whole grain-rich
ingredients for child nutrition programs that are published on the Team
Nutrition Recipes \71\ web page.
---------------------------------------------------------------------------
\68\ U.S. Department of Agriculture, Whole Grain Resource for
the National School Lunch and Breakfast Programs December 13, 2022.
Available at: https://www.fns.usda.gov/tn/whole-grain-resource-national-school-lunch-and-breakfast-programs.
\69\ U.S. Department of Agriculture, Crediting in the Child
Nutrition Programs May 23, 2023. Available at: https://www.fns.usda.gov/tn/crediting-grains.
\70\ U.S. Department of Agriculture, Crediting Handbook for the
Child and Adult Care Food Program May 8, 2023. Available at https://www.fns.usda.gov/tn/crediting-handbook-child-and-adult-care-food-program.
\71\ U.S. Department of Agriculture, Team Nutrition Recipes
March 10, 2023. Available at: https://www.fns.usda.gov/tn/team-nutrition-recipes.
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Definition of Whole Grain-Rich
This final rule codifies the definition of ``whole grain-rich'' in
NSLP, SBP, and CACFP regulations. The term ``whole grain-rich'' was
originally coined by the National Academy of Medicine (formerly known
as the Institute of Medicine) in their 2010 report, School Meals:
Building Blocks for Healthy Children,\72\ and was previously
communicated in USDA guidance. This final rule defines the term in
regulation for clarity. The intent of this change is to codify the
existing definition in NSLP, SBP, and CACFP regulations. The definition
in regulation reads as follows: Whole grain-rich is the term designated
by FNS to indicate that the grain content of a product is between 50
and 100 percent whole grain with any remaining grains being enriched.
This definition does not change the meaning of whole grain-rich, and
program operators can continue to identify whole grain-rich products as
described in current guidance. For example, CACFP program operators may
continue to use training resources, such as Identifying Whole Grain-
Rich Foods for CACFP,\73\ to credit whole grain-rich foods.
---------------------------------------------------------------------------
\72\ See: 7 Recommendations for Nutrient Targets and Meal
Requirements for School Meals.'' Institute of Medicine. 2010. School
Meals: Building Blocks for Healthy Children. Washington, DC: The
National Academies Press. https://doi.org/10.17226/12751. National
Academies of Sciences, Engineering, and Medicine. 2010. School
Meals: Building Blocks for Healthy Children. Washington, DC: The
National Academies Press. https://doi.org/10.17226/12751.
\73\ U.S. Department of Agriculture, Identifying Whole Grain-
Rich Foods For CACFP June 7, 2023. Available at: https://www.fns.usda.gov/tn/identifying-whole-grain-rich-foods-cacfp.
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USDA appreciates one respondent's suggestion to adjust the
definition to require at least 51 percent of a product to be whole
grain in order to qualify as whole grain-rich. However, USDA will
finalize the definition as proposed. The definition codified in this
final rule was originally used in the National Academy of Medicine's
2010 report and has been in place through policy guidance for more than
a decade. Program operators and the food industry have worked
diligently to comply with this longstanding definition. For example,
the food industry has worked to develop products that comply with the
existing definition. While USDA acknowledges that while the
respondent's suggested change is minor, finalizing the proposed
definition will avoid any unintended consequences that could impact
products that comply with the longstanding definition of whole grain-
rich. Further, the definition of whole grain-rich finalized in this
rulemaking derives from the Dietary Guidelines, which recommends at
least half, or 50 percent, of total grains be whole grains.
Entr[eacute]e Items Sold [agrave] la Carte
As proposed, this final rule also updates the definition of
``entr[eacute]e item'' in the competitive food standards regulations at
7 CFR 210.11(a) to clarify that both whole grain-rich and enriched
grain entr[eacute]es offered as part of a reimbursable school meal may
qualify as an ``entr[eacute]e item'' when sold [agrave] la carte as a
``Smart Snack.'' USDA acknowledges concerns raised in public comments
about how this change could result in schools selling enriched grains
to students. However, USDA agrees with public comments that noted that
this
[[Page 31993]]
change would benefit school programs by simplifying and improving
consistency in regulations, acknowledging that both whole grain-rich
and enriched grain entr[eacute]es may be offered at school lunch and
breakfast under the current requirements. Additionally, USDA clarifies
that as proposed, this change is limited to school lunch and breakfast
program entr[eacute]es sold [agrave] la carte; this change does not
impact the general standards for competitive foods for all other items
sold [agrave] la carte. The current whole grain-rich requirements for
all other items remain in effect under this final rule; this change is
limited to school lunch and breakfast program entr[eacute]es sold
[agrave] la carte on the day of, and the school day after, they are
included on the school lunch or breakfast menu.
For context, 7 CFR 210.11(c)(3) states that any entr[eacute]e item
offered as part of a reimbursable school meal is exempt from all
competitive food standards if it is sold [agrave] la carte on the day
of, or the school day after, the entr[eacute]e is offered on a school
lunch or breakfast menu. This exemption helps school nutrition
professionals prevent food waste and manage their programs. It also
helps to reduce potential confusion about whether an entr[eacute]e
served to some students as part of a school meal can be purchased
[agrave] la carte by other students. The current definition of
``entr[eacute]e item'' in the competitive food service and standards
regulations specifies that grain entr[eacute]es must be whole grain-
rich; however, under the current requirements and this final rule,
schools may offer up to 20 percent of their total grains as enriched
grains at school lunch and breakfast each week. Therefore, under this
final rule, USDA is finalizing the proposed definition of
``entr[eacute]e item'' so it only references ``grain'' and therefore
includes entr[eacute]es offered with both whole grain-rich and enriched
grains. This change updates regulations at 7 CFR 210.11(c)(3) to
clarify that whole grain-rich and enriched grain entr[eacute]es offered
in a reimbursable lunch or breakfast may qualify for the competitive
foods entr[eacute]e exemption on the day of, or the school day after,
they are offered on the school lunch or breakfast menu. For clarity,
this change only applies to grain items sold as entr[eacute]es in
reimbursable school lunches or breakfasts and which qualify for an
exemption to the competitive food standards. All other grain items sold
[agrave] la carte must comply with the general standards for
competitive foods at 7 CFR 210.11, which require that grain items sold
[agrave] la carte must meet USDA's whole grain-rich criteria.
Accordingly, this final rule amends 7 CFR 210.2, 210.10(c)(2)(iii),
210.11(a)(3), 220.2, 220.8(c)(2)(iii), and 226.2 to codify the
definition of the term ``whole grain-rich,'' to maintain the current 80
percent whole grain-rich requirement for the school lunch and breakfast
programs, and to update the definition of ``entr[eacute]e item'' to
account for the whole grain-rich and enriched grain requirements in
school meals. Because this rule finalizes the current whole grain-rich
requirements and terminology, as proposed, child nutrition program
operators will not need to make changes to comply with this provision
of this rule.
Section 5: Sodium
Current Requirement
Current regulations at 7 CFR 210.10(f)(3) and 220.8(f) required
schools to meet Sodium Target 1 for school lunch and breakfast in SY
2022-2023. For school lunch only, schools were required to meet Sodium
Target 1A in SY 2023-2024. These limits are shown in the tables below:
[GRAPHIC] [TIFF OMITTED] TR25AP24.077
[GRAPHIC] [TIFF OMITTED] TR25AP24.078
Proposed Rule
USDA proposed to gradually reduce sodium in the school lunch and
breakfast programs. For school lunch, USDA proposed three reductions,
to be phased in as follows and as shown in the chart below:
SY 2025-2026: Schools would implement a 10 percent
reduction from SY 2024-2025 school lunch sodium limits.
SY 2027-2028: Schools would implement a 10 percent
reduction from SY 2026-2027 school lunch sodium limits.
SY 2029-2030: Schools would implement a 10 percent
reduction from SY 2028-2029 school lunch sodium limits.
[[Page 31994]]
[GRAPHIC] [TIFF OMITTED] TR25AP24.079
For school breakfast, USDA proposed two reductions, to be phased in
as follows and as shown in the chart below:
SY 2025-2026: Schools would implement a 10 percent
reduction from SY 2024-2025 school breakfast sodium limits.
SY 2027-2028: Schools would implement a 10 percent
reduction from SY 2026-2027 school breakfast sodium limits.
[GRAPHIC] [TIFF OMITTED] TR25AP24.080
Public Comments
USDA received over 95,000 comments on the proposed sodium limits, a
majority of which (about 90,000 comments, including about 400 unique
comments) were categorized as ``mixed'' or ``other'' comments. Overall,
about 4,900 comments supported sodium reduction as proposed, including
about 180 unique comments, 565 comments opposed sodium reductions,
including almost 500 unique comments, and over 85,000 comments, nearly
all of which were form letters, supported sodium reduction beyond what
was proposed. Comments were submitted by State agencies, school
nutrition professionals, advocacy groups, industry respondents,
professional organizations, school districts, dietitians, and
individuals, including parents. At a high level, respondents provided
the following feedback on sodium:
Lower sodium school meals are important to children's
health, and some respondents recommended more aggressive reductions,
such as 15 percent reductions between sodium limits instead of 10
percent reductions.
Sodium reduction in school meals is dependent on product
availability, and product reformulation takes time and resources.
Students' consumption of higher sodium foods outside of
school impacts their acceptance of lower sodium school meals.
USDA should research the impact of sodium reduction on
school meal menu planning, student participation, and student health
prior to finalizing further sodium reductions.
Of the ``mixed'' comments, several form letters with over 85,000
combined submissions supported the sodium proposals but urged USDA to
finalize additional reductions, beyond the proposed reductions. Two
other ``mixed'' form letters with over 3,600 submissions recommended
that USDA retain the current sodium limits instead of moving forward
with the proposed limits. Other comments in this category offered
suggestions, which are described in more detail below.
Importance of Reducing Sodium
Several respondents discussed the importance of sodium reduction
for promoting health across the U.S. population. Advocacy groups
mentioned that proposed limits represent progress toward improving
children's health and that reducing sodium helps prevent chronic
disease. Similarly, a form letter campaign stated that sodium reduction
would ``benefit all students and further reduce diet-related
diseases.'' A parent agreed, emphasizing the importance of preventative
measures to protect children's health. An individual asserted that too
much sodium increases children's risk of elevated blood pressure and
other chronic health conditions. An advocacy group stated that aligning
the proposed rule with the Dietary Guidelines, including phasing in
sodium reductions, ``sets students up for lifelong success.''
Reducing Sodium in School Meals and Proposed Sodium Limits
As noted, approximately 4,900 respondents supported sodium
reduction, including about 180 unique comments. A professional
organization and an advocacy group supported the proposed sodium limits
because they align with FDA's voluntary reduction goals for the broader
food supply. An industry respondent appreciated the sodium proposal
because it promotes the use of more herbs and spices in place of
sodium, which has the ``potential to shift taste preferences.'' A few
school districts supported the proposed limits, with one claiming that
manufacturers add an ``unacceptable and unnecessary'' amount of sodium
to foods to enhance flavor.
Several respondents provided feedback on the sodium limit proposed
for SY 2025-2026, or the other proposed limits. A few school districts
and school nutrition professionals supported the initial 10 percent
sodium reduction for school lunch and breakfast. A school nutrition
director described the initial reduction as ``manageable'' for schools
and manufacturers. An industry respondent agreed that USDA should
finalize the initial reduction for both programs and expressed their
commitment to implement FDA's
[[Page 31995]]
voluntary sodium reduction goals to reduce sodium in their K-12
products. Additional respondent feedback on the proposed implementation
dates and number of sodium reduction limits is described below.
Over 500 comments opposed sodium reductions, the majority of which
were unique comments. Some respondents claimed that, due to student
taste preferences, it would be difficult to maintain student acceptance
of meals under the proposed sodium reductions. A form letter campaign
and other respondents asserted school meals are not to blame for
students' excessive sodium intake, pointing instead to meals students
consume at home and at other food service establishments. This form
letter added that students' taste preferences would not adjust to
school meals with less sodium without sodium reductions in the foods
that students consume outside of school. Other respondents suggested
that school nutrition staffing challenges and reliance on pre-packaged
foods make sodium reduction challenging. For example, a dietitian
suggested that lower sodium meals may be possible with more scratch
cooking, but many districts do not have the time or resources for
scratch cooking. Other respondents, including school districts and
school nutrition professionals, explained that some schools do not have
a full kitchen or adequate staffing to prepare meals with less sodium.
A few school districts raised concerns that further sodium reductions
would lead manufacturers to replace sodium with chemical preservatives
or artificial flavorings.
Approximately 90,000 comments, including about 400 unique comments,
provided mixed or other feedback on sodium reduction. A majority of the
mixed comments fell into two main categories: those that suggested that
USDA maintain the existing sodium limits, or more often, those that
suggested that the proposed limits do not go far enough. For example,
two ``mixed'' form letters with over 3,600 submissions recommended that
USDA retain the existing sodium limits and expressed concern about the
proposed reductions. A few school nutrition professionals expressed
concerns about the palatability of lower sodium foods and
manufacturers' ability to reduce sodium in their products. A
professional association encouraged USDA to delay sodium reductions
until after conducting listening sessions with school nutrition
professionals to determine feasible approaches for lowering sodium.
However, other respondents, including several form letters with
over 85,000 combined submissions, suggested that additional sodium
reduction is needed, asserting that the proposed limits do not reduce
sodium enough. A form letter campaign mentioned that the proposed
limits represent progress but stated that the final limits in the
proposed rule do not fully align with the Dietary Guidelines. A
professional organization and a school district recommended providing
development opportunities to help school nutrition professionals
prepare lower sodium meals, offering financial support for menu
changes, and educating students and families on the importance of
sodium limits.
Product Availability and Industry Input
Numerous respondents shared input on the availability and
development of lower sodium products. An industry respondent asserted
that the food industry continues to work to reduce sodium through
``innovation, reformulation, and the use of sodium substitutes'' but
that these changes take time. Another industry respondent noted that
many manufacturers have already reformulated under the existing sodium
limits, asserting that some manufacturers have reduced sodium in their
products by up to 80 percent. A third industry respondent asserted that
it takes ``on average, three years for manufacturers to innovate and
reformulate foods and participate in the school bidding process.'' A
State agency suggested that industry ``will not be willing or able'' to
reduce sodium in their products.
Other respondents raised concerns about competing priorities within
the food industry. For example, one industry respondent explained that
resources for reformulation are limited and manufacturers cannot
reformulate all of their products at the same time. Another respondent
emphasized that manufacturers continue to face supply chain and labor
challenges and need time to plan for further sodium reductions. An
industry respondent affirmed that product reformulations to reduce
sodium can take several months and involve ``trade-offs'' such as
reduced shelf-life and increased price. Another industry respondent
added that during the reformulation process to reduce sodium content in
products, manufacturers may need to use added sugars to maintain
palatability, suggesting that a ``careful balance'' is needed when
targeting these two ingredients.
Some respondents raised concerns about sodium levels and naturally
occurring or ``functional'' sodium in foods commonly offered in school
meals. For example, a form letter campaign, as well as other
respondents, mentioned that naturally occurring sodium is found in
foods such as bread, milk, cheese, and celery. Regarding milk, a school
nutrition professional shared that one serving of milk contains 110-125
milligrams of sodium. A few State agencies and school nutrition
directors asserted that naturally occurring sodium should be excluded
from the weekly sodium limits. An industry respondent mentioned that
``salt and sodium provide significant functionality and [food] safety''
in products like cheese. Another industry respondent expressed that the
sodium limits proposed for implementation in SY 2027-2028 and beyond
would make it hard for schools to offer plant-based alternatives that
are currently available in the school meals market, such as vegetable
crumbles and bean patties. This respondent stated that many plant-based
products ``require added sodium for food quality, palatability, and
shelf-life purposes.'' An individual suggested that condiments be
excluded from weekly sodium limits because not all students use them.
Other Alternatives Received From Public Comments
Respondents provided other suggestions or recommendations for USDA
to consider. A professional organization suggested allowing sodium
limits to be ``optional'' and that USDA encourage schools to meet
optional limits by providing a financial incentive. Several other
respondents, including school nutrition professionals and industry
respondents, encouraged USDA to research the impact of sodium
reductions on product availability, menu planning, food waste, student
acceptance, student health, and student participation in the school
meal programs. An industry respondent added that the study should
carefully consider the impacts across all age groups and at schools of
varying sizes.
Proposed Implementation Dates and Number of Reductions
USDA requested public input on the following questions about sodium
limits and the proposed implementation timeframe:
Does the proposed implementation timeframe provide
appropriate lead time for manufacturers and schools to successfully
implement the new sodium limits?
Do commenters agree with USDA's proposed schedule for
incremental sodium reductions, including both the
[[Page 31996]]
number and level of sodium reductions and the timeline, or suggest an
alternative? Why?
About 300 respondents addressed the proposed implementation
timeframe, including 66 unique comments. Some respondents suggested
that the proposed implementation timeframe was appropriate. One
respondent stated that the gradual approach to sodium reduction would
allow time for innovation. An advocacy group agreed, asserting that a
gradual approach is ``feasible for schools and the food industry.'' A
State agency affirmed that the proposed implementation dates would
allow time for student engagement, inventory management, and technical
assistance. Another State agency agreed the proposed implementation
dates provide adequate lead time for food manufacturers and schools;
however, this respondent also emphasized that timely publication of the
final rule would be key to successful implementation. An advocacy group
asserted that the proposed sodium limits and timeline ``allow schools
to plan, source, and test meals that are nutritious, palatable to
students and abide by new guidelines.''
Other respondents expressed that the timeframe would not provide
schools sufficient time to successfully implement the proposed limits.
A State agency suggested USDA reconsider the proposed schedule due to
concern about student acceptance. An industry respondent suggested that
sodium reduction needs to ``occur more gradually over the next 20 years
or more.'' This respondent recommended there be five years between each
sodium limit to ``allow technology to catch up to the requirements''
and to allow students to become accustomed to lower sodium meals. A
school nutrition professional recommended extending the timeframe for
sodium reduction over 10 to 15 years. A school district mentioned that
the proposed school breakfast limits are achievable but the proposed
school lunch limits are ``too aggressive for manufacturers to
implement.'' An individual stated that industry would need at least 3
to 5 years to develop food items to meet the proposed sodium limits.
Respondents also provided feedback on the number and levels of sodium
limits included in the proposed rule. For example, a few school
districts and an advocacy group recommended that USDA maintain the
current sodium limits, without any further reductions. A State agency
supported only the initial 10 percent reduction, asserting that
industry and the U.S. food supply should ``catch up'' before sodium
reduction beyond the initial reduction occurs in school meals. A few
industry respondents agreed, supporting the initial sodium reduction
but recommending that USDA pause on implementation of subsequent limits
until research is ``completed and understood.'' Another State agency
suggested removing the third proposed sodium limit at lunch and adding
more time in between each reduction. Several respondents referenced
sodium targets from prior USDA rulemakings, including Sodium Target 2,
which falls between the first and second proposed sodium reduction
limits.\74\ For example, some respondents suggested that Sodium Target
2 levels would be achievable for schools, but that sodium reductions
beyond Sodium Target 2 would be too challenging for schools. One
advocacy group suggested implementing larger, 15 to 20 percent
reductions every two years, instead of 10 percent reductions, or adding
a fourth or fifth sodium reduction to align with the recommendations
from the Dietary Guidelines.
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\74\ Sodium Target 2 was established by the 2012 rule. Under the
2012 rule, Sodium Target 2 would have been implemented in SY 2017-
2018; however, legislative and administrative action prevented
implementation of sodium targets beyond Sodium Target 1. To view the
Sodium Target 2 limits as established by the 2012 rule, see: U.S.
Department of Agriculture. Nutrition Standards in the National
School Lunch and School Breakfast Programs. (77 FR 4088, January 26,
2012). Available at: https://www.federalregister.gov/d/2012-1010/p-138.
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Suggestions for Best Practice Product-Based Sodium Limits
In addition to feedback on the sodium limits and implementation
dates, USDA requested public input on the following questions about
developing best practices for specific products:
USDA plans to recommend (but not require) sodium limits
for certain products, such as condiments and sandwiches, to further
support schools' efforts to procure lower sodium products and meet the
weekly limits.
For which products should USDA develop best practice
sodium limits?
What limits would be achievable for schools and industry,
while still supporting lower-sodium meals for children?
State agencies, advocacy groups, and other respondents recommended
that USDA develop best practice sodium limits for the following
products:
Broths and soups
Breaded chicken
Condiments and sauces
Canned vegetables and pickles
Deli meat and sandwiches
Pizza, pasta dishes, and tacos
A State agency supported USDA's plans to develop best practice
product sodium limits for certain foods and encouraged USDA to work
with the food industry to develop the voluntary limits. This State
agency mentioned that best practice product limits would help State
agencies provide technical assistance and support to schools working to
reduce sodium. Several respondents, including a form letter campaign,
opposed best practice product sodium limits for specific foods; others
suggested that developing best practice product limits would not be a
good use of time and resources. Some respondents were concerned that
best practice product sodium limits would be the ``first stop to
product-specific limit requirements'' or appeared to be confused about
the intent of the request for input. To clarify, USDA's request for
input was intended to inform recommended (not required) best practice
product sodium limits for technical assistance purposes. USDA does not
intend to require product-based sodium limits.
Final Rule
In response to feedback from stakeholders, this final rule provides
schools even more time to gradually reduce sodium in school meals and
commits to conducting a study on potential associations between sodium
reduction and student participation. As recommended by stakeholders,
including a professional organization representing school nutritional
professionals in the Nation's largest school districts, this final rule
reduces sodium in school lunch and breakfast by approximately 15
percent and 10 percent, respectively. The sodium reduction finalized in
this rule falls between the first and second sodium reduction included
in the proposed rule and reflect the Sodium Target 2 levels established
in the 2012 final rule,\75\ a level many stakeholders commented was
familiar and achievable. This final rule codifies the following sodium
limits in the school lunch and breakfast programs:
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\75\ U.S. Department of Agriculture. Nutrition Standards in the
National School Lunch and School Breakfast Programs. (77 FR 4088,
January 26, 2012). Available at: https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs.
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For the next three school years, through SY 2026-2027,
schools will maintain current sodium limits (Sodium Target 1A for lunch
and Sodium Target 1 for breakfast).
By SY 2027-2028, schools must implement an approximate 10
percent reduction for breakfast and an approximate 15 percent reduction
for
[[Page 31997]]
lunch from current sodium limits, depending on the age/grade group.
The current sodium limit and the sodium reduction finalized in this
rulemaking are shown in the charts below. The current sodium limits for
school lunch and breakfast will remain in place through June 30, 2027.
Through the end of SY 2026-2027, schools will be able to maintain
Sodium Target 1A at lunch and Sodium Target 1 at breakfast. By July 1,
2027, schools must implement the sodium reduction shown in the chart
below. The sodium reduction for school lunch, which generally contains
higher amounts of sodium than breakfast, will be slightly larger
compared to the sodium reduction for school breakfast. This approach
allows school nutrition professionals to focus their sodium reduction
efforts on lunch.
[GRAPHIC] [TIFF OMITTED] TR25AP24.081
[GRAPHIC] [TIFF OMITTED] TR25AP24.082
These sodium limits apply, on average, to lunches and breakfasts
offered during a school week. Sodium limits do not apply per day, per
meal, or per menu item. A weekly average allows flexibility for menu
planners to occasionally offer higher sodium meals or menu items,
provided they are balanced with lower sodium meals and menu items
throughout the week.
While schools are not required to reduce sodium in school meals
until SY 2027-2028, USDA encourages schools to gradually reduce sodium
at lunch and breakfast prior to the required reduction. USDA encourages
school nutrition professionals to adjust food preparation methods,
gradually incorporate more lower sodium foods throughout the school
week and make menu adjustments to support eventual implementation of
the sodium reduction codified by this rulemaking.
As detailed in the Public Comments section, many respondents
suggested that USDA take a more gradual approach to sodium reduction
than proposed. For example, a professional organization representing
over 112,000 credentialed nutrition and dietetics practitioners
acknowledged the importance of reducing children's sodium intake but
recommended a smaller overall reduction at lunch compared to the
proposed rule and suggested providing additional time for
implementation. USDA agrees with comments that noted the importance of
gradually moving toward lower sodium meals in a way that is achievable
for schools and the food industry and has incorporated this feedback
into the sodium limits established by this final rule. USDA also
considered current sodium levels in the U.S. food supply and time
needed for product reformulation and for student palates to adjust. The
Dietary Guidelines, 2020-2025 also recognize that ``multiple strategies
should be implemented to reduce sodium intake'' across the U.S.
population.\76\ For example, the Dietary Guidelines acknowledge that
most sodium comes from salt added during commercial food processing and
preparation, and note that ``reducing sodium consumption will require a
joint effort by individuals, the food and beverage industry, and food
service and retail establishments.'' \77\ As a reflection of feedback
received from schools and industry partners, the sodium reduction for
school lunch and breakfast established by this final rule takes a more
gradual approach to lowering sodium compared to the proposed series of
limits. By finalizing a single sodium reduction for both school lunch
and breakfast, this rule gives schools and industry a clear endpoint to
work toward in the near-term.
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\76\ See page 46. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
\77\ See page 46 and page 102. U.S. Department of Agriculture
and U.S. Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
School nutrition professionals emphasized that sodium reductions
need to be gradual for schools to be successful and for students to
accept lower sodium meals and numerous respondents suggested that at
least three years are needed for product reformulation. USDA
incorporated this feedback into the sodium reduction implementation
date of July 1, 2027--over three years after the publication of this
final rule. Additionally, school
[[Page 31998]]
nutrition professionals, advocacy groups, and other respondents
encouraged USDA to study the impact of sodium reductions on student
participation in the school lunch and breakfast programs. Respondents
were concerned, for example, that students would choose to bring meals
from home instead of participating in the school lunch and breakfast
programs if sodium is further reduced in the programs. Therefore, in
response to requests from stakeholders, USDA will examine school meal
sodium reduction efforts and monitor student participation data.
As noted above, USDA received numerous comments referencing sodium
requirements from prior rulemakings--specifically, the 2012 final rule.
USDA considered these comments, as well as implementation of prior
rulemakings, to inform the sodium limits in this final rule. A
professional organization representing school nutrition professionals
in the Nation's largest school districts suggested that Sodium Target 2
from the 2012 rule could be achievable if food manufacturers have an
endpoint to work toward. This respondent did not recommend going beyond
Sodium Target 2 limits in this rulemaking. Another respondent cited
data suggesting that in SY 2014-2015, prior to the pandemic and related
supply chain challenges, the average school lunch was ``already well
below'' Sodium Target 1 and the average school breakfast was already
meeting Sodium Target 2. This is similar to findings discussed in FNS'
Successful Approaches to Reduce Sodium in School Meals study, conducted
prior to the pandemic in 2016 and 2017, which described ``a high rate
of success in meeting the Target 1 sodium standards,'' with many school
food authorities ``making significant progress toward or reaching
[Sodium] Target 2.'' \78\ A school district commenting on the proposed
rule maintained that they ``would be fine with the [Sodium] Target 2
guidelines,'' adding that Sodium Target 2 was ``achievable and students
enjoyed the food we provided prior to COVID.'' Another school district
agreed, suggesting that its ``sodium averages are currently at or below
[Sodium] Target 2 for both lunch and breakfast.'' However, this school
district noted that student feedback and product availability have
prevented decreases beyond Sodium Target 2. In response to prior
rulemakings stakeholders have also encouraged USDA to allow more time
for gradual sodium reduction, including recommending that USDA not go
beyond Sodium Target 2. Based on this feedback, USDA expects that
gradually phasing in limits that reflect the Sodium Target 2 will be
achievable for schools. This rulemaking gives schools and industry a
clear endpoint to work toward in the near-term, while providing
sufficient time for all stakeholders to prepare for implementation. It
also responds to proposed rule comments that suggested that Sodium
Target 2 levels are achievable, but that USDA not go beyond the Sodium
Target 2 limits in this rulemaking.
---------------------------------------------------------------------------
\78\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A.
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to
Reduce Sodium in School Meals Final Report. Prepared by 2M Research
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service. Available at:
https://fns-prod.azureedge.us/sites/default/files/resource-files/Approaches-ReduceSodium-Volume1.pdf.
---------------------------------------------------------------------------
USDA also appreciates comments that supported sodium reduction in
school meals to benefit children's overall health. While this final
rule does not go as far as the proposed rule in reducing sodium, the
sodium limits finalized in this rulemaking represent significant
progress. The proposed sodium limits, which were informed by FDA's
voluntary sodium reduction goals, would have reduced sodium in school
lunches by 30 percent and school breakfasts by 20 percent. As detailed
in the proposed rule, to develop the proposed limits, USDA used the
average short-term FDA targets for foods commonly served in school
lunch and breakfast to calculate a baseline menu goal for weekly sodium
limits for each meal; this calculation resulted in an initial 10
percent reduction from the transitional sodium limits. The proposed
rule built on this initial reduction with two additional reductions at
lunch and one additional reduction at breakfast. USDA acknowledges that
many respondents supported sodium reduction beyond what was proposed.
However, many stakeholders, including school nutrition professionals
and industry, expressed concern about meeting sodium levels beyond
Sodium Target 2. The sodium limits finalized in this rule respond to
stakeholder feedback by considering concerns that respondents raised
around student acceptance of meals and the need for product
reformulation, which many respondents suggested takes about three
years.
This final rule reduces sodium in school lunch and breakfast by
approximately 15 percent and 10 percent, respectively, achieving or
surpassing the first proposed reduction informed by FDA's voluntary
sodium reduction goals while incorporating stakeholder input. The
sodium reduction finalized in this rule falls between the first and
second sodium reduction included in the proposed rule, and this final
rule gives school nutrition professionals additional time to reach the
new limits. The sodium limits finalized in this rulemaking also reflect
a prior limit that school nutrition professionals and industry are
familiar with and have worked toward in the past. As noted above, in SY
2014-2015, many school food authorities were making significant
progress toward meeting Sodium Target 2. A single sodium reduction for
the school lunch and breakfast programs responds to stakeholders who
suggested that one reduction for each program would be more attainable
for schools and industry compared to the proposed series of reductions
that would have spanned several years. Further, the implementation date
for sodium reduction aligns with the weekly dietary limit for added
sugars finalized in this rulemaking, allowing school nutrition
professionals to implement both changes at the same time, rather than
tracking multiple implementation dates.
USDA recognizes that continuing to reduce sodium in school meals is
important to improve nutrition security, and USDA will use information
from its forthcoming study to inform future sodium reduction efforts.
While schools and industry partners have made progress in sodium
reduction over the years, USDA acknowledges that there are
opportunities for improvement. The Dietary Guidelines also acknowledge
the importance of reducing sodium intake in achieving a healthy dietary
pattern.\79\ According to the Dietary Guidelines, over 95 percent of
children ages 2-18 exceed recommended sodium levels.\80\ Consistent
with the goals of the Dietary Guidelines, this final rule supports
efforts to improve children's dietary patterns by gradually reducing
sodium limits in school meals. Importantly, this final rule also
considers operational feasibility, such as the need for manufacturers
to reformulate products to support implementation of reduced sodium
limits. As detailed above, the Dietary Guidelines acknowledge that most
sodium consumed in the United States comes from salt added during
[[Page 31999]]
commercial processing, meaning that ``multiple strategies should be
implemented to reduce sodium intake to recommended limits.'' \81\ This
final rule represents a step toward that gradual, ongoing improvement;
USDA agrees with public comments that noted the importance of continual
progress toward reducing sodium in American's diets. Additionally, the
gradual approach to sodium reduction finalized in this rule aligns with
FDA goals and government-wide efforts to reduce sodium intake for the
U.S. population. USDA understands that complementary efforts to reduce
sodium across the entire U.S. food supply are important to the success
of school meal sodium reductions; these efforts are discussed in more
detail below, under Food and Drug Administration Voluntary Sodium
Reduction Goals. USDA is committed to supporting schools' efforts to
lower sodium, recognizing that reducing sodium intake is critical for
chronic disease prevention and children's health as they grow into
adulthood.
---------------------------------------------------------------------------
\79\ See page 76. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
\80\ See page 77. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
\81\ See page 46 and page 102. U.S. Department of Agriculture
and U.S. Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
Food and Drug Administration Voluntary Sodium Reduction Goals
To develop the proposed rule and this final rule, USDA considered
FDA's voluntary sodium reduction goals, which aim to reduce sodium
across the U.S. food supply, in the context of school meals. FDA is
taking an iterative approach to sodium reduction, which involves
establishing sodium targets, monitoring progress, evaluating progress,
and engaging stakeholders. FDA recommended voluntary targets, issued in
October 2021, be met in 2.5 years and expects to issue revised
subsequent targets in the next few years to facilitate a gradual,
iterative process to reduce sodium intake. Similar in some respects to
FDA's short term sodium reduction targets, this final rule establishes
a single limit sodium reduction for both the school lunch and breakfast
programs for the near-term. Like FDA's efforts to monitor and evaluate
progress, as mentioned above, USDA will examine sodium reduction
efforts in school meals assess the potential impacts of these
reductions on program operations and participation.
USDA expects that the gradual approach to sodium reduction
finalized in this rule will set schools and students up for success, as
research \82\ indicates gradual sodium reductions are more acceptable
to consumers. Aligning school meal sodium limits with FDA's voluntary
sodium reduction goals may help support children's acceptance of school
lunches and breakfasts with less sodium, as the school meal reductions
will occur alongside sodium reductions in the broader U.S. food supply.
---------------------------------------------------------------------------
\82\ McGuire S. Institute of Medicine. 2010. Strategies to
Reduce Sodium Intake in the United States. Washington, DC: The
National Academies Press. Adv Nutr. 2010 Nov;1(1):49-50. doi.org/10.3945/an.110.1002. Epub 2010 Nov 16. PMID: 22043452; PMCID:
PMC3042781.
---------------------------------------------------------------------------
Naturally Occurring and ``Functional'' Sodium
In public comments, several respondents raised concerns about
naturally occurring sodium in foods such as bread, milk, and celery. As
noted above and in the proposed rule, the sodium limits in this
rulemaking are informed by FDA's voluntary sodium reduction goals. In
developing these goals, FDA ``carefully studied the range of popular
foods in today's marketplace to see what reductions are possible'' and
considered ``the many functions of sodium in food, including taste,
texture, microbial safety and stability.'' \83\ This means that FDA's
goals are not intended to focus on foods (e.g., milk) that contain only
naturally occurring sodium, but rather, to focus on foods where
actionable reductions in sodium are feasible. USDA appreciates public
comments about naturally occurring sodium in school meals. The sodium
limits in this final rule, which are informed by FDA's voluntary sodium
reduction goals, account for naturally occurring sodium levels in foods
and beverages in the current food supply.
---------------------------------------------------------------------------
\83\ U.S. Food and Drug Administration. Sodium Reduction.
Available at: https://www.fda.gov/food/food-additives-petitions/sodium-reduction.
---------------------------------------------------------------------------
In addition to public comments about naturally occurring sodium,
USDA appreciates public comments about ``functional'' sodium. Many
respondents requested that USDA account for ``functional'' sodium in
this rulemaking. This is similar to feedback included in Successful
Approaches to Reduce Sodium in School Meals, where manufacturers raised
concerns about ``functional'' sodium which plays a role in food shelf
life and spoilage.\84\ In particular, manufacturers worried that Sodium
Target 3 may be so low in sodium that it would affect their ability to
produce products such as bakery items, where sodium serves a functional
purpose (e.g., salt to strengthen gluten). As noted in the study, while
Sodium Target 2 seemed to be ``achievable'' by some manufacturers,
Sodium Target 3 was considered ``infeasible'' by nearly all
manufacturers, who raised concerns about the impact on food preparation
and storage.\85\ The Dietary Reference Intakes for Sodium and Potassium
\86\ also acknowledge the functional role sodium plays in the food
supply, indicating that ``the major sources of sodium in the diet come
from foods in which sodium chloride serves a functional purpose,
including baked goods, processed meats, and cheese.'' Similar to
examples cited in public comments, the Dietary Reference Intakes for
Sodium and Potassium point out that sodium plays a role in preserving
and fermenting foods, altering the texture of foods, and enhancing
flavor. However, based on the evidence available, the Dietary Reference
Intakes conclude that continued efforts to reduce sodium intake in the
population are warranted.
---------------------------------------------------------------------------
\84\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A.
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to
Reduce Sodium in School Meals Final Report. Prepared by 2M Research
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service. Available at:
https://www.fns.usda.gov/nslp/successful-approaches-reduce-sodium-school-meals-study.
\85\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A.
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to
Reduce Sodium in School Meals, Volume II: Detailed Study Findings.
Prepared by 2M Research under Contract No. AG-3198-P-15-0040.
Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition
Service. Available at: https://www.fns.usda.gov/nslp/successful-approaches-reduce-sodium-school-meals-study.
\86\ National Academies of Sciences, Engineering, and Medicine;
Health and Medicine Division; Food and Nutrition Board; Committee to
Review the Dietary Reference Intakes for Sodium and Potassium; Oria
M, Harrison M, Stallings VA, editors. Dietary Reference Intakes for
Sodium and Potassium. Washington (DC): National Academies Press
(US); 2019 Mar 5. 11, Sodium Dietary Reference Intakes: Risk
Characterization and Special Considerations for Public Health.
Available at: https://www.ncbi.nlm.nih.gov/books/NBK545448/#sec_ch11_2.
---------------------------------------------------------------------------
USDA appreciates the concerns that respondents raised regarding
functional sodium. Respondents noted the role sodium plays in food
safety, texture, and flavor, and emphasized the importance of
considering these factors when determining sodium limits in the school
meal programs. USDA considered and accounted for these comments when
developing this final rule. Because the sodium limits finalized in this
rulemaking are higher than those included in the proposed rule, USDA
has concluded that the sodium limits in this final rule adequately
account for ``functional'' sodium content in foods offered in school
meals while still supporting efforts to reduce sodium intake among
children. Further, the sodium limits in this rule do not approach
Sodium Target 3, which manufacturers expressed
[[Page 32000]]
particular concern within the study Successful Approaches to Reduce
Sodium in School Meals, as noted above. Finally, as noted, these sodium
limits are informed by FDA's voluntary sodium reduction goals which
account for functional sodium levels in foods and beverages in the
current food supply. With these higher sodium limits, school nutrition
professionals will have room to include foods with naturally occurring
or ``functional'' sodium on their menus, including foods that are
popular among children.
In summary, the overall weekly sodium limits for school meals
finalized in this rule take into account levels of sodium needed to
accommodate continued service of healthful foods with naturally
occurring and functional sodium. Therefore, foods and beverages
containing naturally occurring and functional sodium are not exempt
from these sodium limits; rather, the sodium limits in this final rule
account for such forms of sodium. USDA estimates that under this rule,
schools will continue to be able to serve popular foods and beverages
containing naturally occurring and functional sodium with similar
frequency as they do currently. While this rulemaking gradually reduces
the overall weekly sodium levels in school meals, the limits finalized
in this rule allow for foods and beverages with naturally occurring and
functional sodium. USDA anticipates that manufacturers will continue to
explore all avenues of sodium reduction, including product
reformulation and new technologies to reduce sodium, and encourages
these efforts. As detailed below, USDA also expects that menu planners
will play an important role in gradually reducing sodium levels in
school meals over time. USDA anticipates that this gradual reduction in
weekly average sodium limits will continue to allow menu planners
flexibility to offer meals and menu items that children enjoy.
Ongoing Support for Sodium Reduction Implementation
Successfully reducing sodium in school meals will require the
commitment and dedication of all school meals stakeholders. For its
part, USDA remains committed to ensuring that menu planners receive the
support and technical assistance needed to offer students meals that
comply with the sodium limits in this rulemaking. USDA will evaluate
progress toward reducing sodium in school meals, as well as in the
broader food supply, on an ongoing basis. School nutrition
professionals advocated for more gradual sodium reductions to allow
menu planners time to modify menus and to give children's palates time
to adapt; this rule provides that additional time. Additionally, USDA
is committed to providing ongoing support to schools through efforts
like the HMI Initiative, Team Nutrition grants, Farm to School grants,
and tailored technical assistance. USDA welcomes stakeholder input on
successful strategies to reduce sodium in school meals, and the
additional assistance and guidance needed from USDA to support these
efforts. Further, USDA expects that planned research on sodium
reduction in school meals will help to inform future sodium reductions.
Best Practice Product-Based Sodium Limits
USDA appreciates comments that provided suggestions for best
practice product-based sodium limits. Consistent with the proposed
rule, this final rule does not require product-based sodium limits for
specific foods and beverages; however, USDA will issue guidance on best
practice product limits for high contributors of sodium in school meals
and will incorporate FDA's voluntary sodium reduction goals. This
guidance is intended to help schools procure lower sodium products for
their weekly lunch and breakfast menus. Best practice limits provided
in future guidance will be recommendations, not required limits.
Accordingly, this final rule establishes sodium limits found at 7
CFR 210.10(c) and (f)(4) and 7 CFR 220.8(c) and (f)(4) of the
regulations. As noted, schools will maintain existing sodium limits
(Sodium Target 1A at lunch and Sodium Target 1 at breakfast) through
June 30, 2027. Schools will not need to make any changes to comply with
the sodium provision of this final rule until July 1, 2027, when the
sodium reduction included in this final rule must be implemented.
Section 6: Meats/Meat Alternates at Breakfast
Current Requirement
Current regulations at 7 CFR 220.8(c)(2) require three food
components for a complete school breakfast: fruits, grains, and fluid
milk. There is no meats/meat alternates component required at
breakfast; therefore, under the current SBP meal pattern, a meat/meat
alternate offered at breakfast credits toward the weekly grains
requirement. Under current regulations, schools may substitute a 1.0
ounce equivalent of meat/meat alternate for a 1.0 ounce equivalent of
grains, after meeting the daily minimum grains requirement.\87\ Meats/
meat alternates \88\ may also be offered as ``extra'' food items at
breakfast. ``Extra'' food items are not part of the reimbursable school
meal, but do count toward the weekly dietary specifications for
calories, saturated fat, sodium, and trans fat.
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\87\ Under current regulations, the minimum daily grains
requirement for each age/grade group at breakfast is 1.0 ounce
equivalent.
\88\ ``Meat alternates'' include cheese, eggs, yogurt, nuts and
seeds, tofu and soy products, and beans and peas.
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Proposed Rule
In the 2020 proposed rule, USDA set forth a combined meats/meat
alternates and grains component. Under the proposal, schools would have
the option to serve meats/meat alternates, grains, or a combination of
both, depending on school and student preferences. The 2020 proposed
rule also proposed to remove the requirement for schools to offer 1.0
ounce equivalent of grains each day at breakfast. Instead, the daily
and weekly ounce equivalency requirements for the combined component
could be met with meats/meat alternates, grains, or a combination of
both.
Public Comments on 2020 Proposed Rule
USDA received 556 comments on the 2020 proposed rule about the
combined meats/meat alternates and grains component at breakfast, a
majority of which were categorized as ``mixed'' or ``other'' comments.
Overall, 95 comments supported the proposal, including 86 unique
comments, and 41 comments were opposed, including 38 unique comments.
Proponents, including State agencies, industry respondents,
advocacy groups, and school districts, asserted that a combined meats/
meat alternates and grains component would increase the variety of
appealing breakfast options available to schools. Proponents maintained
that this change would deliver protein-rich breakfasts that students
enjoy, which they argued could encourage student participation and
reduce food waste. One school district noted that parents and guardians
often request school breakfasts with more protein and less added
sugars. Other respondents agreed, noting that this change could
decrease the added sugars in school breakfasts.
Proponents maintained that the proposal would simplify regulations
and menu planning. Industry and advocacy groups that supported this
change asserted that the current minimum grains requirement is
burdensome and prevents some schools from offering meats/meat
alternates at
[[Page 32001]]
breakfast. One school district suggested this change would allow for
more creative menu planning. Others, including State agencies and
advocacy groups, provided examples of foods that schools could offer
more easily under this change, such as yogurt parfaits, turkey sausage,
and vegetable omelets. One respondent mentioned that protein-rich
breakfast sandwiches could be offered as grab-and-go items for
students. Another respondent noted that protein foods are ``a great way
to start the day'' and an option that students enjoy.
Some respondents, including advocacy groups and individuals, were
concerned that this change could lead to an increase in schools
offering meat products that are high in saturated fat and sodium.
Opponents suggested that consuming too much meat has adverse health
effects, and some advised USDA that ``processed meats should be very
limited or not consumed at all'' in school meals. Other respondents,
including industry respondents, cautioned against removing the minimum
grains requirement, citing the health benefits of grains and noting
that grains are an important source of fiber. However, proponents
emphasized that a wide variety of nutritious meats/meat alternates may
be offered in school breakfasts. Further, one advocacy group emphasized
that the current weekly saturated fat and sodium restrictions would
limit the amount of processed meat items. A school district agreed,
suggesting that the dietary specifications for calories, sodium, and
saturated fat already constrain the amount of animal fats that can be
offered each school week.
Some respondents offered modifications to the proposal. For
example, an individual argued that each school breakfast should require
grains and meats/meat alternates, while a State agency suggested USDA
allow schools to serve meats/meat alternates without a grain three
times per week, so that two times per week, schools must meet a minimum
grains requirement. An industry respondent suggested a minimum weekly
(rather than daily) grains requirement. Advocacy groups and individuals
suggested placing specific calorie and sodium limits on meats served at
breakfast; presumably, in addition to the weekly calorie and sodium
limits already in place for school breakfasts. While several
respondents noted that this proposal would help address concerns about
added sugars in school breakfast, some respondents, including a State
agency, recommended that USDA also place limits on specific grain items
that are high in added sugars.
Final Rule
This final rule codifies the combined grains and meats/meat
alternates meal component at breakfast and removes the requirement for
schools to offer 1.0 ounce equivalent of grains each day at breakfast.
Schools may offer grains, meats/meat alternates, or a combination of
both to meet this combined component requirement, based on ounce
equivalents. The minimum daily requirement (1.0 ounce equivalent) and
minimum weekly requirements (7.0-9.0 ounce equivalents, depending on
the age/grade group) for the combined component remains the same;
however, this rule allows schools to meet the daily and weekly
requirements by offering grains, meats/meat alternates, or a
combination of both to meet minimum ounce equivalents.
Schools are not required to make any changes to menus under this
provision. However, this change gives menu planners more flexibility
and options to plan breakfast menus that meet student preferences and
are compatible with meal service models, cost considerations, and other
local factors. Schools have discretion to decide what combination of
grains and/or meats/meat alternates to offer at breakfast to meet the
minimum ounce equivalents. The Dietary Guidelines recommend including
both grains and protein foods in healthy eating patterns.\89\ As such,
USDA encourages schools to offer a mix of grains and meats/meat
alternates at breakfast throughout the school week.
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\89\ The Dietary Guidelines include recommendations for ``food
groups--vegetables, fruits, grains, dairy, and protein foods--eaten
at an appropriate calorie level and in forms with limited amounts of
added sugars, saturated fat, and sodium''. U.S. Department of
Agriculture and U.S. Department of Health and Human Services.
Dietary Guidelines for Americans, 2020-2025. 9th Edition. December
2020. Available at: https://www.dietaryguidelines.gov/.
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USDA appreciates comments submitted in response to the 2020
proposed rule that highlighted the importance of reducing added sugars
in school meals. This feedback, and later feedback gathered through
USDA's stakeholder engagement campaign in summer 2022, informed USDA's
proposals to limit added sugars in school meals. USDA agrees with
respondents that allowing schools more flexibility to offer meats/meat
alternates at breakfast will support implementation of the new added
sugars limits outlined in Section 2: Added Sugars.
As discussed in Section 4: Whole Grains, at least 80 percent of the
weekly grains offered at school breakfast must be whole grain-rich, and
the remaining grain items offered may be whole grain-rich or enriched.
Schools that choose to offer a mix of grains and meats/meat alternates
at breakfast will calculate the required whole grain-rich offerings
based on the total amount of grains offered at breakfast during the
week, by ounce equivalents.
According to USDA's School Nutrition and Meal Cost Study,\90\ among
children who participate in the SBP as opposed to skipping breakfast or
eating at home, appealing food was among the top three reasons for
student participation. Relative to school lunch, current school
breakfast participation is low. As suggested by respondents, providing
school nutrition professionals with more flexibility to offer a variety
of breakfast foods that students enjoy could encourage student
participation. For example, this rule allows schools to offer scrambled
eggs, a fruit cup, and low-fat milk as a complete breakfast.
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\90\ See Table 5.2. Mean Percentage of Observed Trays including
Specific Foods and Mean Percentage of Food Wasted in SBP Breakfasts.
U.S. Department of Agriculture, Food and Nutrition Service, Office
of Policy Support, School Nutrition and Meal Cost Study, Final
Report Volume 4: Student Participation, Satisfaction, Plate Waste,
and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, Charlotte
Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, Nora
Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project
Officer: John Endahl. Alexandria, VA: April 2019. Available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
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USDA understands concerns raised by some respondents regarding meat
products that are high in saturated fat and sodium. The dietary
specifications for calories, saturated fat, and sodium remain in place
under this rule, and as detailed in Section 5: Sodium, this rule
implements an additional sodium reduction in school meals. USDA agrees
with respondents that suggested that the dietary specifications
encourage schools to choose options that are low in saturated fat and
sodium. According to USDA's School Nutrition and Meal Cost Study, the
most common categories of meats/meat alternates offered in school
breakfasts in SY 2014-2015 were cheese and yogurt.\91\ USDA encourages
schools
[[Page 32002]]
opting to serve meats/meat alternates at breakfast to offer a wide
variety of nutrient-dense options, including vegetarian options such as
yogurt low in added sugars; \92\ breakfast bean burritos; and eggs.
USDA acknowledges respondent requests to limit ``processed meats'' in
the SBP. However, the dietary specifications for calories, saturated
fat, and sodium already limit the amount of meats with added salt that
are offered in school breakfasts. Schools must plan all meals to meet
the dietary specifications, and these limits provide schools with
flexibility to choose foods that meet student preferences while staying
within a framework that results in nutritious meals. USDA will not
restrict the types of meats permitted at breakfast, beyond existing
food crediting guidelines.
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\91\ The most common categories of meat/meat alternates offered
at breakfast in SY 2014-2015 were cheese (offered on 5.4 percent of
observed trays) and yogurt (offered on 5.0 percent of observed
trays). U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study,
Final Report Volume 2: Nutritional Characteristics of School Meals
by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter,
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April 2019. Available
at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
\92\ Please see Section 2: Added Sugars, for information on the
new added sugars limit for yogurt, which will take effect in SY
2025-2026.
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This provision does not change the breakfast meal pattern
requirements for preschool students. Under 7 CFR 220.8(o), schools
serving breakfasts to children ages 1 through 4 may substitute meats/
meat alternates for the entire grains component up to three times per
week. However, schools are reminded of the existing co-mingling
flexibilities, permitted in USDA guidance.\93\ Schools that serve meals
to preschoolers and K-5 students in the same meal service area at the
same time may choose to serve the K-5 breakfast meal pattern under 7
CFR 220.8 to both groups of children.
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\93\ U.S. Department of Agriculture. Flexibility for Co-Mingled
Preschool Meals: Questions and Answers, June 30, 2017. Available at:
https://www.fns.usda.gov/school-meals/flexibility-co-mingled-preschool-meals-questions-and-answers.
---------------------------------------------------------------------------
Accordingly, this final rule amends 7 CFR 220.8(c) introductory
text and (c)(2), to codify the combined grains and meats/meat
alternates component at breakfast and to remove the requirement for
schools to offer 1.0 ounce equivalent of grains each day at breakfast.
This change provides schools with more menu planning flexibility at
breakfast. Schools are not required to change menus or operations as a
result of this provision.
Section 7: Substituting Vegetables for Grains in Tribal Communities
Current Requirement
Current regulations at 7 CFR 210.10(c)(3), 220.8(c)(3),
225.16(f)(3), and 226.20(f) allow program operators in American Samoa,
Puerto Rico, and the U.S. Virgin Islands to serve vegetables such as
yams, plantains, or sweet potatoes to meet the grains or breads
component.\94\ Additionally, this option is currently available to SFSP
and CACFP sponsors, institutions, and facilities in Guam. The option to
substitute vegetables for grains or breads is intended to accommodate
cultural food preferences and to address product availability and cost
concerns in these outlying areas.
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\94\ Current SFSP regulations at 7 CFR 225.15(f)(3) also allow
sponsors in Trust Territory of the Pacific Islands, and the Northern
Mariana Islands to substitute vegetables for breads. However, these
references are outdated.
---------------------------------------------------------------------------
As detailed in Section 1: Background, USDA sought stakeholder input
when developing the proposed rule. As part of this effort, USDA
conducted listening sessions with Tribal leaders, nutritionists, and
schools in summer 2022. During these listening sessions, Tribal
nutritionists and schools expressed concern that the grains
requirements are a poor nutritional match for Indigenous children
because grains, such as wheat and flour, were not traditionally a part
of their ancestors' diets. Tribal nutritionists and schools requested
Indigenous starchy vegetables be allowed as a grain substitute, similar
to the current option available for child nutrition program operators
in American Samoa, Puerto Rico, and the U.S. Virgin Islands, and for
SFSP and CACFP sponsors, institutions, and facilities in Guam.
Proposed Rule
In response to stakeholder input, USDA proposed to add tribally
operated schools, schools operated by the Bureau of Indian Education,
and schools serving primarily American Indian or Alaska Native children
to the list of schools at 7 CFR 210.10(c)(3) and 220.8(c)(3) that may
serve vegetables to meet the grains requirements. For SFSP and CACFP,
USDA proposed to revise 7 CFR 225.16(f)(3) and 226.20(f) to allow
sponsors, institutions, and facilities, as applicable, that serve
primarily American Indian or Alaska Native children to substitute
vegetables for breads or grains. USDA also proposed to revise the
current regulatory text for NSLP, SBP, SFSP, and CACFP to clarify that
this provision allows the substitution of traditional Indigenous
vegetables, such as prairie turnips. In the proposed SFSP regulatory
text, USDA also removed outdated references to the Trust Territory of
the Pacific Islands and the Northern Mariana Islands. Finally, USDA
proposed to allow all schools, sponsors, institutions, and facilities
in Guam and Hawaii to substitute vegetables for grains or breads, to
reflect cultural food preferences.
Public Comments
USDA received 264 comments on this proposal, including 143 unique
comments. Of these, 104 supported the proposal, including 65 unique
comments, none were opposed, and 154 were mixed, including 78 unique
comments. School nutrition professionals, advocacy groups, professional
organizations, State agencies, and individuals submitted comments on
the proposal.
Several respondents, including a national organization representing
tens of thousands of school nutrition professionals, an advocacy group,
State agencies, individuals, and a form letter campaign, supported the
proposal. One individual emphasized the importance of recognizing
children's personal, cultural, and traditional dietary preferences.
Another individual stated that offering diverse and inclusive meal
options promotes belonging and contributes to children's overall
wellbeing. This respondent further emphasized the importance of
``taking steps toward embracing our differences, celebrating our
diversity, and providing meals that mirror the rich tapestry of
cultures represented within our school communities.'' One advocacy
group supported the proposal, suggesting that it would ``provide
equitable access and outcomes to American Indian and Alaska Native
communities and children.'' A State agency described the proposal as a
``nutritional benefit.'' A professional organization affirmed that
serving culturally responsive meals and snacks is an equitable practice
that may improve meal consumption and strengthen relationships between
providers, families, and participants.
Some respondents provided feedback about USDA's proposal to allow
program operators in Guam and Hawaii to substitute vegetables for
grains or breads. An advocacy group applauded USDA for expanding this
option to program operators in Guam and Hawaii. One professional
organization encouraged USDA to further accommodate the cultural food
preferences of Native Hawaiians. A few other respondents expressed
confusion about how the proposal for Guam and Hawaii would interact
with the proposal for child nutrition program operators on the mainland
that serve primarily American Indian and Alaska Native children. To
clarify, USDA proposed to expand this option to all schools, sponsors,
institutions, and facilities in Guam and Hawaii. Under the proposed
rule, the option to substitute vegetables for grains or breads would be
available to any child nutrition program operator
[[Page 32003]]
located in Guam or Hawaii. In addition, under the proposed rule,
program operators on the mainland that serve primarily American Indian
or Alaska Native children would be eligible to use this option.
Several respondents suggested expanding the proposal, in most
cases, advocating for all schools, sponsors, institutions, and
facilities to be allowed to substitute vegetables for grains or breads,
regardless of their location or participant demographics. One advocacy
group suggested expanding the menu planning option to participants from
other demographic groups who consume starchy vegetables in place of
grains. Going further, a dietitian suggested that expanding the option
to all schools, sponsors, institutions, and facilities would eliminate
confusion in menu planning. An advocacy group agreed, asserting that
vegetable consumption is lacking among all children and that allowing
this option for all sites would help reduce sugar, especially at
breakfast. A professional organization supported expanding this
provision to all schools to avoid excluding any students. An advocacy
group agreed, noting that the vast majority of American Indian and
Alaska Native children attend public schools that are not tribally
operated or majority American Indian or Alaska Native. This respondent
concluded that, as proposed, the option may not have its intended
impact. A few other respondents raised concerns about the limited focus
of the provision, but instead of expanding it, recommended not
finalizing it. For example, a State agency acknowledged the importance
of offering culturally appropriate foods in the child nutrition
programs but raised equity concerns given the narrow focus of the
provision; this State agency cautioned against finalizing the proposal.
A school nutrition professional claimed that, as proposed, this menu
planning option would create division and confusion regarding who can
implement the provision. A few respondents offered other suggestions. A
form letter suggested that USDA require vegetables offered in place of
grains to be prepared in ways that align with traditional preparations,
such as baking or boiling. A professional organization suggested that
USDA limit substitutions under this provision to starchy vegetables
only. This respondent also advocated for more prescriptive language on
this provision's eligibility criteria to preserve program integrity and
ensure the intended populations are served.
Some respondents requested clarification or additional support. A
few respondents, including a State agency and professional
organization, requested guidance to support implementation of this
provision, including guidance on determining whether a program operator
qualifies to use this option. A professional organization expressed
concerns about possible administrative burden, specifically for
enrolled CACFP sites, further advocating for this provision to be
expanded to all program operators. This respondent argued that
expanding this option to all operators would prevent administrative
burden and promote inclusivity. A form letter campaign did not cite any
specific concerns, but asked USDA to ensure that the administrative
burden associated with enacting the change will be minimal. A State
agency asked for clarification on whether the menu planning option
applies to the infant meal pattern. This respondent did not support
allowing this option for infants, explaining that allowing vegetables
to substitute for other food sources in the infant meal pattern, such
as infant cereal, may reduce critical sources of iron in an infant's
diet. Another State agency asserted that USDA would need to provide
clear guidance about the serving sizes of vegetables that would be
required to meet the grains requirements.
In the proposed rule, USDA explained that the list of vegetables
included in the proposed regulatory text was not exhaustive. However,
USDA encouraged public input on any other vegetables that should be
listed as examples in the regulatory text, and some respondents shared
feedback. Several advocacy groups suggested that squash, cassava
(yuca), and taro would be suitable substitutions for grains and
recommended including them as examples. A State agency suggested that
Native Hawaiian traditional vegetables such as taro, poi, breadfruit,
Okinawan sweet potato, and Molokai sweet potato be included in the
regulatory text as examples of vegetables that may be substituted for
grains. One professional organization asked USDA to clarify whether all
vegetables can be substituted for grains. Another proponent recommended
that instead of allowing any vegetable to substitute for grains, as
proposed, that USDA set standards about which vegetable subgroups can
be substituted for grains to ensure that the vegetables are
nutritionally comparable to grains.
In addition to general feedback on the proposal, USDA requested
public input on additional menu planning options that would improve the
school meal programs for American Indian and Alaska Native children by
asking the following question:
Are there other specific areas of the school meal pattern
that present challenges to serving culturally appropriate meals for
American Indian and Alaska Native children, specifically regarding any
regulatory requirements in 7 CFR 210.10 and 220.8?
A few respondents provided input on specific areas of the school
meal patterns that present challenges to serving culturally appropriate
meals. One State agency identified that barriers to serving hunted game
meats make it challenging to serve culturally appropriate meals to
American Indian and Alaska Native children. This respondent also
mentioned that milk is not a part of the traditional eating pattern for
American Indian and Alaska Native communities. Similarly, an individual
stated the milk requirement is challenging to implement due to the high
prevalence of lactose intolerance among American Indian and Alaska
Native populations. Other respondents mentioned challenges with food
crediting. A State agency encouraged USDA to ``simplify the crediting
process for scratch-cooked meals'' to incentivize schools to scratch
cook culturally relevant meals. Similarly, an advocacy group suggested
USDA consider a ``simplified'' crediting model that would facilitate
scratch cooking and procurement of minimally processed products.
Lastly, a form letter campaign voiced concerns about the potential for
additional, case-by-case menu planning options due to the
administrative burden of such a process. Instead, this form letter
recommended that USDA address any barriers to serving culturally
appropriate meals through comprehensive changes to the meal patterns.
Final Rule
The final rule amends 7 CFR 210.10(c)(3) and 220.8(c)(3) to allow
school food authorities and schools that are tribally operated,
operated by the Bureau of Indian Education, and that serve primarily
American Indian or Alaska Native children to serve vegetables to meet
the grains requirement in NSLP and SBP. For SFSP and CACFP, USDA
finalizes the proposal to revise 7 CFR 225.16(f)(3) and 226.20(f) to
allow sponsors, institutions, and facilities, as applicable, that serve
primarily American Indian or Alaska Native participants to substitute
vegetables for grains or breads. Additionally, this final rule allows
all schools, sponsors, institutions, and facilities in Guam and Hawaii
to serve vegetables to meet the grains or breads
[[Page 32004]]
requirement, and in the SFSP regulatory text, removes outdated
references to the Trust Territory of the Pacific Islands and the
Northern Mariana Islands. Lastly, for all child nutrition programs
applicable to this provision, this final rule clarifies that any
creditable vegetable can be substituted for grains or breads.
While the proposed rule only listed ``schools'' in the NSLP and SBP
regulatory text, this final rule clarifies that this option is
available to ``school food authorities and schools'' that qualify. This
change responds to comments that encouraged USDA to ensure that the
administrative burden associated with enacting the change is minimal.
By allowing implementation at the school food authority level, this
final rule simplifies use of this option for school food authorities
that qualify and reduces the documentation burden. Instead of
maintaining documentation for all qualifying schools, school food
authorities that qualify would maintain documentation at the school
food authority level.
Program operators in Guam and Hawaii are not required to submit a
request for approval to use this menu planning option; it is
automatically available to any school, sponsor, institution, or
facility in Guam or Hawaii that chooses to use it. Therefore, upon
implementation of this final rule, all schools, sponsors, institutions,
and facilities located in American Samoa, Guam, Hawaii, Puerto Rico, or
the U.S. Virgin Islands are eligible for this option; it is not
necessary for program operators in these specific areas to maintain
documentation to demonstrate eligibility for this option. However,
school food authorities or schools that are tribally operated, operated
by the Bureau of Indian Education, or program operators that serve
primarily American Indian or Alaska Native children must maintain
documentation to demonstrate that they qualify if they choose to use
this option.
For the NSLP and SBP, the school food authority is responsible for
maintaining documentation to demonstrate that the school food authority
or its schools qualify to use this option. If the school food authority
is tribally operated, is operated by the Bureau of Indian Education, or
serves primarily American Indian or Alaska Native students, then the
school food authority would maintain school food authority-level
documentation of eligibility. If individual schools within the school
food authority qualify for this option, then the school food authority
would maintain documentation for its qualifying schools, as applicable.
As described in the proposed rule, school food authorities or schools
``serving primarily American Indian or Alaska Native children'' include
school food authorities or schools where American Indian or Alaska
Native children represent the largest demographic group of enrolled
children. USDA will issue guidance on acceptable data that can be used
to report student demographics, which may include participant self-
reporting, school data, or census data. School food authorities must
maintain this documentation for program reviews. For example:
For school food authorities that are tribally operated or
operated by the Bureau of Indian Education, an example of documentation
is a certifying statement indicating the school food authority is
tribally operated or operated by the Bureau of Indian Education.
For schools serving primarily American Indian or Alaska
Native children, an example of documentation may be aggregate data of
student demographics, such as participant self-reporting, school data,
or census data.
For the SFSP and CACFP, a sponsor, institution, or facility that
chooses to use this menu planning option must maintain documentation
demonstrating that the site serves primarily American Indian or Alaska
Native participants. USDA will issue guidance on acceptable data that
can be used to report participant demographics, which may include
participant self-reporting, school data, or census data. For example:
For enrolled sites, the sponsor, institution, or facility
determines, based on participant self-reporting, that American Indian
or Alaska Native participants represent the largest demographic group
of enrolled participants.
For enrolled sites, the sponsor, institution, or facility
provides a certifying statement indicating that the site primarily
serves American Indian or Alaska Native participants.
For non-enrolled sites, the sponsor, institution, or
facility determines that American Indian or Alaska Native participants
represent the largest demographic group of participants served by the
site, based on school or census data.
This final rule allows any vegetable to substitute for the grains
or bread component. However, USDA emphasizes the importance of
traditional and culturally relevant vegetables, and this final rule
provides examples of traditional and cultural vegetables, such as
prairie turnips and breadfruit, in the revised regulatory text at 7 CFR
210.10(c)(3), 220.8(c)(3), 225.16(f)(3), and 226.20(f). Respondents
provided examples such as squash, cassava (yuca), and taro, all of
which would be traditional and culturally relevant vegetables that may
substitute for grains or breads under the final rule.
Some respondents asked USDA to establish vegetable subgroup
requirements for the provision, or to limit this provision to
vegetables prepared in specific ways. USDA is not requiring specific
vegetable subgroups or types of preparation in this final rule to
minimize burden for program operators that choose to use this
flexibility. This approach is imperative for program operators of the
SFSP and CACFP because SFSP and CACFP meal patterns do not require
vegetable subgroups and a vegetable subgroup requirement for this
provision could create barriers to implementation in these programs.
Allowing program operators the flexibility to offer vegetables from any
subgroup in place of grains or breads allows for a variety of
vegetables to be offered, many of which are underconsumed among all
populations.\95\
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\95\ According to the Dietary Guidelines, ``Almost 90 percent of
the U.S. population does not meet the recommendation for vegetables.
In addition, with few exceptions, the U.S. population does not meet
intake recommendations for any of the vegetable subgroups.''
Further, according to the Dietary Guidelines, ``For most
individuals, following a healthy eating pattern will require an
increase in total vegetable intake and from all vegetable subgroups,
shifting to nutrient-dense forms, and an increase in the variety of
different vegetables consumed over time.'' See page 31. U.S.
Department of Agriculture and U.S. Department of Health and Human
Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://www.dietaryguidelines.gov/.
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A few respondents requested clarification on specific questions. A
State agency requested clarification on whether this option would be
applicable to the infant meal pattern. This rule does extend the option
to the infant meal pattern. Extending the option to substitute
vegetables for grains in the infant meal pattern allows infants to also
consume foods, and develop taste preferences, aligned with an
Indigenous diet. USDA recognizes the concern that allowing this
flexibility for infants could result in a reduced consumption of
critical nutrients, such as iron. However, the infant meal pattern
allows a variety of foods to meet the required food components for
meals and snacks, and only currently requires a grain item at snack
when a child is developmentally ready to accept those foods. Allowing
sponsors, institutions, and facilities to serve culturally responsive
meals and snacks can improve meal consumption and strengthen
relationships between providers, families, and participants.
[[Page 32005]]
USDA appreciates public feedback on the menu planning options for
American Indian and Alaska Native children. Overall, respondents
expressed appreciation for USDA's efforts to improve the child
nutrition programs for American Indian or Alaska Native children. In
addition to these supportive comments, several respondents recommended
that USDA expand the proposed menu planning option to more, or even
all, child nutrition program operators. USDA acknowledges that
additional schools, sponsors, institutions, and facilities may benefit
from this provision and appreciates this feedback. However, as
proposed, this provision was intended for certain schools, sponsors,
institutions, and facilities. Other program operators that were not
covered by the proposal, as well as State agencies responsible for
program monitoring, did not have the opportunity to provide public
comment on a potential broader change. With the exception of clarifying
that this option may be applied at the school food authority level,
this final rule does not expand this option to additional program
operators, beyond those covered by the proposed rule.
This final rule is intended to support American Indian or Alaska
Native participants in child nutrition programs and to uphold USDA's
commitment to advancing equity, as detailed in the Department's Equity
Action Plan.\96\ In this plan, USDA outlines its commitment to
advancing equity, including a focus on increasing Tribal trust. The
Equity Action Plan highlights the importance of considering policy
design and implementation to ensure Tribal communities have equitable
access to Federal programs and services, including incorporating
Indigenous values and perspectives in program design and delivery.
While this final rule does not have as broad of a reach as some
respondents requested, USDA remains committed to promoting equitable
access to the child nutrition programs. USDA will continue to work with
its partners to make the child nutrition programs more inclusive for
all child and adult participants.
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\96\ U.S. Department of Agriculture, USDA Equity Action Plan in
Support of Executive Order (E.O.) 13985 Advancing Racial Equity and
Support for Underserved Communities through the Federal Government,
February 10, 2022. Available at: https://www.usda.gov/equity/action-plan.
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Accordingly, this final rule amends 7 CFR 210.10(c)(3) and
220.8(c)(3), to allow school food authorities and schools that are
tribally operated, operated by the Bureau of Indian Education, and that
serve primarily American Indian or Alaska Native children to the list
of schools \97\ that may serve vegetables to meet the grains
requirement. For SFSP and CACFP, this final rule amends 7 CFR
225.16(f)(3) and 226.20(f) to allow sponsors, institutions, and
facilities, as applicable, that serve primarily American Indian or
Alaska Native participants to substitute vegetables for grains or
breads. This final rule also amends 7 CFR 210.10(c)(3), 220.8(c)(3),
225.16(f)(3), and 226.20(f) to allow all schools, sponsors,
institutions, and facilities in Guam and Hawaii to serve vegetables to
meet the grains or breads requirement. These changes provide child
nutrition program operators an optional menu planning flexibility.
Program operators are not required to change menus or operations as a
result of this provision.
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\97\ As noted above, USDA currently allows schools in American
Samoa, Puerto Rico, and the U.S. Virgin Islands to serve vegetables
such as yams, plantains, or sweet potatoes to meet the grains
component. See 7 CFR 210.10(c)(3) and 220.8(c)(3).
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Section 8: Traditional Indigenous Foods
Current Requirement
Information about crediting foods in the school meal programs is
primarily shared with program operators through USDA guidance, not
through regulation. While traditional Indigenous foods are not
explicitly mentioned in the school lunch and breakfast program
regulations, they may be served in reimbursable school meals in
accordance with USDA guidance.
USDA does not define the term ``traditional foods;'' however, the
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5))
defines traditional food as ``food that has traditionally been prepared
and consumed by an [American] Indian tribe'' and includes the following
example foods in its definition: wild game meat, fish, seafood, marine
mammals, plants, and berries. USDA acknowledges that there are 574
federally recognized Tribes in the U.S. and appreciates the importance
of recognizing the diversity of American Indian and Alaska Native
cultures and traditions, including food traditions.
In 2015, USDA issued policy guidance \98\ about serving traditional
Indigenous foods in the child nutrition programs. This guidance
explained that if a food is served as part of a reimbursable meal, but
not listed in the Food Buying Guide for Child Nutrition Programs (Food
Buying Guide), the yield information of a similar food or in-house
yield \99\ may be used to determine a food's contribution toward meal
pattern requirements. The 2015 guidance also explained how to credit
certain traditional foods, such as wild rice, blue cornmeal, and ground
buffalo. In 2023, this guidance, titled Crediting Traditional
Indigenous Foods in Child Nutrition Programs, was revised to further
clarify how to credit traditional Indigenous foods and to expand the
list of traditional Indigenous foods that credit similarly to products
already listed in the Food Buying Guide. Additional resources, such as
USDA's fact sheet, Bringing Tribal Foods and Traditions into
Cafeterias, Classrooms, and Gardens \100\ encourage schools to
incorporate traditional Indigenous foods in school menus.
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\98\ U.S. Department of Agriculture, Child Nutrition Programs
and Traditional Foods, July 15, 2015. Available at: https://www.fns.usda.gov/cn/child-nutrition-programs-and-traditional-foods.
\99\ Information on calculating in-house yield data may be found
on page I-5 of the Food Buying Guide.
\100\ U.S. Department of Agriculture, Bringing Tribal Foods and
Traditions Into Cafeterias, Classrooms, and Gardens, August 2017.
Available at: https://www.fns.usda.gov/f2s/tribal-foods.
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Proposed Rule
USDA proposed to explicitly state in regulation that traditional
foods may be served in reimbursable school meals. The intent of this
proposal was to emphasize USDA's support for integrating traditional
Indigenous foods into the school meal programs. While many traditional
Indigenous foods may already be served in the programs under existing
USDA guidance, USDA expected that this regulatory change would help to
address the perception that traditional foods are not creditable, draw
attention to the option to serve traditional Indigenous foods, and
support local efforts to incorporate traditional Indigenous foods into
school meals.
Public Comments
USDA received over 200 comments on the proposal to add
``traditional foods'' to the regulatory text. Of these, 168 supported
the proposal, including 68 unique comments. While only one respondent
requested no changes, 70 respondents, including 50 unique comments,
provided additional feedback on the proposal.
Many respondents, including State agencies, advocacy groups, a
national organization representing tens of thousands of school
nutrition professionals, school districts, a form letter campaign, and
individuals, expressed support for the traditional foods provision and
including traditional Indigenous foods in school meals. One proponent
explained that including traditional foods in school
[[Page 32006]]
meals allows Indigenous children to meet their nutritional needs in a
way that connects them with their culture. Another proponent emphasized
the importance of connecting children with traditional foods and
supported greater inclusion of traditional foods to help address health
disparities. An advocacy group suggested the proposal would provide
clarity and support to schools that want to incorporate traditional
foods into their menus. An individual stated the proposal is important
because ``school meals should reflect the cultural heritage and values
of the students they serve.'' Similarly, an advocacy group suggested
that the proposal would encourage schools to offer more traditional
foods, which can increase school meal participation and honor students'
cultural traditions. Another advocacy group stated the proposal
represents ``progress toward making school meals standards more
equitable.''
Several respondents recommended that USDA broaden the scope of this
provision. For example, a school district and an advocacy group
recommended that USDA encourage all schools to offer foods considered
traditional to all cultures, not just American Indian and Alaska Native
communities. Similarly, several advocacy groups suggested that USDA
consider additional ways meal pattern requirements can be more
inclusive of all students' ethnicities and cultural backgrounds. One
advocacy group encouraged USDA to provide training and technical
assistance, such as guidance, menus, and recipes, to support the
inclusion of foods traditional to a variety of cultures. Another
advocacy group stated that more culturally relevant menu planning
resources would ``support the breadth of diverse traditions and
cultures across our nation.''
A few proponents offered suggestions to help schools fully realize
the intent of this change. An advocacy group suggested that USDA seek
broad input from community members to ensure culturally relevant foods
are included in the school meal programs without unnecessary barriers.
A form letter campaign encouraged USDA to engage American Indian and
Alaska Native communities when implementing this provision and stated
that the expansion of traditional and cultural meal options would
advance racial equity. An advocacy group suggested USDA ensure that
``traditional foods are readily available in USDA foods, particularly
through Tribal producers.''
In addition to requesting general feedback on the proposal, USDA
requested public input on the following questions:
USDA has provided guidance \101\ on crediting certain
traditional foods. Are there any other traditional foods that schools
would like to serve, but are having difficulty serving? If so, what
specific challenges are preventing schools from serving these foods?
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\101\ U.S. Department of Agriculture, Child Nutrition Programs
and Traditional Foods, July 15, 2015. Available at: https://www.fns.usda.gov/cn/child-nutrition-programs-and-traditional-foods.
---------------------------------------------------------------------------
Which traditional foods should USDA provide yield
information for and incorporate into the Food Buying Guide?
Is ``traditional foods,'' as described in the Agriculture
Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), an
appropriate term to use, or do stakeholders recommend a different term?
A few respondents provided input on the first question regarding
traditional foods that are challenging to serve. A State agency noted
that hunted game, foraged fruits, and freshly caught fish are
challenging to serve due to local, State, and Federal food safety
requirements. Another State agency provided feedback from a Tribal
school in their State; the Tribal school explained that they cannot
purchase venison from their local vendor and cited challenges serving
maple syrup harvested by community members. One school nutrition
professional mentioned that they have no difficulty serving traditional
foods in their local area.
Several respondents provided input on the second question, asking
which traditional foods USDA should consider adding to the Food Buying
Guide. A professional organization suggested USDA add wild game
including moose, reindeer, and caribou; plants such as kelp and Eskimo
potatoes; and fruits such as salmonberries. This respondent described
these foods as nutritious and affirmed that these specific foods are
important cultural foods for Alaska Native students. A State agency
listed whitefish, walleye, and hickory nuts as traditional foods to be
added to the Food Buying Guide. In a few cases, respondents recommended
adding items that are already included in the Food Buying Guide, such
as cranberries, chestnuts, venison, and bison.
Some respondents suggested adding foods traditional to other
cultures to the Food Buying Guide. One advocacy group recommended USDA
expand the definition of traditional foods to include all cultures and
provided several suggestions of foods to add, including bacalao (dried
and salted codfish), broccoflower, chorizo, crowder peas,
huckleberries, naan, smoked eel, and ulu. A school nutrition
professional suggested adding Caribbean, Indian, and Asian foods to the
Food Buying Guide. A few advocacy groups recommended adding bone broth,
nori (dried, edible seaweed), pupusas, arepas, yucca, and curry dishes.
Another respondent suggested that USDA credit breadfruit and taro as
grains and cited their nutritional benefits. An individual and an
advocacy group provided a list of native Hawaiian foods to include,
such as purple sweet potato, taro, poi, seaweed, and coconut. For
clarification, coconut, seaweed, poi, breadfruit, and taro are already
included in the Food Buying Guide.
A few respondents provided input on the third question, which asked
whether ``traditional foods,'' as defined in the Agriculture
Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), is an
appropriate term to use in regulation. An advocacy group and a few
State agencies expressed support for the term ``traditional foods'' as
defined in the Agricultural Improvement Act of 2014. Another State
agency acknowledged the importance of cultural foods in school meals
but noted that foods considered to be ``traditional'' may have changed
over time and questioned use of this term in the regulation. An
individual recommended that foods traditional to Native Hawaiians be
considered ``traditional foods'' for the purpose of the regulation. A
professional organization encouraged USDA to expand its use of the term
``traditional foods'' to include other cultures, stating that
``traditional foods should not be limited to those consumed by an
American Indian Tribe but be inclusive of other diverse cultures.'' A
State agency supported inclusion of traditional foods and emphasized
the importance of a clear explanation of what qualifies as a
traditional food.
Oral comments were submitted during a Tribal Consultation conducted
by USDA with Tribal leaders in spring 2023. During this session, many
participants expressed support for the term ``traditional foods'' as
defined in the Agricultural Improvement Act of 2014 and as used in this
provision. One Tribal leader mentioned that this term is recognizable
among many Tribes. Consultation participants provided additional input
on school meals. One Tribal leader acknowledged the challenge in
establishing nutrition requirements that accommodate all communities
because all Tribes are different. Another participant expressed
concerns about added sugars and risk for diabetes and other chronic
diseases among the American Indian and Alaska
[[Page 32007]]
Native populations. This participant claimed that in their view,
improving the nutritional quality of school meals is a greater concern
than serving traditional foods. Additionally, Tribal leaders cited meal
costs and reimbursement rates as barriers to including more traditional
foods in school menus.
Final Rule
This final rule codifies the proposal to explicitly state in
regulation that traditional Indigenous foods may be served in
reimbursable school meals. Regulations at 7 CFR 210.10(c)(7) and
220.8(c)(4) will include the definition of traditional foods from the
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)),
which defines traditional food as ``food that has traditionally been
prepared and consumed by an [American] Indian tribe,'' including wild
game meat, fish, seafood, marine mammals, plants, and berries. As with
all other foods offered in school meals, traditional Indigenous foods
will continue to be subject to meal pattern requirements, including the
weekly dietary specifications. While the proposed rule used the term
``traditional foods,'' in this final rule, USDA uses the term
``traditional Indigenous foods'' to better communicate the focus of
this provision.
USDA appreciates public comments received in response to this
provision and feedback that stakeholders provided on serving
traditional Indigenous foods in school meals. USDA recognizes that
stakeholders support diversity in the child nutrition programs,
including offering foods that are significant to students of all
cultural backgrounds. As discussed in Section 14: Meal Modifications,
USDA supports efforts to consider participant preferences when planning
and preparing meals, including cultural food preferences. However, for
this specific provision, USDA will use the term ``traditional
Indigenous foods'' and use the definition of ``traditional foods'' from
the Agriculture Improvement Act of 2014 and as referenced in the
proposed rule. Food sovereignty and traditional foodways are critical
in empowering Tribal communities' self-determination and incorporating
American Indian and Alaska Native perspectives into USDA's nutrition
assistance programs. USDA will continue to encourage program operators
to develop menus that are culturally appropriate for all populations
and that meet the needs of their communities. USDA's partnership with
the Institute of Child Nutrition offers resources, such as the Child
Nutrition Recipe Box and additional training materials, to support the
integration of cultural foods in child nutrition programs.
Additionally, USDA Foods in Schools provides a list of Available Foods
each school year for program operators to purchase locally grown and
produced foods.\102\
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\102\ U.S. Department of Agriculture. USDA Foods Available Foods
List for SY 2024. January 9, 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available.
---------------------------------------------------------------------------
USDA appreciates stakeholder suggestions for traditional Indigenous
foods, as well as other cultural foods, that should be added to the
Food Buying Guide. In 2023, USDA added new yield data for highly
requested foods such as chokecherries and taro to the Food Buying
Guide. Additional traditional Indigenous foods that respondents
suggested, such as kelp, are described in the Food Buying Guide as
similar to other food items with comparable yield information; this
information can be used when crediting similar foods for a reimbursable
meal. Input provided through public comment will be beneficial as USDA
continues its long-term initiative to identify more traditional foods
to incorporate into the Food Buying Guide. USDA also appreciates the
importance of continuing to engage with Tribal leaders and community
members to fully realize the intent of this change. Tribal stakeholders
and leaders provided USDA with valuable input on this rulemaking
through listening sessions and through Tribal Consultation. USDA
greatly appreciates this input and recognizes the importance of
continuing to work together on other initiatives to improve the child
nutrition programs for American Indian and Alaska Native children.
Some respondents suggested that foods from other cultures be added
to the Food Buying Guide. Many cultural foods, such as arepas and
pupusas, are creditable in school meal programs if made with creditable
ingredients, such as corn masa, masa harina, nixtamalized corn flour,
and nixtamalized cornmeal. Respondents also suggested foods like curry
dishes, which are often prepared with vegetables and meats/meat
alternates that are already listed in the Food Buying Guide. USDA
appreciates respondent feedback and continues to encourage program
operators to develop diverse menus that meet the needs and preferences
of the students they serve.
USDA understands that this change is just one part of a larger
effort to support the service of traditional Indigenous foods in school
meals and remains committed to promoting traditional foodways through
its policies and guidance. USDA's website, Serving Traditional
Indigenous Foods in Child Nutrition Programs,\103\ hosts a collection
of resources to support program operators working to incorporate
traditional Indigenous foods in reimbursables meals, including fact
sheets, recipes, crediting tip sheets, and other resources. This web
page provides guidance on sourcing locally grown and raised traditional
foods. USDA will continue to update this web page with additional tools
and resources as they are developed.
---------------------------------------------------------------------------
\103\ U.S. Department of Agriculture, Serving Traditional
Indigenous Foods in Child Nutrition Programs. Available at: https://www.fns.usda.gov/cn/serving-traditional-indigenous-foods.
---------------------------------------------------------------------------
Accordingly, this final rule amends 7 CFR 210.10(c)(7) and
220.8(c)(4) to explicitly state in regulation that traditional
Indigenous foods, in accordance with current meal pattern requirements,
may be served in reimbursable school meals. Schools are not required to
change menus or operations as a result of this technical change.
Section 9: Afterschool Snacks
Current Requirement
Afterschool snacks may be offered to children through the NSLP
(``NSLP snacks'') or through the CACFP (``CACFP snacks''). According to
the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)), the nutrition
requirements for CACFP snacks \104\ also apply to NSLP snacks. However,
current regulations at 7 CFR 210.10(o)(2) that outline the nutrition
requirements for NSLP snacks served to K-12 children are outdated and
do not reflect current statutory requirements. This preamble will refer
to afterschool snacks served by schools under 7 CFR part 210 as ``NSLP
snacks.''
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\104\ The nutrition requirements for snacks served through the
CACFP are found at 7 CFR 226.20(c)(3).
---------------------------------------------------------------------------
Proposed Rule
USDA proposed to align the nutrition requirements for NSLP snacks
served to K-12 children (ages 6 through 18) at 7 CFR 210.10(o) with the
CACFP snack requirements, consistent with statute. Under the proposed
rule, the existing nutrition requirements for NSLP snacks served to
preschoolers and infants, which already follow CACFP requirements,
would remain in effect. The proposed rule also included a terminology
change, to remove all references to ``meal supplements'' in 7 CFR part
210 and replace them with the term ``afterschool snacks.''
Additionally, in the 2020 proposed rule, Simplifying Meal Service
and
[[Page 32008]]
Monitoring Requirements in the National School Lunch and School
Breakfast Programs,\105\ USDA proposed to revise the definition of
Child in 7 CFR 210.2, to clarify that children through the age of 18
may receive NSLP snacks. The proposal to update the definition of Child
also sought to align program regulations with statutory requirements
(NSLA, 42 U.S.C. 1766a(b)).
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\105\ Simplifying Meal Service and Monitoring Requirements in
the National School Lunch and School Breakfast Programs (85 FR 4094,
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
---------------------------------------------------------------------------
Public Comments
USDA received 117 comments on the NSLP snacks proposal in the 2023
rule, including 111 unique comments. Of these, 58 supported the
proposal, 3 were opposed, and 56 were mixed. State agencies, advocacy
groups, dietitians, and individuals submitted comments in response to
this proposal. In addition, USDA received five comments in response to
the 2020 proposal to revise the definition of Child; all five
respondents supported the proposed change.
Regarding the NSLP snacks provision in the 2023 proposed rule, one
dietitian suggested the proposal would streamline program requirements,
describing it as a positive change. Another proponent agreed, noting
the change would align two similar programs without creating
administrative burden. A third respondent affirmed the benefits of
aligning program requirements, stating that the proposed change would
be beneficial for multi-program sponsors, and a school district that
currently participates in multiple child nutrition programs agreed. An
advocacy group supported the proposal and described the CACFP meal
pattern as ``nutritious.'' Another advocacy group supported changing
the term ``meal supplements'' to ``afterschool snacks,'' arguing that
``afterschool snacks'' is easier to understand. One proponent supported
applying the product-based added sugars limits for yogurt and breakfast
cereals to NSLP snacks; these limits are discussed further in Section
2: Added Sugars. While not directly related to the proposal, an
advocacy group emphasized the importance of afterschool programs in
general, noting that children need nutritional support during the hours
after school.
One respondent questioned why it is necessary to align the NSLP
snacks meal patterns with CACFP. An advocacy group opposed eliminating
grain-based desserts from NSLP snacks, which they argued would greatly
decrease options for schools. A few respondents raised concerns about
specific items that are identified as grain-based desserts and are
commonly served as afterschool snacks, such as granola and cereal bars.
Several other respondents agreed, noting that schools could experience
``menu fatigue'' due to limited options if grain-based desserts are no
longer permitted as NSLP snacks. A State agency cautioned that the
proposal to serve at least one whole grain-rich grain each day may be
challenging for NSLP snacks operators, given that there is already a
whole grain-rich requirement for school meals. Similarly, another State
agency questioned how the proposed NSLP snacks whole grain-rich
requirement would interact with the existing whole grain-rich
requirements for school lunch and breakfast. This State agency
maintained that while they usually support efforts to align
regulations, some of the differences between the school meal programs
and CACFP--such as the whole grain-rich requirements--could lead to
confusion. An industry respondent also encouraged USDA to reconsider
the proposed NSLP snacks whole grain-rich requirement, citing concerns
about requirements that are ``complicated'' and ``hard to follow.''
Other respondents requested clarification or offered suggestions.
An advocacy group recommended that USDA reconsider the serving size
requirements for fruits and vegetables in afterschool programs,
especially for younger children. This respondent suggested that the
current serving size for fruits and vegetables (\3/4\ cup) is too large
for elementary schoolchildren. Another advocacy group encouraged USDA
to provide ``an adequate timeline'' for implementation, while an
industry respondent supported training and technical assistance for
schools.
Final Rule
This final rule updates NSLP snacks meal pattern requirements for
K-12 children to reflect CACFP snack requirements, consistent with the
intent of the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)).
This change must be implemented by July 1, 2025. Program operators have
the option, but are not required, to implement this change early.
Additionally, this rule finalizes the provision from the 2020 proposed
rule to revise the definition of Child. This change clarifies that
children who are age 18 and under at the start of the school year may
receive reimbursable NSLP snacks, consistent with statute (NSLA, 42
U.S.C. 1766a(b)). As with the proposed rule, this final rule changes
all regulatory references in 7 CFR part 210 from ``meal supplements''
to ``afterschool snacks.'' This rule does not change requirements for
NSLP snacks served to preschoolers and infants; existing requirements
for NSLP snacks served to preschoolers and infants remain in effect.
In a public comment, one respondent asked why it is necessary for
NSLP snacks meal pattern requirements to follow CACFP requirements. As
noted in the proposed rule and above, this change is required by
statute. According to the National School Lunch Act (NSLA, 42 U.S.C.
1766a(d)), the nutritional requirements for snacks served through the
CACFP also apply to afterschool snacks served by schools. Consistent
with statutory requirements, this final rule updates regulations at 7
CFR 210.10(o)(2) outlining the nutrition requirements for afterschool
snacks served to K-12 children.
Under the final rule, by July 1, 2025, NSLP snacks served to K-12
children must include two of the following five components:
Milk
Meats/meat alternates
Vegetables
Fruits
Grains
The following CACFP snack requirements for children 6 years and
older also apply to NSLP snacks served to K-12 children. These
requirements for NSLP snacks must be implemented by July 1, 2025:
Only one of the two components served at snack may be a
beverage.
Milk must be fat-free or low-fat and may be unflavored or
flavored.
Grain-based desserts do not count toward the grains
requirement.
Foods that are deep-fat fried on-site are not reimbursable
NSLP snacks.
As detailed in Section 2: Added Sugars, breakfast cereals
must contain no more than 6 grams of added sugars per dry ounce.\106\
---------------------------------------------------------------------------
\106\ While existing CACFP regulations limit breakfast cereals
to no more than 6 grams of total sugars per dry ounce, in this final
rule, USDA has opted to delay implementation of the breakfast
cereals limit in NSLP snacks to SY 2025-2026, when USDA will
implement the added sugars limit for NSLP, SBP, CACFP, and NSLP
snacks.
---------------------------------------------------------------------------
As detailed in Section 2: Added Sugars, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce).\107\
---------------------------------------------------------------------------
\107\ While existing CACFP regulations limit yogurt to no more
than 23 grams of total sugars per 6 ounces, in this final rule, USDA
has opted to delay implementation of the yogurt limit in NSLP snacks
to SY 2025-2026, when USDA will implement the added sugars limit for
NSLP, SBP, CACFP, and NSLP snacks.
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[[Page 32009]]
In the proposed rule, USDA proposed to apply the per day juice
limit and the per day whole grain-rich requirement used in the CACFP to
NSLP snacks served to K-12 children. USDA is not finalizing the
proposed per day juice limit or the proposed per day whole grain-rich
requirement for NSLP snacks served to K-12 children. Instead, this
final rule applies the weekly juice limit and the weekly whole grain-
rich requirement used in the school meal programs to NSLP snacks. This
change, which results in NSLP snacks that are nutritionally similar to
snacks offered through the CACFP, is due to operational differences in
the requirements for lunches and breakfasts served to K-12 children
compared to preschool children. For K-12 children, the NSLP and SBP
require that no more than half of the weekly fruit or vegetable
offerings may be in the form of juice. As discussed in Section 4: Whole
Grains, the whole grain-rich requirements for NSLP and SBP meals served
to K-12 students also apply on a weekly, rather than daily, basis. As
pointed out in public comments, implementing an additional per day
requirement, when existing juice limitations and whole grain-rich
requirements for NSLP and SBP already apply per week, would be
confusing for schools that offer students school meals and NSLP snacks.
Therefore, this final rule instead applies the following weekly
requirements to NSLP snacks:
No more than half of the weekly fruit or vegetable
offerings at NSLP snacks may be in the form of juice.
At least 80 percent of the grains offered weekly in NSLP
snacks must be whole grain-rich, based on ounce equivalents of grains
offered.
USDA has determined that this approach will result in NSLP snacks
that are nutritionally comparable to snacks offered through the CACFP,
consistent with the intent of the statute, while avoiding operational
complexity. For example, under this final rule, NSLP snacks may include
juice, but will be required to offer fruits and vegetables in other
forms. Regarding fruit juice, the final rule Child and Adult Care Food
Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free
Kids Act of 2010 noted that, ``The Dietary Guidelines recommends that
at least half of fruits should come from whole fruits and found that
children age 1 to 3 years consume the highest proportion of juice to
whole fruits.'' \108\ The NSLP snacks juice limit finalized in this
rulemaking incorporates Dietary Guidelines \109\ recommendations for K-
12 students and considers operational factors specific to NSLP snacks,
as suggested by public comments. Specifically, this final rule
considers that NSLP snacks operates alongside the school lunch and
breakfast programs, which have weekly juice limits. Additionally,
similar to CACFP requirements, this final rule includes a whole grain-
rich requirement for NSLP snacks, while permitting enriched grains,
provided that the whole grain-rich threshold is met. The intent of the
CACFP whole grain-rich requirement is to ensure that participants
receive at least one serving of whole grain-rich grains per day, across
all eating occasions. When considering grain offerings at school lunch
and breakfast, USDA expects that on most school days, K-12 children
receiving school meals and NSLP snacks would meet or exceed one whole
grain-rich grain per day. Consistent with statutory intent, the weekly
whole grain-rich requirement finalized in this rule improves the
nutritional quality of NSLP snacks and will result in snacks that are
nutritionally comparable to those offered in the CACFP. It also
responds to public comments that raised concerns with the operational
feasibility of implementing a per day whole grain-rich requirement in
NSLP snacks.
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\108\ U.S. Department of Agriculture, Child and Adult Care Food
Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free
Kids Act of 2010, April 25, 2016. Available at: https://www.federalregister.gov/documents/2016/04/25/2016-09412/child-and-adult-care-food-program-meal-pattern-revisions-related-to-the-healthy-hunger-free-kids-act.
\109\ ``Although 100% fruit juice without added sugars can be
part of a healthy dietary pattern, it is lower in dietary fiber than
whole fruit. Dietary fiber is a dietary component of public health
concern. With the recognition that fruit should mostly be consumed
in whole forms, the amount of fruit juice in the USDA Food Patterns
ranges from 4 fluid ounces at the lower calorie levels and no more
than 10 fluid ounces at the highest calorie levels.'' See page 87:
U.S. Department of Agriculture and U.S. Department of Health and
Human Services. 2020-2025 Dietary Guidelines for Americans. 9th
Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
The changes for NSLP snacks served to K-12 children are reflected
in the NSLP snacks meal pattern chart for K-12 children (ages 6 through
18) now included at 7 CFR 210.10(o)(2) of this final rule. Unlike the
NSLP and SBP, which include three separate age/grade groups (K-5, 6-8,
and 9-12), schools offering NSLP snacks to K-12 children will follow a
single NSLP snacks meal pattern for all children ages 6 through 18.
Schools are encouraged to serve larger portions to older children to
meet their increased nutritional needs.
USDA appreciates public input regarding the serving sizes for
fruits and vegetables in afterschool snacks. This final rule does not
change the serving sizes for fruits and vegetables in the snack meal
patterns. In CACFP snacks, for children ages 6 and older, the serving
size for fruits and vegetables served as part of a snack will continue
to be \3/4\ cup. In NSLP snacks, for children in grades K-12, the
serving size for fruits and vegetables served as part of a snack will
also continue to be \3/4\ cup. Schools are not required to serve fruits
or vegetables as part of a reimbursable snack; these components are
just two of five options available to schools. Schools offering NSLP
snacks may choose to serve any combination of at least two of the five
components (milk, meats/meat alternates, vegetables, fruits, and/or
grains).
In response to requests for clarification about the changes in this
final rule, the following chart summarizes the prior regulatory
requirements for NSLP snacks served to K-12 children compared to the
requirements implemented by this final rule:
[[Page 32010]]
[GRAPHIC] [TIFF OMITTED] TR25AP24.083
There are a few differences to point out for NSLP snacks served to
preschoolers: \111\
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\110\ While existing CACFP regulations include total sugars
limits for breakfast cereals and yogurt, in this final rule, USDA
has opted to delay implementation of these limits for NSLP snacks to
SY 2025-2026, when USDA will implement the added sugars limit for
NSLP, SBP, CACFP, and NSLP snacks.
\111\ Consistent with existing policy guidance, schools may
choose to follow the K-5 NSLP snack meal pattern when preschoolers
and K-5 students are co-mingled at meal service. See Flexibility for
Co-Mingled Preschool Meals: Questions and Answers, June 30, 2017.
Available at: https://www.fns.usda.gov/cn/flexibility-co-mingled-preschool-meals-questions-and-answers.
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Milk fat requirements and flavoring limitations: milk must
be unflavored whole milk for children age one and must be unflavored
low-fat or unflavored fat-free milk for children ages two through five.
Juice limitations: full-strength juice may only be offered
to meet the vegetable or fruit requirement at one preschool meal or
snack per day. For example, a school serves breakfast, lunch, and NSLP
snack to preschoolers using the preschool meal patterns for all meals
and snacks. If the school opts to serve juice to preschoolers at
breakfast, juice may not be served to the preschoolers during the lunch
or NSLP snack service on the same day.
Whole grain-rich requirement: at least one serving of
grains per day must be whole grain-rich. For example, a school serves a
whole grain-rich item to preschoolers at lunch and chooses to serve a
grain at NSLP snack. In this example, the grain served for NSLP snack
would not be required to be whole grain-rich. However, schools that
provide NSLP snacks to preschoolers may choose to serve additional
whole grain-rich items, beyond the one serving per day requirement.
Accordingly, this final rule amends 7 CFR 210.2 to revise the
definition of Child for consistency with statute. This final rule also
amends 7 CFR 210.10(o) to align NSLP snacks meal pattern requirements
for K-12 children with CACFP snack requirements, consistent with the
intent of the statute. The updates to NSLP snack meal pattern
requirements must be implemented by July 1, 2025.
[[Page 32011]]
Section 10: Substituting Vegetables for Fruits at Breakfast
Current Requirement
Current regulations at 7 CFR 220.8(c) and (c)(2)(ii) allow schools
to substitute vegetables for fruits at breakfast, provided that the
first two cups per week are from specific vegetable subgroups: dark
green, red/orange, beans and peas (legumes), or ``other'' vegetable
subgroups.\112\ However, in recent years, through Federal
appropriations, Congress has provided schools the option to substitute
any vegetable--including starchy vegetables--for fruits at breakfast,
with no vegetable subgroup requirements. This Congressional flexibility
has been offered on a temporary basis and has left schools without
long-term certainty regarding menu planning options. For example, in
calendar year 2019, schools were initially granted the flexibility to
offer any vegetables in place of fruit at breakfast from February 15
through September 30. This flexibility was extended by Congress through
a subsequent appropriations bill but was not granted permanently.\113\
Most recently, Congress provided schools the same flexibility in SY
2022-2023 and SY 2023-2024, allowing any vegetable to credit in place
of fruits in weekly breakfast menus.\114\
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\112\ See: ``Vegetables'' page 31. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: https://www.dietaryguidelines.gov/.
\113\ See: U.S. Department of Agriculture, School Breakfast
Program: Substitution of Vegetables for Fruit, March 18, 2019.
Available at: https://www.fns.usda.gov/sbp/substitution-vegetables-fruit See also: U.S. Department of Agriculture, School Breakfast
Program: Continuation of the Substitution of Vegetables for Fruit
Flexibility, January 22, 2020. Available at: https://www.fns.usda.gov/sbp/school-breakfast-program-continuation-substitution-vegetables-fruit-flexibility.
\114\ See: U.S. Department of Agriculture, Consolidated
Appropriations Act, 2023: Effect on Child Nutrition Programs, March
3, 2023. Available at: https://www.fns.usda.gov/cn/consolidated-appropriations-act-2023-effect-programs.
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Proposed Rule
In the proposed rule, USDA acknowledged that it is confusing for
State agencies and schools to have a requirement in regulation that is
changed periodically through Federal appropriations. To permanently
address this issue, USDA sought to establish a durable standard that
continues to encourage vegetable variety at breakfast. USDA proposed to
continue to allow schools to substitute vegetables for fruits at
breakfast but to change the vegetable variety requirement. Under the
proposal, schools choosing to offer vegetables in place of fruits at
breakfast one day per school week would have the option to offer any
vegetables, including a starchy vegetable. Schools that choose to
substitute vegetables for fruits at breakfast on two or more days per
school week would be required to offer at least two different vegetable
subgroups during that weekly menu cycle. In other words, the
requirement to offer a second, different vegetable subgroup would only
apply in cases where schools choose to substitute vegetables for fruits
at breakfast more than one day per school week.
In the proposed rule, USDA proposed to change the name of the
``legumes (beans and peas)'' vegetable subgroup to ``beans, peas, and
lentils'' for consistency with the Dietary Guidelines. As discussed in
Section 20: Miscellaneous Changes of this final rule, USDA is
finalizing this proposed terminology change. Therefore, in the final
rule portion of this section, USDA will refer to the ``beans, peas, and
lentils'' vegetable subgroup.
Public Comments
USDA received hundreds of comments on the proposal to change the
vegetable variety requirement when substituting vegetables for fruits
at breakfast. Of these, 722 supported the proposal, including 51 unique
comments. Seventeen respondents opposed the proposal, and 89
respondents provided mixed feedback, including 58 unique comments.
Comments were submitted by State agencies, advocacy groups, industry
respondents, school districts, and dietitians.
Several respondents, including school nutrition professionals and
State agencies, supported this change, suggesting that it would allow
greater menu flexibility at breakfast compared to the current
regulatory requirement. One proponent noted that offering two different
vegetable subgroups at breakfast during a weekly menu cycle is
achievable and provided examples of how the proposal could be
implemented during a school week. A couple of school nutrition
professional organizations stated that this change would simplify
regulations for menu planners and eliminate confusion. A State agency
agreed and mentioned that this change would help school nutrition staff
better understand when more than one vegetable subgroup is required at
breakfast. An advocacy group supported the proposal and emphasized the
importance of maintaining variety in vegetable subgroups offered at
breakfast, particularly the inclusion of non-starchy vegetables. A
professional organization supported the proposal, arguing that
requiring a variety of vegetable subgroups at breakfast will prevent
schools from offering the same vegetable every day. An advocacy group
supported the proposal, describing it as a ``durable standard that
encourages vegetable variety.''
Some respondents opposed the proposal, asserting that it would
allow too much flexibility compared to the current regulatory
requirement. One advocacy group did not agree with the proposal,
suggesting it would allow schools to serve vegetables from a single
subgroup up to four days per school week. For example, this respondent
shared that if a school chose to substitute vegetables for fruits every
day, the ``school could offer an omelet with spinach on Monday, but
then serve hash browns, tater tots, or home fries the other four days
of the week.'' While it is accurate that under the proposal, a school
substituting vegetables for fruits at breakfast more than once per
school week would only need to offer two vegetable subgroups, schools
would still be required to meet the dietary specifications for
calories, saturated fat, and sodium at breakfast.
Conversely, other respondents felt that the proposal was too
restrictive and argued that schools should be able to offer any
vegetable in place of fruit at breakfast, without any vegetable
subgroup requirements. Some respondents suggested that fruits would
continue to be a popular offering at breakfast, and when opting to
substitute vegetables, schools should have maximum flexibility in
planning their menus. One school nutrition professional organization
asserted that having to monitor vegetable subgroups adds complexity to
the program. This respondent maintained that when offering vegetables,
schools should have the option to offer any vegetable without meeting a
variety requirement. Other food service directors agreed, suggesting
that USDA allow any vegetable to substitute for fruit at breakfast. A
dietitian cautioned that requiring schools to offer a variety of
vegetable subgroups throughout the week ``may disincentivize schools
from the offering of vegetables at breakfast.'' One industry respondent
expressed that all vegetables should be permitted to substitute for
fruits at breakfast without limitations or restrictions, further
stating that this flexibility would ``address the issue long-term,
prevent confusion, and increase overall vegetable intake within the
program.'' An individual stated that continuing to require vegetable
variety would result in schools offering vegetables that children do
not like at breakfast, increasing plate waste.
[[Page 32012]]
However, this respondent also maintained that the most popular
vegetables at breakfast are potatoes and sweet potatoes, which USDA
notes are from two different subgroups: starchy and red/orange.
Therefore, a school that chooses to substitute vegetables for fruits
could meet the proposed variety requirement for the school week by
offering these two popular vegetable options.
Other respondents recommended alternative approaches or requested
clarification. For example, a professional organization supported the
proposal to require a variety of vegetables at breakfast, when schools
choose to substitute vegetables for fruits, but suggested that USDA
limit starchy vegetables to avoid increasing sodium. A few advocacy
groups recommended that, in addition to the proposed variety
requirement, USDA should also require that a single vegetable subgroup
cannot make up more than half of the vegetable offerings at breakfast
per week. These respondents asserted that this alternative standard
would be less restrictive than the current regulatory standard,
continue to encourage a variety of vegetable subgroups, and ensure that
no single vegetable dominates SBP menus. An industry respondent opposed
allowing any vegetables to substitute for fruits at breakfast, arguing
that ``fruits contribute different nutrients than vegetables.'' Another
respondent requested clarification about the requirements for vegetable
offerings after a school meets the variety requirement. This respondent
shared that their school usually offers vegetables as an ``extra item''
at breakfast and requested that this continue to be an option.
A few respondents provided other comments on the potential impact
of the proposal. For example, an advocacy group suggested that
substituting vegetables for fruits could help to reduce the overall
sugar content of school breakfasts. A State agency noted that school
menu planners and State agency staff would need guidance, training, and
monitoring resources if this proposal is finalized. Similarly, an
individual suggested that USDA provide sample menus with ideas to
incorporate a variety of vegetables into the breakfast program. One
respondent raised concerns that the proposed change would add paperwork
for school nutrition staff. Conversely, one State agency maintained
that they do not expect the change to be administratively burdensome.
Final Rule
This final rule continues to allow schools to substitute vegetables
for fruits in the SBP and codifies the proposal to simplify the
vegetable variety requirement. Under this final rule, schools choosing
to offer vegetables at breakfast one day per school week have the
option to offer any vegetable, including a starchy vegetable. Schools
that choose to substitute vegetables for fruits at breakfast on two or
more days per school week are required to offer vegetables from at
least two different subgroups. The vegetable subgroups that schools may
choose from include the following, a defined at 7 CFR
210.10(c)(2)(iii):
Dark green
Red/orange
Beans, peas, and lentils
Starchy
``Other'' vegetables
USDA acknowledges that some stakeholders preferred a different
approach. A few respondents requested that USDA limit how often any one
vegetable subgroup could be offered at breakfast, with some advocating
for a specific limit on starchy vegetables. Other respondents
encouraged USDA to remove the vegetable variety requirement altogether.
However, USDA has determined that it is important to continue to
encourage vegetable variety when schools choose to offer vegetables at
breakfast. As noted in the proposed rule, while the Dietary Guidelines
recommend increasing consumption of vegetables in general, they note
that starchy vegetables are more frequently consumed by children and
adolescents than the red/orange, dark green, or beans, peas, and
lentils vegetable subgroups, underscoring the need for variety. The
proposed requirement, finalized in this rulemaking, provides a
straightforward and durable approach to support children consuming a
variety of vegetables.
USDA appreciates respondent requests for clarification about
implementation of this provision, such as one respondent who requested
that USDA explain what vegetable subgroup requirements would apply
after a school offers two different subgroups at breakfast. Under this
final rule, after a school offers vegetables from two different
subgroups, the school can choose to offer any vegetables at breakfast--
including vegetables from a subgroup the school has already offered
that school week. For example, a school can substitute a starchy
vegetable for fruit at breakfast on Monday, then substitute a dark
green vegetable for fruit at breakfast on Tuesday. The rest of the week
the school may choose to substitute any vegetables, including a dark
green or a starchy vegetable, for fruit at breakfast, since it would
have met the variety requirement by Tuesday. As requested by comments,
USDA will provide guidance and resources to support successful
implementation of this provision and to assist schools in their efforts
to offer a variety of vegetables as part of nutritious school
breakfasts.
This final rule continues to require schools opting to serve
vegetables at breakfast to offer a variety of subgroups, and in a way
that is less restrictive compared to the previous regulatory standard.
Consistent with current regulations, schools are not required to offer
vegetables at breakfast and may choose to offer only fruits at
breakfast to meet this component requirement. Schools may also continue
to offer vegetables at breakfast as an extra item, subject to the
weekly dietary specifications for calories, saturated fat, sodium, and
upon implementation, added sugars. As suggested by comments, USDA
expects that fruit will continue to be a popular offering in
reimbursable school breakfasts. While USDA acknowledges feedback
received about potential administrative burden, this final requirement
does not add any additional administrative requirements beyond menu
documentation and production records required for Administrative
Reviews, for schools that choose to substitute vegetables for fruits at
breakfast.
Accordingly, this final rule amends 7 CFR 220.8(c)(2)(i) and (ii)
to change the vegetable variety requirement for substituting vegetables
for fruits at breakfast. This change provides schools with more menu
planning flexibility at breakfast when compared to the current
regulation. Schools that are following the current regulatory
requirement are not required to change menus or operations as a result
of this provision. Schools that are using the Congressional flexibility
\115\ will need to offer at least two vegetable subgroups at breakfast,
if offering vegetables in place of fruit at breakfast more than once
per week.
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\115\ See: U.S. Department of Agriculture, Consolidated
Appropriations Act, 2023: Effect on Child Nutrition Programs, March
3, 2023. Available at: https://www.fns.usda.gov/cn/consolidated-appropriations-act-2023-effect-programs.
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Section 11: Nuts and Seeds
Current Requirement
Current regulations allow nuts and seeds, and nut and seed butters,
as a meat alternate in the child nutrition programs. In all child
nutrition
[[Page 32013]]
programs, nut and seed butters may credit for the full meats/meat
alternates component. However, current regulations limit the crediting
of whole nuts and seeds (or nut and seed pieces) in some child
nutrition programs. Current lunch and supper regulations limit nut and
seed crediting to 50 percent of the meats/meat alternates component (7
CFR 210.10(c)(2)(i)(B), 225.16(d)(2) and (e)(5), 226.20(a)(5)(ii) and
(c)(2)). SBP regulations include the same limit (7 CFR
220.8(c)(2)(i)(B)). CACFP regulations for breakfast do not explicitly
include the 50 percent limit for nuts and seeds, but refer to USDA
guidance, which includes the 50 percent limit (7 CFR 226.20(a)(5)(ii)).
Snack regulations and USDA guidance on snacks do not include the 50
percent limit; nuts and seeds may credit for the full meats/meat
alternates component when offered as part of a snack (7 CFR
210.10(o)(2)(ii), 225.16(e)(5), and 226.20(c)(3). For programs where
nut and seed crediting is limited to 50 percent of the meats/meat
alternates component, program operators choosing to serve nuts and
seeds must serve them alongside another meat/meat alternate to fully
meet the component requirement.
Proposed Rule
USDA proposed to allow nuts and seeds to credit for the full meat/
meat alternate component in all child nutrition programs and meals.
This proposal would remove the 50 percent crediting limit for nuts and
seeds at breakfast, lunch, and supper.
Public Comments
USDA received 389 comments on the proposed change to allow nuts and
seeds to credit for the full meats/meat alternates component, including
217 unique comments. Of these, 310 supported the proposal, including
158 unique comments, 10 were opposed, and 69 were mixed, including 49
unique comments. State agencies, advocacy groups, industry respondents,
school districts, dietitians, and individuals provided input on this
proposal.
Several respondents supported the proposal, including a national
organization representing tens of thousands of school nutrition
professionals. One proponent applauded the proposal, noting that nuts
and seeds are good sources of protein, vitamin E, fiber, and many
minerals. A dietitian agreed, maintaining that nuts and seeds are
healthy proteins that would provide variety throughout the week. An
advocacy group added that nuts and seeds provide healthy fats. Another
advocacy group representing the CACFP community indicated that 85
percent of its members supported the proposal. Several respondents,
including dietitians, school districts, and a State agency, suggested
that this change would allow more vegan and vegetarian options in child
nutrition program meals. An advocacy group described plant-based
entr[eacute]es that operators could serve under this change, such as
walnut and mushroom-based ``taco meat,'' rice pilaf with pistachios,
and salad with sunflower seeds. In addition to plant-based options, an
advocacy organization and a State agency noted that this proposal would
allow more shelf-stable foods to be served in afterschool and summer
meals. Another State agency suggested that this proposed change would
allow program operators to offer healthier versions of popular bistro
or snack boxes. An individual stated that the proposal would allow
operators greater latitude to develop menus that reflect participant
preferences; other respondents agreed, citing increased demand for
vegetarian meals.
One opponent argued that nuts and seeds are not adequate to meet
the full meats/meat alternates component requirement. A few industry
respondents also opposed the proposal, arguing that in their view,
animal products are more nutritious than vegetarian foods. However,
this respondent also supported greater menu planning flexibility and
opposed ``mandatory federal limits'' in the meal patterns. Another
respondent raised concern about oils in nuts and seeds and the
potential for nuts and seeds to cause ``digestive distress'' among some
participants. One respondent suggested students at their school would
not be interested in meals that include nuts and seeds as the full
meats/meat alternates component.
Other respondents requested clarification or offered alternatives
to the proposal. One respondent asked if nuts would be mandatory,
citing food allergy concerns. Another respondent supported the change,
but recommended capping the number of times per week operators could
offer nuts and seeds to promote variety. One advocacy group suggested
that USDA update its crediting guidance for nuts and seeds and nut and
seed butters, asserting that the current requirements are too high. For
example, this respondent argued that the current requirements result in
sandwiches filled with an inedible amount of nut butter, making them
difficult to chew and swallow. A State agency recommended targeting
this provision to older children, citing concerns about choking hazards
for young children. Similarly, an advocacy group raised concerns about
the safety and appropriateness of offering nuts and seeds to very young
children. This respondent also noted that nut and seed products may be
glazed or sugar coated. An industry respondent noted that offering nuts
may create menu planning complications due to the sodium content of
some nuts. However, this respondent still supported the proposal.
Another respondent requested sample menus and recipe ideas to support
implementation of this change.
Final Rule
This final rule codifies the proposal to allow nuts and seeds to
credit for the full meats/meat alternates component in all child
nutrition programs and meals, removing the 50 percent crediting limit
for nuts and seeds at breakfast, lunch, and supper. USDA expects this
change to reduce complexity by making the requirements consistent
across programs and to provide more menu planning options for program
operators.
Child nutrition operators are not required to make any changes to
their menus to comply with this standard. Nuts and seeds are not
required in child nutrition program meals, but rather, continue to be
an option for operators. When offering nuts and seeds, child nutrition
operators may offer them to meet the full meats/meat alternates
component but are not required to; operators may choose to offer nuts
and seeds toward only a portion of the component, alongside another
meat/meat alternate. Although USDA recognizes that many child nutrition
program operators will continue to offer nuts and seeds in snacks, or
in small amounts in meals alongside other meats/meat alternates, this
final rule gives operators increased flexibility to offer nuts and
seeds for the full meats/meat alternates component in all meals and
snacks.
USDA appreciates comments regarding the importance of variety in
meals and snacks and expects that operators will continue to offer a
variety of foods toward the meats/meat alternates meal component.
Additionally, according to the Dietary Guidelines, more than half of
Americans do not meet the recommendations for the nuts, seeds, and soy
products subgroup.\116\ Therefore, USDA has
[[Page 32014]]
determined that it is not necessary to limit the number of times nuts
and seeds may be served per week in order to promote variety within the
meats/meat alternates meal component. As suggested in public comments,
USDA expects that this change will expand options for vegetarian and
vegan meals that include nuts, seeds, and nut and seed butters. As
noted in the Dietary Guidelines, a healthy vegetarian dietary pattern
can be achieved by incorporating protein foods from plants, including
nuts and seeds; beans, peas, and lentils; tofu and other soy products;
and whole grains.\117\
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\116\ See ``Protein Foods,'' page 34. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at https://www.dietaryguidelines.gov/.
\117\ See ``Protein Foods,'' page 33. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
USDA appreciates input regarding the serving sizes for nuts, seeds,
and their butters. Many factors are considered when determining
crediting amounts for foods in the child nutrition programs, including
the FDA Standards of Identity, Dietary Guidelines, and the USDA Food
Safety and Inspection Service Food Standards and Labeling Policy.
USDA's Food Buying Guide for Child Nutrition Programs also assists in
determining the contribution that each food makes toward meal pattern
requirements. In this final rule and corresponding guidance, USDA will
maintain current crediting amounts for nuts and seeds and their
butters. In cases where an operator determines a portion is too large
for a child or adult participant, it is recommended that nuts and seeds
and their butters be served in combination with another meat/meat
alternate to meet the full component requirement.
USDA is mindful of respondent concerns about choking hazards and
has provided guidance on reducing the risk of choking in young
children.\118\ As noted in the proposed rule, nuts and seeds are
generally not recommended to be served to children ages 1 to 3 because
they present a choking hazard. If served to very young children, nuts
and seeds should be finely minced. Program operators should also be
aware of food allergies among participants and take the necessary steps
to prevent exposure. Section 14: Meal Modifications provides more
information about requirements to provide meal modifications for
participants with disabilities, which may include food allergies.
Finally, as noted in the proposed rule, USDA encourages program
operators to offer nuts, seeds, and their butters in their most
nutrient-dense form, without added sugars and salt, and schools must
consider the contribution of these foods to the weekly limits for
calories, saturated fat, and sodium.
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\118\ U.S. Department of Agriculture, Reducing the Risk of
Choking in Young Children at Mealtimes. September 2020. Available
at: https://www.fns.usda.gov/tn/reducing-risk-choking-young-children-mealtimes.
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Accordingly, this final rule amends 7 CFR 210.10(c)(2)(iv)(B),
220.8(c)(2)(iv)(B), 225.16(d)(2) and (e)(5), 226.20(a)(5)(ii) and
(c)(2) to allow nuts and seeds to credit for the full meats/meat
alternates component in all child nutrition program meals, removing the
50 percent crediting limit for nuts and seeds at breakfast, lunch, and
supper. This change provides child nutrition program operators more
menu planning flexibility. Program operators are not required to change
menus or operations as a result of this provision.
Section 12: Beans, Peas, and Lentils at Lunch
Current Requirement
Consistent with the Dietary Guidelines, the school lunch meal
pattern includes five vegetable subgroups: dark green, red/orange,
beans and peas (legumes), starchy, and ``other'' vegetables. Current
NSLP regulations at 7 CFR 210.10(c)(2)(iii) require school food
authorities to offer vegetables from all five subgroups each school
week. Specifically for the beans and peas (legumes) vegetable subgroup,
schools must offer \1/2\ cup over the course of the week at lunch to
meet the vegetable subgroup requirement.
In addition to crediting toward the vegetable meal component,
legumes may also credit toward the meats/meat alternates meal component
(7 CFR 210.10(c)(2)(i)(E)). Legumes may count toward either the
vegetable meal component or meats/meat alternates meal component, but
not both components in the same meal (7 CFR 210.10(c)(2)(iii)). This
limit applies when legumes are offered in a single dish. When a school
offers legumes in two separate dishes as part of the same meal, one
serving may count toward the vegetable meal component and one serving
may count toward the meats/meat alternates meal component, at menu
planners' discretion.\119\
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\119\ See Question 35. U.S. Department of Agriculture. Meal
Requirements Under the National School Lunch Program and School
Breakfast Program: Questions and Answers for Program Operators
Updated to Support the Transitional Standards for Milk, Whole
Grains, and Sodium Effective July 1, 2022, March 2, 2022. Available
at: https://www.fns.usda.gov/cn/sp052022-questions-answers-program-operators.
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Proposed Rule
In the 2020 proposed rule, USDA proposed to allow legumes offered
toward the meats/meat alternates meal component to also count toward
the weekly requirement to offer \1/2\ cup of the legumes vegetable
subgroup per week at lunch, while maintaining the total vegetables
requirement. As with the current requirement, under the proposal,
legumes would not count toward two meal components (vegetable component
and meats/meat alternates component) at the same time. If a school opts
to count legumes toward the meats/meat alternates meal component, the
school would need to serve another vegetable to count toward the daily
and weekly vegetable meal component requirements. However, under the
proposal, legumes could count toward the legumes vegetable subgroup
requirement when offered toward the meats/meat alternates meal
component.
Later, in the 2023 proposed rule, USDA proposed to change the name
of the beans and peas (legumes) vegetable subgroup in school meal and
CACFP regulations to align with the Dietary Guidelines, 2020-2025,
which changed the terminology for the vegetable subgroup to ``beans,
peas, and lentils.'' \120\ As discussed in Section 20: Miscellaneous
Changes, USDA is finalizing this proposed terminology change.
Therefore, when discussing the final standard in this section, USDA
will use the term ``beans, peas, and lentils'' in place of ``beans and
peas (legumes).''
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\120\ The Dietary Guidelines, 2020-2025, changed the terminology
for the ``legumes (beans and peas)'' vegetable subgroup to ``beans,
peas, and lentils.'' The foods within this vegetable subgroup did
not change. See ``About Beans, Peas, and Lentils,'' page 31. U.S.
Department of Agriculture and U.S. Department of Health and Human
Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://www.dietaryguidelines.gov/.
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Public Comments on 2020 Proposed Rule
USDA received 103 comments on the 2020 proposed rule about the
proposal to allow beans and peas (legumes) offered toward the meats/
meat alternates meal component to count toward the weekly legumes
subgroup requirement, all of which were unique comments. Of these, 61
supported the proposal, 28 were opposed, and 14 were mixed.
One proponent emphasized that the proposal would not reduce the
total amount of vegetables at lunch, but would instead help schools
offer legumes. A school district suggested that this change would allow
more
[[Page 32015]]
menu planning flexibility. Other proponents agreed, saying this
proposal would help schools offer legumes as part of an entr[eacute]e,
as opposed to a side dish. Some proponents, including an advocacy
group, maintained that legumes offered as entr[eacute]es are more
appealing to children and help reduce food waste. For example, one
dietitian advised that children may be more likely to consume a bean
and cheese burrito, and less likely to consume a scoop of beans from a
salad bar. Similarly, a school district noted that students at their
school prefer bean dishes such as pupusas, tacos, and chilis (which
they offer as meats/meat alternates) compared to side dishes like baked
beans and bean salads.
Some opponents seemed to misunderstand the proposal, assuming that
it would lessen the overall amount of vegetables offered in school
lunch. To be clear, schools would be required to offer a separate
vegetable to count toward the daily and weekly vegetable component
requirements when offering legumes as a meat/meat alternate. One State
agency opposed the proposal, arguing that it could decrease the total
amount of legumes offered in cases where schools are currently offering
legumes as a meat/meat alternate in an entr[eacute]e, along with
offering legumes in a side dish as a vegetable. A few State agencies
expressed concern that this proposal could lead to confusion among
schools, resulting in meal pattern errors. Several respondents,
including State agencies and an advocacy group, emphasized that
training and technical assistance would be critical to ensure this
provision is implemented correctly.
One proponent emphasized the benefits of legumes, which they
described as versatile, inexpensive, sustainable, and nutritious. Other
respondents, including industry respondents, agreed, suggesting legumes
are a good source of several important nutrients, including dietary
fiber and potassium. In general, many respondents expressed support for
increasing consumption of legumes, which are currently underconsumed by
children and adolescents (and all other age groups).\121\
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\121\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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Final Rule
This final rule codifies the option for schools to count beans,
peas, and lentils offered as a meat alternate at lunch toward the
weekly beans, peas, and lentils vegetable subgroup requirement. Under
this option, as with the current requirement, schools would determine
which overall meal component the beans, peas, and lentils would count
toward: the vegetable meal component, or the meats/meat alternates meal
component. This new option will permit beans, peas, and lentils offered
as a meat alternate to count toward the weekly beans, peas, and lentils
vegetable subgroup requirement. However, beans, peas, and lentils
offered as a meat alternate would not also count toward the daily or
weekly overall vegetable meal component requirements; schools using
this option would be required to offer additional vegetables to meet
the daily and weekly vegetable meal component requirements.
For example, a school offers a wrap with chickpeas, fresh tomatoes,
and lettuce. In this example, the menu planner opts to count the
chickpeas toward the meats/meat alternates meal component. In addition
to counting toward the daily and weekly meats/meat alternates meal
component requirements, the menu planner could also count the chickpeas
toward meeting the weekly vegetable subgroup requirement to offer at
least \1/2\ cup of beans, peas, and lentils; the school would not need
to offer another vegetable from this subgroup during that week.
However, during this meal, because the chickpeas are already counting
toward the meats/meat alternates meal component, they cannot also count
toward the vegetable meal component. The menu planner would instead
count the other vegetables offered in the wrap (tomatoes and lettuce)
toward the daily and weekly total vegetable meal component requirements
and their respective vegetable subgroups.
In a different example, a school offers a black bean and cheese
quesadilla. In this example, the menu planner opts to count the cheese
toward the meats/meat alternates meal component, and to count the black
beans toward the vegetable meal component. In this case, the black
beans could count toward the weekly requirement to offer \1/2\ cup of
beans, peas, and lentils (vegetable subgroup requirement), as well as
the daily and weekly total vegetable meal component requirements, since
the school is offering the beans as a vegetable and not as a meat
alternate.
USDA is mindful of concerns, particularly from State agencies, that
this provision could be implemented incorrectly. Public comments from
State agencies expressed concern that when implementing this provision,
schools may incorrectly double-count beans, peas, and lentils toward
both the meats/meat alternates component and vegetable component in the
same meal, resulting in a missing meal component at lunch. USDA
recognizes the importance of providing thorough training and technical
assistance to support implementation of this provision. Additionally,
schools are not required to use this option and may instead continue
with their current menu planning approach for beans, peas, and lentils.
This new option is intended to support schools that wish to offer more
plant-based and vegetarian options toward the meats/meat alternates
meal component.
Accordingly, this final rule amends 7 CFR 210.10(c)(2)(ii)(C) and
(c)(2)(iv)(E) to allow beans, peas, and lentils offered toward the
meats/meat alternates meal component to also count toward the
requirement to offer \1/2\ cup of the beans, peas, and lentils
vegetable subgroup each week. Beans, peas, and lentils offered toward
the meats/meat alternates meal component would not count toward the
daily or weekly overall vegetable meal component requirements. This
change provides schools with more menu planning flexibility at lunch.
Schools are not required to change menus or operations as a result of
this provision.
Section 13: Competitive Foods: Bean Dip Exemption
Current Requirement
Current regulations at 7 CFR 210.11 establish requirements for all
foods sold in schools outside of the school meal programs. These
requirements, known as competitive food standards, or ``Smart Snacks in
School'' standards, help to promote healthy food choices throughout the
school day. To comply with these standards, hereafter referred to as
the Smart Snacks standards, foods must meet nutrition standards,
including the standards for total fat established at 7 CFR 210.11(f).
Proposed Rule
USDA proposed to add hummus to the list of foods exempt from the
total fat standard in the Smart Snacks regulations. Hummus would
continue to be subject to all other Smart Snacks standards, including
limits for saturated fat, total sugars (by weight of product),
calories, and sodium. This change would allow hummus, which is already
permitted as a contributing (creditable) part of a reimbursable school
meal, to be sold as a Smart Snack to students on campus throughout the
school day, provided all other Smart Snacks nutrition standards are
met.
[[Page 32016]]
Because there is currently no FDA standard of identity for hummus,
USDA proposed to add the following definition of ``hummus'' to the
Smart Snacks regulations: Hummus means, for the purpose of competitive
food standards implementation, a spread made from ground pulses (beans,
peas, and lentils), and ground nut/seed butter (such as tahini [ground
sesame], peanut butter, etc.) mixed with a vegetable oil (such as olive
oil, canola oil, soybean oil, etc.), seasoning (such as salt, citric
acid, etc.), vegetables and juice for flavor (such as olives, roasted
pepper, garlic, lemon juice, etc.). Manufactured hummus may also
contain certain ingredients necessary as preservatives and/or to
maintain freshness.
Public Comments
USDA received 200 comments on the proposal to exempt hummus from
the Smart Snacks total fat standard, including 174 unique comments. Of
these, 145 supported the proposal, including 119 unique comments, 1 was
opposed, and 54 were mixed. Comments were submitted by State agencies,
advocacy groups, industry respondents, school districts, and
individuals.
Respondents, including a national organization representing tens of
thousands of school nutrition professionals, overwhelmingly supported
the proposal. One proponent noted that hummus provides many nutrients,
including fiber, protein, iron, and magnesium. Another proponent
described hummus as a nutritious snack option and maintained that
hummus is filling and high in protein. An advocacy group noted that
hummus provides healthy fats and is often served alongside other
nutrient-dense foods, such as vegetables or whole grains, while other
respondents, including a State agency, maintained this proposal would
help children incorporate more legumes into their diets. Another State
agency asserted that this proposal would allow schools to add a healthy
[agrave] la carte option to their cafeterias. An advocacy group
suggested this proposal would expand [agrave] la carte options for
vegans and vegetarians.
A few proponents sought confirmation that the proposed exemption
was limited to the total fat standard and that other Smart Snacks
standards would continue to apply to hummus. For example, an advocacy
group supported the proposal, provided that hummus would continue to be
subject to the saturated fat standard for Smart Snacks. A State agency
requested clarification that the Smart Snacks sodium limits would
continue to apply to hummus. To clarify, under the proposed rule,
hummus would continue to be subject to all other Smart Snacks
standards, including limits for saturated fat, total sugars (by weight
of product), calories, and sodium.
A few respondents opposed the proposal or provided other comments.
One opponent cited concerns about processed foods, especially those
containing soybean or canola oil. An advocacy group did not oppose the
change, but suggested children would not eat hummus. One respondent
wondered if schools could serve carrots with hummus as a Smart Snacks
compliant combination food.
Although not directly related to the hummus proposal, other
respondents recommended that USDA exempt other foods from the Smart
Snacks total fat standard. For example, a few respondents encouraged
USDA to provide an exception for avocados or guacamole. Another
encouraged an exemption for salads with dressings, arguing that salad
dressing has a high percentage of calories from fat, even if the
overall calories in the salad are low. An industry respondent
recommended that USDA exempt other condiments from Smart Snacks
standards, suggesting that condiments promote the consumption of
nutrient-dense foods. One school district suggested that USDA exempt
nut butters from the total fat standard; to clarify, nuts and seeds and
nut/seed butters are already exempt from the total fat and saturated
fat Smart Snacks standards (7 CFR 210.11(f)(3)(ii)). This exemption
does not apply to combination foods that contain nuts and seeds or nut/
seed butters with other ingredients, such as peanut butter and
crackers, trail mix, or chocolate covered peanuts.
A few respondents provided feedback on the proposed definition of
hummus. A State agency described the proposed definition as
``reasonable.'' Another respondent pointed out that the word ``hummus''
has a culturally significant meaning and suggested USDA use a different
term, such as ``ground bean-based dip.'' An advocacy group noted that
some types of hummus do not include ground nut or seed butters. This
respondent noted schools may prefer to sell hummus without nut or seed
butter as an ingredient, given the potential for nut or seed allergies.
Because of this, the advocacy group recommended making nut or seed
butter an optional ingredient in the definition of hummus. A school
district requested that USDA clarify whether the definition applies
only to hummus made from chickpeas, or alternatively, if dips that
include other types of beans would qualify for the exemption.
Final Rule
In this final rule, USDA is revising the terminology for this
provision based on public comment. Instead of referring to ``hummus''
in regulation, this final rule will refer to ``bean dip.'' This change
reflects input received through a public comment, which noted that the
word ``hummus'' already has a culturally significant meaning and is
traditionally made from chickpeas (rather than any variety of beans,
peas, or lentils). The change also addresses a school district's
question about whether this exemption is limited to hummus made with
chickpeas, or if it can include products made from other types of
beans. Based on these comments, USDA has determined a more general term
is preferred. Therefore, this final rule adds bean dip to the list of
foods exempt from the total fat standard in the Smart Snacks
regulations. This exemption applies to products marketed as hummus, as
well as bean dips made from any variety of beans, peas, or lentils.
Bean dip would continue to be subject to the saturated fat standard for
Smart Snacks, as well as all other Smart Snacks requirements.
This final rule also codifies the following definition of ``bean
dip'' in the Smart Snacks regulations. Under this definition, bean dip
can be made from chickpeas as well as other varieties of beans, peas,
and lentils: Bean dip means, for the purpose of competitive food
standards, a spread made from ground pulses (beans, peas, and/or
lentils) along with one or more of the following optional ingredients:
Ground nut/seed butter (such as tahini [ground sesame] or
peanut butter;
Vegetable oil (such as olive oil, canola oil, soybean
oil);
Seasoning (such as salt, citric acid);
Vegetables and juice for flavor (such as olives, roasted
peppers, garlic, lemon juice); and
For manufactured bean dip, ingredients necessary as
preservatives and/or to maintain freshness.
USDA appreciates input that stakeholders provided on the proposed
definition. In this final rule, USDA has adjusted the definition to
clarify that bean dip does not need to include all of the ingredients
listed in the definition to qualify for this exemption. To qualify for
the exemption, a bean dip must include ground pulses (beans, peas, and/
or lentils), but the remaining ingredients listed in the definition are
not required. The final definition clarifies that these remaining
ingredients are optional. A bean dip may include any combination of one
or more of the remaining optional
[[Page 32017]]
ingredients listed in the definition. For example, hummus made with
chickpeas, water, tahini, sunflower oil, lemon juice, and spices (such
as garlic, salt, and crushed red pepper) could be sold a la carte as a
bean dip under this final rule provided that the product as packaged
meets the Smart Snacks standards for calories, sodium, saturated fat,
and total sugars by weight.
This change applies to bean dip as a standalone product; it does
not apply to combination foods that include bean dip. For example, the
exemption does not apply to hummus packaged with pretzels, pita, or
other snack-type foods. Applying this exemption only to bean dip as a
standalone product ensures that the other foods that are offered for
sale to children at school alongside the bean dip remain subject to the
Smart Snacks total fat standard, as well as all other Smart Snacks
standards. Under this change, schools have the option to sell bean dip
as a standalone product, or along with other standalone products that
also meet the Smart Snacks standards, such as carrots or celery. As
detailed at 7 CFR 210.11(d)(2), fresh vegetables, such as carrots and
celery, with no added ingredients are exempt from Smart Snacks
standards. Schools may also sell bean dip along with whole grain-rich
pita bread, whole grain-rich crackers, or other products, provided
those products meet the Smart Snacks standards.
As a reminder, when a product that is exempt from the Smart Snacks
standards is paired with another product that is exempt, both
exemptions are maintained when the products are paired and no other
ingredients are added. For example, the celery, peanut butter, and
raisins included in ``ants on a log'' sold a la carte would maintain
their respective exemptions when paired together with no other
ingredients. Additionally, combination foods with at least \1/4\ cup of
fruit and/or vegetable (for example, \1/4\ cup of grapes with enriched
pretzels) can be sold to students on campus throughout the day,
provided the combination food, as packaged, meets all Smart Snacks
standards for calories, sodium, total fat, saturated fat, and total
sugars (by weight of product).
USDA appreciates public input on other foods and products that
stakeholders would like to exempt from the Smart Snacks total fat
standard. However, this new exemption is limited to bean dips, as
defined at 7 CFR 210.11(a)(7). As noted, certain other products already
have an exemption to the total fat standard, or the total fat and
saturated fat standards, for Smart Snacks. These exemptions remain in
place under this rule and are listed at 7 CFR 210.11(f).
Accordingly, this final rule amends 7 CFR 210.11(a)(7) to codify
the definition of ``bean dip'' and 7 CFR 210.11(f)(2)(ii) to exempt
bean dip, including hummus, from the total fat standard in the Smart
Snacks regulations. This change provides schools the option to sell
bean dip as a Smart Snack. Schools are not required to change
operations as result of this provision.
Section 14: Meal Modifications
Current Requirement
Current regulations require schools, institutions, and facilities
to make meal modifications to ensure participants with disabilities
have an equal opportunity to participate in, and benefit from, the
NSLP, SBP, and CACFP (7 CFR 210.10(m)(1), 220.8(m), and 226.20(g)(1)).
The regulations allow, but do not require, schools, institutions, and
facilities to make substitutions for ``medical or other special dietary
needs'' that are not disabilities but that prevent a participant from
consuming the regular reimbursable meal or snack. Under current NSLP
and SBP regulations, substitutions for disability reasons must be
supported by a written statement signed by a licensed physician. Under
current CACFP regulations, the written statement must be signed by a
licensed physician or licensed healthcare professional who is
authorized by State law to write medical prescriptions. Under the
current NSLP, SBP, and CACFP regulations, substitutions for ``medical
or other special dietary needs'' must be supported by a written
statement signed by a recognized medical authority (7 CFR 210.10(m)(2),
220.8(m), and 226.20(g)(2)). An exception is fluid milk substitutes for
``medical or special dietary needs'' that are not disabilities. Fluid
milk substitutes for ``medical or special dietary needs'' must be
supported by a written request; however, the written request may come
from a parent or guardian or from a medical authority (7 CFR
210.10(m)(2)(ii)(B) and 226.20(g)(3)).\122\ Fluid milk substitutes are
discussed in greater detail in Section 3B: Fluid Milk Substitutes:
Responses to Request for Input and Section 3C: Fluid Milk Substitutes:
Nutrient Requirements.
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\122\ As noted in the proposed rule, based on statutory
requirements, USDA regulations include several other requirements
for fluid milk substitutions for non-disability reasons, such as
specific nutrition standards. See page 8061: Child Nutrition
Programs: Revisions to Meal Patterns Consistent With the 2020
Dietary Guidelines for Americans (88 FR 8050, February 7, 2023).
Available at: https://www.federalregister.gov/d/2023-02102/p-208.
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Current NSLP and SBP regulations also encourage schools to consider
``ethnic, religious, or economic'' factors when planning or preparing
meals, provided the variations meet the meal pattern requirements (7
CFR 210.10(m)(3) and 220.8(m)). CACFP regulations allow institutions
and facilities--with USDA approval--to vary meal components on an
experimental or continuing basis, if the variations are nutritionally
sound and necessary to meet ``ethnic, religious, economic, or
physical'' needs (7 CFR 226.20(h)).
In September 2016, USDA updated its school meal modification policy
guidance \123\ to reflect passage of The Americans with Disabilities
Act (ADA) Amendments Act of 2008. Later, in June 2017, USDA issued
updated CACFP and SFSP meal modification policy guidance.\124\ The ADA
Amendments Act clarified the meaning and interpretation of the ADA
definition of ``disability'' to ensure that it would be broadly
construed and applied without extensive analysis. Therefore, rather
than focusing on if a child or adult participant has a disability,
USDA's updated policy guidance stated that program operators should
focus on working collaboratively with parents, guardians, participating
adults, or a person acting on behalf of an adult participant to ensure
equal opportunity to benefit from the programs. Notably, USDA's updated
policy guidance \125\ allowed a State licensed healthcare professional,
such as a nurse practitioner or physician's assistant, to submit a
medical statement on behalf of a child or adult participant with a
disability. It also clarified that program operators may accommodate
requests related to a disability that are not supported by a medical
statement if the requested modification can be accomplished within the
program meal patterns and encouraged operators to use this option when
possible. At the
[[Page 32018]]
same time, the updated policy guidance explained that program operators
may choose to obtain a written medical statement for all disability
meal modifications, even those that fall within the meal patterns. This
updated guidance addressed modifications required to accommodate
disabilities that restrict a participant's diet; it did not address
dietary preferences or other non-disability requests, which program
operators are encouraged--but not required--to meet.
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\123\ U.S. Department of Agriculture, Modifications to
Accommodate Disabilities in the School Meal Programs, September 27,
2016. Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-school-meal-programs.
\124\ U.S. Department of Agriculture, Policy Memorandum on
Modifications to Accommodate Disabilities in the Child and Adult
Care Food Program and Summer Food Service Program, June 22, 2017.
Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
\125\ See Question 16. U.S. Department of Agriculture,
Accommodating Disabilities in the School Meal Programs: Guidance and
Questions and Answers (Q&As). April 25, 2017. Available at: https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas.
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Proposed Rule
In the 2020 rule, USDA proposed a variety of regulatory changes to
reflect the updated policy guidance and to improve access to modified
meals for participants who need them. The rule proposed to codify in
regulation that State licensed healthcare professionals may write
medical statements to request modifications on behalf of participants
with disabilities in the school meal programs and CACFP. It also
proposed to define a State licensed healthcare professional as an
individual authorized to write medical prescriptions under State law.
Regarding child and adult participant food preferences, the 2020 rule
proposed to revise existing regulatory text to encourage schools,
institutions, and facilities to meet participants' cultural, ethical,
Tribal, or religious preferences when preparing meals in the school
meal programs and CACFP.\126\ The rule also proposed reorganizing the
regulatory text to distinguish between disability and non-disability
requests more clearly. The 2020 rule did not propose changes to SFSP
regulations.
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\126\ For comparison, current regulations at 7 CFR 210.10(m)(3)
state that, ``Schools should consider ethnic and religious
preferences when planning and preparing meals . . . Any variations
must be consistent with the food and nutrition requirements
specified under this section and needed to meet ethnic, religious,
or economic needs.''
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Public Comments on 2020 Proposed Rule
USDA received 120 comments on the meal modifications provision of
the 2020 proposed rule, including 83 unique comments. Of these, 69
supported the proposed changes, including 32 unique comments, 6 were
opposed, and 45 were mixed.
Many respondents supported USDA's proposal to codify the existing
policy guidance in regulation and appreciated the clarification that a
medical statement is only required for modifications that fall outside
the meal patterns. Respondents also emphasized the importance of
ensuring participants who need meal modifications can easily access
them and encouraged USDA to take steps to minimize burden for families
in the modification request process.
Respondents provided input on the requirement for program operators
to obtain a medical statement when the meal modification does not meet
the meal pattern requirements. One State agency maintained that the
meal patterns provide enough flexibility to meet a variety of needs and
preferences. In cases where a child or adult participant requires a
modification outside the scope of the meal patterns, this State agency
agreed it should be supported by formal documentation. A few other
State agencies asserted that requiring a medical statement protects
children's health and is not too burdensome. Another State agency
agreed, adding that the medical statement helps program staff ensure
that a child or adult participant's health needs are met. Similarly, an
advocacy organization noted that child nutrition professionals work
diligently to meet non-disability dietary requests and preferences, and
when making a disability-related meal modification, they benefit from a
complete written medical statement. An individual suggested that
program operators obtain a medical statement for all meal
modifications, regardless of whether they fall within or outside of the
meal patterns.
USDA requested specific input on the proposed definition of State
licensed healthcare professional, and whether additional healthcare
professionals should be permitted to submit a medical statement on
behalf of a child or adult participant with a disability. Most
respondents supported USDA's proposal to codify in regulation the
authority allowing State licensed healthcare professionals to submit a
medical statement on behalf of a participant with a disability.
However, respondents shared a variety of perspectives on whether this
authority should be expanded further. For example, one State agency did
not support expanding the scope of who can submit a medical statement
beyond State licensed healthcare professionals, noting that obtaining
the medical statement is an important step in ensuring that all
participant's needs are met with professionalism and sound medical
guidance. An advocacy group agreed, stating that they do not support
expanding the definition to include additional professionals; this
respondent maintained that ``State licensed healthcare professional''
as defined in the proposed rule is the appropriate level of authority
to ensure a child or adult participant's health.
One State agency suggested that allowing registered and licensed
dietitians to write medical statements to support meal modifications
seems very reasonable given this is their field of expertise. A second
State agency agreed, noting that dietitians may be more accessible to
families, reducing the burden of obtaining the necessary documentation
for a meal modification, while a third State agency argued that
dietitians may be better suited than the currently approved
professionals to determine whether a child or adult participant has a
disability that affects their ability to consume certain foods. Another
respondent noted that dietitians tend to be available at the district
level working directly with schoolchildren who could benefit from
disability-related meal modifications. However, several respondents
noted that dietitians are not licensed in all States.
One State agency recommended accepting medical statements from
registered dietitians, speech pathologists, licensed clinical social
workers, and psychologists. Another State agency agreed, noting that
registered dietitians and speech pathologists have extensive training
and are often consulted to develop modification requests for children
with disabilities. Others, including school districts and individuals
who work in schools, agreed, noting expanding the scope of who can
submit a medical statement would facilitate access to meal
modifications for children who need them. However, a few State agencies
expressed concern that adding additional titles would confuse non-
disability preferential requests with medically necessary requests.
Others agreed, cautioning against expanding this authority to
professionals who are not trained in science-based nutrition therapy.
One State agency noted that, within their State, at least 10 types of
professionals already meet the definition of ``State licensed
healthcare professionals.'' This State agency maintained that program
operators have not struggled to obtain the required documentation
needed to provide meal modifications for disability-related needs.
Final Rule
This final rule codifies in regulation that State licensed
healthcare professionals may write medical statements to request
modifications on behalf of child or adult participants with
disabilities in the school meal programs and CACFP. It also defines a
[[Page 32019]]
State licensed healthcare professional as an individual authorized to
write medical prescriptions under State law. Based on public input,
this final rule also permits registered dietitians to write medical
statements to request modifications on behalf of child and adult
participants with disabilities in the school meal programs and in
CACFP. The requirement to accept medical statements from registered
dietitians must be implemented by July 1, 2025, for NSLP and SBP, and
by October 1, 2025, for CACFP. Schools, institutions, and facilities
have the option, but are not required, to implement this change prior
to the implementation date. This final rule also encourages schools,
institutions, and facilities to meet participants' non-disability
dietary preferences when planning and preparing school and CACFP meals.
This final rule updates and reorganizes the regulatory text to
distinguish between disability and non-disability requests more
clearly. Because a dietary need that restricts a participant's diet
could be considered a disability, this final rule removes the
regulatory language regarding participants ``without disabilities who
cannot consume the regular lunch or afterschool snack because of
medical or other special dietary needs.'' \127\ This change reflects
that participant requests for modifications or variations would fall
into one of two categories: disability or non-disability requests.
Additionally, in NSLP regulations, the final rule moves the regulatory
text related to fluid milk substitutes for non-disability reasons to
the section of the regulation that discusses fluid milk requirements (7
CFR 210.10(d)). This change is expected to help clarify the
requirements for fluid milk substitutions for non-disability reasons.
The final rule also adjusts the regulatory language regarding written
requests for fluid milk substitutes, replacing ``medical authority''
with ``State licensed healthcare professional or registered
dietitian.'' This reflects the approach used for fluid milk substitutes
in the proposed rule, which changed ``medical authority'' to ``State
licensed healthcare professional,'' except that this final rule also
includes registered dietitians. This supports USDA's efforts to use
consistent terminology across program regulations. As with prior
regulations and the proposed rule, a child or adult participant's
parent or guardian may also submit a written request for a non-
disability fluid milk substitute in NSLP, SBP, or CACFP. Lastly, this
final rule updates the regulatory definitions of Child in NSLP and SBP
regulations, Child with a disability in NSLP regulations, and Persons
with disabilities in CACFP regulations.
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\127\ This language reflects regulatory language formerly
included in NSLP regulations at 7 CFR 210.10(m)(2). Similar language
was also previously included in CACFP regulations at 7 CFR
226.20(g)(2).
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Along with State licensed healthcare professionals, USDA is
authorizing registered dietitians to submit medical statements for
disability meal modifications in response to public comment, and due to
the specific education and training requirements they receive.
Registered dietitians are not required to have a State license to
submit medical statements for meal modifications under this rule. USDA
agrees that registered dietitians are well-positioned to determine
specific, nutritionally sound meal modifications to support
participants with disabilities. Registered dietitians are credentialed
professionals, and according to the Commission on Dietetic
Registration, registered dietitians are food and nutrition experts who
have met the Commission on Dietetic Registration's (CDR) criteria to
earn the registered dietitian credential.\128\ USDA acknowledges that
other skilled professionals--such as speech therapists, psychologists,
and social workers--have extensive knowledge in their fields and serve
critical roles in the care of children and adults. While USDA does not
authorize acceptance of medical statements for disability meal
modifications beyond State licensed healthcare professionals and
registered dietitians, USDA expects that State licensed healthcare
professionals and registered dietitians will continue to coordinate
with other key professionals, depending on the specific needs of
participants with disabilities. With this rule, USDA is balancing the
importance of improving participant access to meals that meet their
individual needs with the importance of ensuring that schools,
institutions, and facilities have the information they need to keep
participants with disabilities that restrict their diet safe.
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\128\ The Commission on Dietetic Registration is the
credentialing agency for the Academy of Nutrition and Dietetics.
See: Commission on Dietetic Registration. Registered Dietitian (RD)
or Registered Dietitian Nutritionist (RDN) Certification. Available
at: https://www.cdrnet.org/RDN.
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USDA recognizes that some respondents are concerned about dietary
requests that are not medically necessary. Schools, institutions, and
facilities are not obligated to meet requests that are not related to a
participant's disability. Additionally, USDA reminds schools,
institutions, and facilities that their obligation is to provide a meal
modification to accommodate a participant's disability, not to provide
an exact product listed on the medical statement. For example, if a
medical statement lists an expensive, brand-name product as a
substitution for a participant with a disability, the school,
institution, or facility should engage in an interactive process with
the participant's parent or guardian to see if it would be safe and
appropriate to provide a lower-cost, generic brand item. In most
instances, a generic brand is sufficient, unless the brand name item is
medically necessary. In general, if a school, institution, or facility
has concerns about a request, they are responsible for working with the
parent or guardian to develop an appropriate modification and, as
applicable, suitable alternatives.
This final rule also codifies changes related to non-disability
meal variations in the school meal programs and CACFP. The prior NSLP
regulations encouraged schools to consider variations for ``ethnic,
religious, or economic reasons.'' In CACFP, the prior regulations noted
potential variations for ``ethnic, religious, economic, or physical
needs'' at the institution or facility level but did not encourage
variations to meet participant preferences. This final rule changes the
school meal and CACFP regulations to encourage program operators to
meet child and adult participant preferences when planning and
preparing meals. As noted in the proposed rule, meeting non-disability
dietary preferences is encouraged, but not required. Although the
proposed rule specifically listed several categories of non-disability
dietary preferences, in the final rule, USDA has instead opted to refer
to ``preferences'' generally. This is not intended to diminish the
importance of the dietary preferences listed in the proposed rule, but
rather, to allow the regulation to be applied broadly to the range of
child and adult participant dietary preferences. These preferences
include, but are not limited to, the non-disability dietary preferences
included in the proposed rule: cultural, ethical, Tribal, and religious
preferences. The Dietary Guidelines emphasize the importance of
considering dietary preferences and cultural traditions and provide a
framework to be customized to reflect the foodways of the diverse
[[Page 32020]]
cultures in the U.S.\129\ Similarly, the NSLP, SBP, and CACFP allow
schools, institutions, and facilities to choose specific foods to offer
at each meal, provided the meal meets the overarching meal pattern
requirements. USDA acknowledges that, due to operational and budgetary
constraints, program operators may not be able to meet all participant
preferences at each meal service; however, USDA encourages program
operators to strive for an inclusive meal service.
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\129\ According to page ix of the Dietary Guidelines, ``A
healthy dietary pattern can benefit all individuals regardless of
age, race, or ethnicity, or current health status. The Dietary
Guidelines provides a framework intended to be customized to
individual needs and preferences, as well as the foodways of the
diverse cultures in the United States.'' U.S. Department of
Agriculture and U.S. Department of Health and Human Services.
Dietary Guidelines for Americans, 2020-2025. 9th Edition. December
2020. Available at: DietaryGuidelines.gov.
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Consistent with the proposed rule, these changes do not apply to
SFSP. USDA acknowledges that many stakeholders would like to see SFSP
included with these changes. However, USDA instead intends to address
SFSP meal pattern requirements separately and comprehensively in future
rulemaking. The existing policy guidance \130\ for SFSP meal
modifications for disabilities remains in effect.
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\130\ U.S. Department of Agriculture, Policy Memorandum on
Modifications to Accommodate Disabilities in the Child and Adult
Care Food Program and Summer Food Service Program, June 22, 2017.
Available at:https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
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Accordingly, this final rule amends 7 CFR 210.2, 210.10(d)(2) and
(m), 215.7a(b), 220.8(m), 226.2, and 226.20(g) to revise regulatory
requirements for meal modifications for disability and non-disability
reasons for the school meal programs and CACFP. The change requiring
program operators to accept medical statements from registered
dietitians must be implemented by July 1, 2025, for NSLP and SBP, and
by October 1, 2025, for CACFP.
Section 15: Clarification on Potable Water Requirements
Current Requirement
Current NSLP regulations at 7 CFR 210.10(a)(1)(i) require schools
to make potable water available and accessible without restriction to
children at no charge in the places where lunches are served during the
meal service. When breakfast is served in the cafeteria, current SBP
regulations at 7 CFR 220.8(a)(1) require schools to make potable water
available and accessible without restriction to children at no charge.
USDA issued policy guidance to support implementation of this provision
in July 2011. In that policy guidance, USDA specified that schools must
serve plain water to meet the potable water requirement.\131\
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\131\ U.S. Department of Agriculture. Water Availability During
NSLP Meal Service. July 12, 2011. Available at: https://www.fns.usda.gov/cn/water-availability-during-nslp-meal-service.
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Proposed Rule
In the 2020 proposed rule, USDA proposed to allow schools to offer
calorie-free, naturally flavored, noncarbonated water to meet the
potable water requirement. Under the proposed rule, schools would have
the option to continue to offer plain water to meet the potable water
requirement but could also meet the requirement by offering naturally
flavored water.
Public Comments on 2020 Proposed Rule
USDA received 85 comments on the potable water provision of the
2020 proposed rule; all were unique comments. Of these, 37 supported
the proposal, 29 were opposed, and 19 were mixed.
Proponents, including State agencies, school districts, and
industry respondents, argued that offering naturally flavored water
would increase water appeal and consumption. For example, one advocacy
group suggested that water infused with lemons, berries, cucumbers, or
mint would boost student water consumption. A State agency agreed that
water with cucumber, lemon, or herbs would be a low-cost way to improve
the palatability of water.
A few respondents supported expanding potable water options, but
only to water flavored with fresh or frozen fruits or vegetables. Other
respondents argued that this provision should not permit water with
food additives or sweeteners. Some respondents requested clarification
on the type of water schools could offer to meet the potable water
requirement under this provision.
One opponent argued children's mealtime beverage options should be
limited to plain water, milk, and limited amounts of 100 percent fruit
or vegetable juice. Another opponent suggested consuming flavored water
would adapt children's palates toward sweeter beverages, moving them
away from the natural taste of water. Several respondents were opposed
to water flavored with certain ingredients, such as ``artificial
sweeteners'' and other additives. One advocacy group argued that the
goal of the potable water provision is to ensure clean drinking water
for children and maintained there is no reason to revise the current
standard.
Some respondents offered alternatives or suggestions for
implementation. For example, one State agency did not oppose allowing
water flavored with fruits, vegetables, and herbs, but emphasized this
option should be in addition to plain potable water. This State agency
was concerned about food allergies and indicated that maintaining plain
potable water during mealtimes would be important for children who
cannot consume water with fruits, vegetables, or herbs. Regarding water
with fruits or vegetables added, a few advocacy groups suggested
clarifying that fruits or vegetables used to flavor water may not count
toward the meal pattern requirements. Several respondents, including
proponents and opponents, noted the importance of following food safety
guidelines when offering fruit- or vegetable-infused water.
Respondents also highlighted the importance of water consumption
and hydration. One advocacy group emphasized the importance of ensuring
schools have safe drinking water. Another respondent suggested
investing in basic plumbing, as well as installing water bottle filling
stations in schools. A few advocacy organizations stated support for
policies and efforts that expand safe water options for students.
Final Rule
This final rule will not adopt the 2020 proposal to allow schools
to offer calorie-free, naturally flavored, noncarbonated water to meet
the potable water requirement. This decision is supported by public
comments, which noted that some children may have food allergies that
prevent them from consuming water with fruits, vegetables, or herbs. It
is also responsive to public comments that raised concerns about other
ingredients, such as sweeteners or additives. Under this final rule,
schools will continue to be required to make plain potable water
available and accessible without restriction to children at no charge
during the meal service. To clarify this requirement, this final rule
adds the word ``plain'' to the regulations requiring potable water to
be offered with school meals at 7 CFR 210.10(a)(1)(i) and 220.8(a)(1).
As with current regulations, this requirement applies in places where
lunches are served during the meal service, including lunches served
outside of the cafeteria. For breakfast, as with current regulations,
this requirement applies when breakfast is served in the cafeteria.
[[Page 32021]]
Maintaining the requirement to offer plain potable water responds
to public comments that emphasized the importance of prioritizing
access to plain water for children who prefer it, or who cannot consume
water with fruits, vegetables, or herbs due to food allergies. However,
USDA wishes to clarify that the requirement to offer plain potable
water does not limit schools' ability to also offer potable water with
fruits, vegetables, and herbs added, in addition to the required plain
water. For example, a school may offer fruit-infused water at lunch
provided children also have access to plain potable water during the
meal service. State agencies and schools are reminded that reasonable
costs associated with providing potable water are an allowable cost to
the nonprofit school food service account. Additionally, based on
public comment, USDA clarifies that fruits, vegetables, and herbs added
to plain potable water do not count toward the meal pattern
requirements for fruits or vegetables. Schools also are not required to
count the negligible calorie content of water infused with fruits,
vegetables, or herbs toward the weekly calorie limits.
USDA also appreciates public comments regarding the importance of
food safety when offering water with fruits, vegetables, or herbs.
Regulations at 7 CFR 210.13(a) require school food authorities to
ensure that food storage, preparation, and service is in accordance
with the sanitation and health standards established under State and
local law and regulations. School food authorities must also develop a
written food safety program that covers any facility or part of a
facility where food is stored, prepared, or served (7 CFR 210.13(c)).
Schools opting to offer water with fruits, vegetables, or herbs must
continue to follow the food safety requirements as detailed in 7 CFR
210.13(c), as well as applicable State and local requirements.
Accordingly, this final rule amends 7 CFR 210.10(a)(1)(i),
210.18(h)(2)(v), and 220.8(a)(1) to add the word ``plain'' to the
potable water requirements. Schools are not required to change menus or
operations as a result of this technical change.
Section 16: Synthetic Trans Fats
Current Requirement
Current regulations prohibit synthetic trans fat in the school
lunch and school breakfast programs, and in foods sold to children on
campus during the school day (7 CFR 210.10(f)(4), 220.8(f)(4), and
210.11(g)). This requirement was included in Nutrition Standards in the
National School Lunch and School Breakfast Programs \132\ and in
National School Lunch Program and School Breakfast Program: Nutrition
Standards for All Foods Sold in School as Required by the Healthy,
Hunger-Free Kids Act of 2010.\133\ The synthetic trans fat prohibition
was phased in, beginning with the NSLP, in SY 2012-2013.
---------------------------------------------------------------------------
\132\ U.S. Department of Agriculture. Nutrition Standards in the
National School Lunch and School Breakfast Programs. (77 FR 4088,
January 26, 2012). Available at: https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs.
\133\ U.S. Department of Agriculture. National School Lunch
Program and School Breakfast Program: Nutrition Standards for All
Foods Sold in School as Required by the Healthy, Hunger-Free Kids
Act of 2010. (81 FR 50132, July 29, 2016). Available at: https://www.federalregister.gov/documents/2016/07/29/2016-17227/national-school-lunch-program-and-school-breakfast-program-nutrition-standards-for-all-foods-sold-in.
---------------------------------------------------------------------------
In 2015, the FDA determined that partially hydrogenated oils, the
major source of artificial (synthetic) trans fat in the food supply,
were no longer ``Generally Recognized as Safe,'' or GRAS. Based on this
determination, the FDA took regulatory action to eliminate partially
hydrogenated oils (and, therefore, synthetic trans fats) from the
United States food supply. While the compliance date for certain uses
was extended, the compliance date for most uses of partially
hydrogenated oils was June 18, 2018.\134\ As of January 2020, food
manufacturers were no longer allowed to sell foods containing trans
fats. This FDA action effectively banned trans fats from being added to
foods made or sold in the U.S., making additional regulations
prohibiting synthetic trans fats in school meals unnecessary.
---------------------------------------------------------------------------
\134\ U.S. Food and Drug Administration. Final Determination
Regarding Partially Hydrogenated Oils (Removing Trans Fat).
Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
---------------------------------------------------------------------------
Proposed Rule
In the 2020 proposed rule, USDA proposed to remove the synthetic
trans fat prohibition for NSLP, SBP, and foods sold to children on
campus during the school day. The proposed rule stated that under this
change, schools would not have to comply with, and State agencies would
not have to monitor, synthetic trans fat requirements. As noted in the
proposed rule, based on the FDA's action to remove synthetic trans fat
from the United States food supply, USDA determined that school meal
regulations prohibiting synthetic trans fat were no longer necessary.
Because FDA took action to remove synthetic trans fats from the food
supply, USDA concluded that maintaining additional regulations to
prohibit synthetic trans fats in school meals was unnecessary.
Public Comments on 2020 Proposed Rule
USDA received 29 comments on the synthetic trans fat provision of
the 2020 proposed rule; all were unique comments. Of these, 14
supported the proposal, 14 were opposed, and 1 was mixed.
Proponents, including industry respondents and advocacy groups,
supported removing the synthetic trans fat prohibition due to the FDA's
actions to remove synthetic trans fat from the food supply. One
industry respondent supported the change but questioned how trans fat
that occurs naturally in foods would be monitored. However, another
industry respondent noted that naturally occurring trans fat, which is
present in some meat and dairy products, occurs at very low levels. A
few State agencies supported the proposal. One State agency noted that
synthetic trans fat would not be a concern in school meals after its
elimination from the U.S. food supply. Another State agency agreed but
noted that the FDA's compliance date could be extended; this State
agency recommended that USDA delay implementation of its regulation
until synthetic trans fat is fully eliminated from the food supply.
A few opponents cited general health concerns related to synthetic
trans fat consumption, without acknowledging the elimination of
synthetic trans fat from the food supply. Several other opponents,
including State agencies and Attorneys General from several States,
cited concerns about the FDA's compliance date for the elimination of
synthetic trans fat. One State agency provided mixed feedback,
recommending that USDA align its final standard with the FDA's
compliance date. Another State agency opponent cited concerns about
synthetic trans fat in non-domestic foods.
Final Rule
This final rule removes the dietary specification prohibiting
synthetic trans fat in the school lunch and breakfast programs and in
foods sold to children on campus during the school day. Under this
change, schools will no longer need to include the synthetic trans fat
prohibition in their procurement documentation, and State agencies will
no longer need to review product labels or manufacturer specifications
for compliance with the synthetic trans fat dietary specification. This
change reduces burden by
[[Page 32022]]
eliminating a requirement that USDA determined is no longer necessary
due to the FDA's actions to eliminate synthetic trans fat from the U.S.
food supply.
USDA acknowledges respondent concerns about the compliance date for
the FDA's order eliminating synthetic trans fat from the U.S. food
supply. While implementation of the FDA's order began in June 2018, at
the time the 2020 proposed rule published, the compliance date for
certain uses of partially hydrogenated oils had been extended. The
final compliance date of January 2021, which extended the compliance
date for specific, limited petitioned uses of partially hydrogenated
oils, has now been in effect for several years.\135\
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\135\ See: ``Implementation.'' U.S. Food and Drug
Administration. Final Determination Regarding Partially Hydrogenated
Oils (Removing Trans Fat). Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
---------------------------------------------------------------------------
USDA appreciates concerns one respondent raised regarding synthetic
trans fat in non-domestic foods. The elimination of synthetic trans fat
applies to all foods sold in the U.S food supply, including non-
domestic foods. Additionally, school food authorities are required by
law to purchase domestic commodities or products to the maximum extent
practicable. This rulemaking strengthens the existing Buy American
requirements and establishes a new threshold limit for non-domestic
food purchases (see Section 18: Buy American). Further, USDA data from
SY 2017-2018 found that fruits and vegetables are by far the most
common non-domestic food purchases for school food authorities.\136\
Therefore, USDA does not expect the limited use of non-domestic foods
in the NSLP and SBP to result in an increase in synthetic trans fats in
school meals.
---------------------------------------------------------------------------
\136\ Of the 26 percent of school food authorities that reported
using exceptions to the Buy American provision in SY 2017-2018, 93
percent reported using them to purchase fruit, while 53 percent
reported using them to purchase vegetables. By comparison, 18
percent reported using them to purchase ``other'' foods, such as
yeast, oils, and spices, and less than 10 percent each reported
using them to purchase grains or meat/meat alternates. See Exhibit
4: Among SFAs that Reported Using an Exception to the Buy American
Provision, Reasons for Using an Exception and Products Purchased.
U.S Department of Agriculture, Food and Nutrition Service, Office of
Policy Support, Child Nutrition Program Operations Study (CN-OPS-
II): SY 2017-18. Beyler, Nick, Jim Murdoch, and Charlotte Cabili.
Project Officer: Holly Figueroa. Alexandria, VA: November 2022.
---------------------------------------------------------------------------
Finally, USDA acknowledges public comments about naturally
occurring trans fat. The FDA notes that trans fat occurs naturally in
small amounts in some meat and dairy products and is present at very
low levels in other edible oils.\137\ In the 2012 rule, USDA clarified
that the trans fat prohibition for school meals would not apply to
naturally occurring trans fat present in some meat and dairy products.
Rather, it would apply to synthetic trans fat, which the 2012 rule
preamble noted ``are found in partially hydrogenated oils used in some
margarines, snack foods, and prepared desserts.'' \138\ This final rule
does not impact naturally occurring trans fat, which continue to be
permitted in school meals.
---------------------------------------------------------------------------
\137\ U.S. Food and Drug Administration. Final Determination
Regarding Partially Hydrogenated Oils (Removing Trans Fat).
Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
\138\ U.S. Department of Agriculture. Nutrition Standards in the
National School Lunch and School Breakfast Programs. (77 FR 4088,
January 26, 2012). Available at: https://www.federalregister.gov/d/2012-1010/p-161.
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Accordingly, this final rule amends 7 CFR 210.10(a)(3), (b)(1),
(c), (f), (g), (h), and (j), 210.11(f) and (g)(2), 210.18(l)(2)(iii),
and 220.8(a)(3), (b)(1), (c), (f) through (h), and (j). This change
reduces burden on State agencies and schools. Schools are not required
to change menus or operations as a result of this change.
Section 17: Professional Standards: Hiring Exception for Medium and
Large Local Educational Agencies
Current Requirement
Current regulations at 7 CFR 210.30(b)(1) describe the hiring
standards for school nutrition program directors; the standards vary
for directors operating in small, medium, and large local educational
agencies. Specifically, the hiring requirements for school nutrition
program directors in medium (2,500 to 9,999 students) and large (10,000
or more students) local educational agencies are as follows:
According to 7 CFR 210.30(b)(1)(ii), school nutrition
program directors with local educational agency enrollment of 2,500 to
9,999 students (i.e., a medium local educational agency) must have:
A bachelor's degree, or equivalent educational experience,
with an academic major or concentration in food and nutrition, food
service management, dietetics, family and consumer sciences, nutrition
education, culinary arts, business, or a related field;
A bachelor's degree, or equivalent educational experience,
with any academic major or area of concentration, and a State-
recognized certificate for school nutrition directors;
A bachelor's degree in any academic major and at least two
years of relevant experience in school nutrition programs; or
An associate's degree, or equivalent educational
experience, with an academic major or area of concentration in food and
nutrition, food service management, dietetics, family and consumer
sciences, nutrition education, culinary arts, business, or a related
field and at least two years of relevant school nutrition program
experience.
According to 7 CFR 210.30(b)(1)(iii), school nutrition
program directors with local educational agency enrollment of 10,000 or
more students (i.e., a large local educational agency) must have:
A bachelor's degree, or equivalent educational experience,
with an academic major or area of concentration in food and nutrition,
food service management, dietetics, family and consumer sciences,
nutrition education, culinary arts, business, or a related field;
A bachelor's degree, or equivalent educational experience,
with any academic major or area of concentration, and a State-
recognized certificate for school nutrition directors; or
A bachelor's degree in any major and at least five years
of experience in management of school nutrition programs.
Proposed Rule
USDA proposed to allow State agency discretion to approve the
hiring of an individual to serve as a school nutrition program director
in a medium or large local educational agency, for individuals who have
10 or more years of school nutrition program experience but who do not
hold a bachelor's or an associate's degree. Additionally, USDA proposed
to clarify in regulation that State agencies may determine what counts
as ``equivalent educational experience'' for the hiring standards. The
proposed rule suggested that this change would allow highly experienced
individuals to advance their careers in school food service.
Additionally, the proposal could help to ease hiring challenges that
USDA understands some medium and large local educational agencies
experience.
Public Comments
USDA received 297 comments on the proposed changes for professional
standards including 169 unique comments. Of these, 173 supported the
proposal, including 106 unique comments, 23 were opposed, all of which
were unique comments, and 101 were mixed, including 40 unique comments.
State agencies, school nutrition professionals, advocacy groups,
industry respondents, school
[[Page 32023]]
districts, dietitians, and individuals submitted comments.
One school district proponent described the proposal as a ``solid
move'' that would benefit capable professionals with relevant work
experience; this proponent affirmed such individuals are an asset to
school nutrition programs. Another school district agreed, stating that
the leadership and achievements of experienced candidates should be
valued. Several respondents suggested that this proposal would allow
knowledgeable professionals to use their skills to benefit schools and
students, with some citing their personal experiences in the field of
school nutrition. An individual maintained this change would be
especially useful in rural communities with small applicant pools and
limited ability to hire directors that meet the current education
requirements. A school district agreed, stating that any change to
expand the pool of candidates would be welcome.
An individual proponent affirmed that the proposal would expand
opportunity for school districts to hire qualified candidates from
within their district. Similarly, an industry respondent suggested the
proposal would allow candidates in assistant director positions to
advance in their careers. A State agency agreed, asserting that this
change would allow school districts to promote experienced employees
who may be the best candidate for the job. A school district suggested
the proposal would allow a path for growth in the field of child
nutrition while still requiring the experience needed to do the job.
An advocacy group cited a Congressional Research Service report
which indicated that 94 percent of foodservice employees in U.S.
elementary and secondary schools are women. This respondent suggested
that the degree requirement creates an inequity to advancement in
school nutrition, citing the cost of obtaining a degree as an example
of a barrier. While this respondent supported the proposal, they also
urged USDA to promote greater economic opportunity for the school
nutrition workforce, including support for professional development.
Similarly, a State agency acknowledged that the ability to obtain a
degree is ``often a benefit of class and economic privilege'' and
supported valuing experience equally. One respondent, citing their
personal experience, described working toward an advanced degree as
``time consuming and extremely expensive.'' This respondent also raised
concerns about student loan debt, particularly for individuals who have
already been working in child nutrition for decades. A school district
agreed, stating that experience should matter just as much as a degree,
particularly given barriers many people face in obtaining a degree.
A national organization representing tens of thousands of school
nutrition professionals noted that the professional standards
requirements ensure that school nutrition directors have the education
and skills necessary to excel in their roles and to work alongside
principals, superintendents, and other highly credentialed individuals.
At the same time, this organization supported allowing a minimum of 10
years of school nutrition program experience to substitute for a degree
due to hiring and recruitment issues that some schools are
experiencing. Similarly, another respondent cited concerns about
staffing and workload challenges, and suggested the proposal would
benefit schools. An advocacy group emphasized that this proposal could
help to address hiring issues by expanding access to promotion
opportunities within school nutrition. A State agency agreed,
suggesting this proposal would reward dedicated school nutrition staff
and encourage career growth.
Other respondents opposed the proposal. One school district argued
that a college degree is necessary for the director position in medium
and large districts. This respondent noted that this position requires
knowledge of food safety, personnel management, and how to ``run a
business.'' A few other school districts agreed, arguing higher
education is necessary to succeed as a director in medium and large
districts. A dietitian maintained that years of experience should not
substitute for a degree; along with formal education, this respondent
emphasized the importance of ongoing learning. Another opponent argued
that the requirements placed on school nutrition professionals have not
lessened; therefore, USDA should not provide flexibility to the hiring
standards. A school district opponent described their education
credentials, maintaining that their advanced degree provided them with
skills to balance budgets and develop menus for students with special
diets. This respondent urged USDA to uphold the current standards.
Another school district argued that the current degree requirement
gives school nutrition directors credibility when interacting with
school administrators, staff, and families.
In addition to general feedback on the proposed changes, USDA
requested public input on the following questions:
Is it reasonable to allow medium and large local
educational agencies to substitute 10 years of school nutrition program
experience for a bachelor's or an associate's degree when hiring a
school nutrition program director?
Should USDA also consider allowing medium and large local
educational agencies to substitute other types of experience, such as
experience in other food service sectors?
How often do State agencies and school districts
anticipate using the hiring exception?
What strategies do local educational agencies currently
use to recruit qualified school nutrition program directors?
A handful of respondents provided feedback in response to the first
question, which was about the number of years of experience that USDA
should allow to substitute for a degree when hiring a director in a
medium or large local educational agency. A dietitian argued that 10
years of real-world experience would provide an individual the
knowledge needed to succeed as a director. An advocacy group asserted
that a school nutrition professional with 10 years of experience would
have participated in many hours of training, in addition to their
regular job duties, making them ``very capable of doing an excellent
job as a director.'' An industry respondent agreed that 10 or more
years of child nutrition program experience ``is a suitable alternative
to traditional education.'' One respondent suggested 10 years of
experience is appropriate for large school districts and suggested 5 to
7 years could be appropriate for medium school districts, provided the
candidate had experience with procurement, menu planning, and personnel
management. A few school districts suggested that USDA consider
lowering the number of years from 10 to 5 years for medium and large
school districts. A State agency agreed, maintaining that allowing 5
years of school nutrition program experience to substitute for a degree
would further ease hiring challenges faced by some school districts.
Another State agency suggested that it would be reasonable to require 4
years of child nutrition program experience, rather than 10 years,
given it typically takes about 4 years to complete a bachelor's degree.
A school district respondent did not provide a specific number of years
of experience needed, but emphasized the value of institutional
knowledge, which they conveyed is the result of ``many years spent
doing the work.''
Respondents also addressed whether USDA should allow other types of
experience, such as experience in other
[[Page 32024]]
food service sectors, to substitute for a degree. One school district
encouraged USDA to allow other food service experience, including
military food service, to count when assessing a candidate's potential.
A State agency agreed, provided the work experience includes duties
similar in size and scope to the role of a school nutrition program
director. This State agency noted that other food service sectors may
provide similar experience in procurement, menu planning, ordering,
receiving, invoicing, and inventory control. Conversely, given the
specific requirements of school meal programs, a national organization
representing tens of thousands of school nutrition professionals
maintained that only school nutrition program experience should be
allowed to substitute for a degree. This organization further suggested
that this experience should include managing or supervising personnel
and overseeing school meal programs at the district level for multiple
sites. A school district proponent also emphasized the importance of
child nutrition program experience, as opposed to commercial food
service experience. A State agency agreed, noting that other sectors
are not as regulated as USDA food service programs, which may make the
transition from another area of food service to school nutrition
difficult for a new director.
A few respondents provided input on the third question regarding
how often the proposed hiring exception would be used. One State agency
noted that they receive at least two requests for hiring exceptions for
medium and large school districts per year; this respondent supported
the proposal. A second State agency proponent expected to receive about
four requests for an exception per year, with the potential for more,
should the proposal be finalized. A third State agency did not directly
address the question, but shared one real-world example where this
exception could have been used to hire a highly qualified candidate
with 20 years of experience in their State. This State agency supported
the proposal, describing it as ``reasonable.'' On the other hand, one
State agency did not anticipate the flexibility would be used often,
suggesting that medium and large school districts would opt to require
a bachelor's or an associate's degree for director positions.
A few respondents shared strategies that school districts use to
recruit qualified school nutrition program directors. One State agency
noted that school districts recruit qualified candidates through
advertisements on websites, search engines, and social media, and by
holding job fairs. Another State agency suggested that partnerships
with career tech centers and college programs have helped some school
districts, while acknowledging that recruiting directors can be a
challenge. One respondent stated that school districts post position
openings through ``normal recruitment channels.''
Some respondents offered alternatives to the proposal, or suggested
changes. For example, a few respondents recommended that USDA outline
specific types of experience candidates must have to qualify for the
hiring exception, in addition to their years of experience. A school
district emphasized the importance of understanding finances, which
they argued is crucial for making strategic decisions. An advocacy
group suggested that USDA require experience in a supervisory role and
in counting, claiming, menu development, and other areas of program
administration. This respondent also suggested requiring a certain
number of technical school or college credits to qualify for this
exception. A dietitian recommended requiring management skills and
emphasized the importance of ensuring directors can interpret
regulations, plan menus, oversee a budget, and coach staff. Another
respondent suggested that USDA specify whether the years of experience
would need to be consecutive for a candidate to qualify for the
exception.
Other respondents suggested that USDA narrow the scope of the
proposed change or add other requirements to the process. One
respondent recommended that medium and large school districts should
only be allowed to use this exception if they implement a plan for the
candidate to earn a degree. A State agency recommended limiting this
exception to instances when there is documentation that no candidates
who applied for the position met the education criteria. An advocacy
group recommended the exception only be allowed in rural areas, arguing
that urban school districts can find candidates that meet the existing
standards. However, another advocacy group acknowledged differences in
local needs based on school district size and urbanicity, and suggested
State agencies should have discretion to approve the hiring of a
director based on specific local context. Going further, an individual
recommended that it should be the school district's decision whether to
use the hiring exception, presumably as opposed to requiring State
agency approval. Another respondent suggested eliminating the education
requirements entirely, arguing if someone can do the job based on their
skills, they should be eligible. A form letter campaign supported the
proposal but suggested that USDA seek guidance from school nutrition
professionals to make sure the change is implemented in a way that is
``as helpful as possible.''
A few respondents provided feedback on school nutrition hiring and
training requirements in general. One advocacy group acknowledged the
importance of the professional standards requirements, noting that they
ensure school nutrition program personnel have the knowledge and skills
they need to operate the programs successfully. This respondent
suggested that the professional standards have supported improvements
in meal quality in their State and nationwide. A few respondents noted
the value of mentoring for a successful career in school nutrition.
Another emphasized the important role of their State agency, adding
that they feel well supported by their State agency in their continued
learning.
Final Rule
This final rule codifies the proposal to allow State agency
discretion to approve the hiring of an individual to serve as a school
nutrition program director in a medium or large local educational
agency, for individuals who have 10 or more years of school nutrition
program experience but who do not hold a bachelor's or an associate's
degree. Directors hired under this exception must have a high school
diploma or GED. USDA expects that this change will allow highly
experienced and qualified individuals to advance their careers in
school nutrition. This change is also expected to ease hiring
challenges which USDA understands are experienced by some medium and
large local educational agencies.
USDA appreciates public input on the number of years of experience,
and the type of experience, that should qualify a candidate for this
exception. Several respondents acknowledged the importance of
experience in school nutrition, including experience developing menus
that meet the regulatory meal pattern requirements, counting and
claiming meals, and maintaining compliance with other program rules.
USDA agrees with public comments that suggested a candidate should have
school nutrition experience to qualify for this exception. Further,
USDA agrees with public comments stating that 10 years is an
appropriate amount of time to substitute for a degree. The candidate's
experience does not need to be in consecutive years; a
[[Page 32025]]
candidate only needs to accrue a total of 10 years of experience in
school nutrition to qualify for this exception.
This final rule also codifies in regulation that State agencies may
determine what counts as ``equivalent educational experience'' for the
hiring standards. USDA provided the following examples in the proposed
rule, which were supported by a national organization representing tens
of thousands of school nutrition professionals:
If a candidate for a director position in a medium local
educational agency does not have an associate's degree, but has more
than 60 college credits in a relevant field, the State agency would
have the discretion to approve the hiring of that candidate.
If a candidate for a director position in a large local
educational agency does not have a bachelor's degree, but has an
associate's degree, is a School Nutrition Specialist certified by the
School Nutrition Association, and is a Nutrition and Dietetics
Technician, Registered (NDTR) \139\ certified by the Academy of
Nutrition and Dietetics, then the State agency has the discretion to
approve the hiring of that candidate.
---------------------------------------------------------------------------
\139\ Nutrition and dietetics technicians, registered (NDTRs)
are educated and trained at the technical level of nutrition and
dietetics practice for the delivery of safe, culturally competent,
quality food and nutrition services. See: Academy of Nutrition and
Dietetics, What is a Nutrition and Dietetics Technician Registered?
Available at: https://www.eatrightpro.org/about-us/what-is-an-rdn-and-dtr/what-is-a-nutrition-and-dietetics-technician-registered.
---------------------------------------------------------------------------
These are just two possible scenarios where a State agency may
choose to count a candidate's experience toward the hiring requirements
as ``equivalent educational experience.'' State agencies have
discretion to determine that other types of experience should count
toward ``equivalent educational experience'' on case-by-case basis.
As described in 7 CFR 210.15(b)(7), school food authorities must
maintain records to demonstrate compliance with the professional
standards for school nutrition program directors, managers, and
personnel, including the hiring requirements. This final rule does not
change the overall recordkeeping requirements for professional
standards. However, to demonstrate compliance when using this
exception, the school food authority and State agency would need to
maintain documentation of the exception. For example, the school food
authority and State agency could maintain documentation of the school
food authority's request for the exception, and documentation of the
State agency's approval. Similarly, this final rule does not change the
Administrative Review requirements for professional standards.
Professional standards will continue to be evaluated as part of the
General Areas of Review, as described at 7 CFR 210.18(h)(2)(ix).
USDA appreciates respondent feedback about the importance of
ensuring school nutrition program directors in medium and large
districts have the skills needed to succeed in their jobs. Respondents
emphasized that obtaining a bachelor's or an associate's degree is an
effective way for candidates to demonstrate they have the knowledge and
skills needed to succeed as a director, which respondents stressed can
be a challenging position. Directors hired under this provision are
encouraged, but not required, to work toward a degree in food and
nutrition, food service management, dietetics, family and consumer
sciences, nutrition education, culinary arts, business, or a related
field. While USDA acknowledges the value in obtaining a degree, USDA
has determined that hands-on experience in the school nutrition
programs is also an effective way for candidates to demonstrate they
have the knowledge and skills needed to succeed as a director in a
medium or large school district. USDA also recognizes the importance of
providing an alternative option for school nutrition professionals to
advance in their careers, even if they are unable to obtain a degree
due to financial or other barriers. This exception is available at the
discretion of the State agency. School districts and State agencies are
encouraged to work together to apply this exception on case-by-case
basis as needed and as deemed appropriate.
In public comments, respondents recommended that USDA require
candidates to meet specific criteria, in addition to the candidate's
years of experience, to qualify for this exception. In this final rule,
USDA will not require candidates to meet specific criteria, beyond the
required years of experience. However, school districts and State
agencies may choose to require candidates to have specific types of
experience in order to qualify under this exception. For example, a
school district could require candidates to have experience managing a
budget or supervising staff to qualify for the director position. As
this exception is available at the State agency's discretion, State
agencies may also apply additional criteria when using the exception.
As proposed, this final rule removes the existing table at 7 CFR
210.30(b)(2), which provided a summary of the school nutrition program
director hiring standards. USDA determined the amount of information
within the table was excessive, and instead of maintaining the table in
regulations, will develop a more user-friendly table summarizing the
hiring standards to be posted on the USDA Food and Nutrition Service
public website. The hiring standards remain in regulation at 7 CFR
210.30(b)(1); therefore, this change--which only removes the summary
table--is not substantive. In this final rule, USDA also made
corrections to current paragraph leveling in 7 CFR 210.30 and reprinted
the table summarizing required annual training with non-substantive
changes to improve usability.
USDA acknowledges and appreciates public comments from school
nutrition directors and staff regarding the importance of their job
duties. School nutrition professionals are incredibly hardworking
individuals who care deeply about the children they serve. Many school
nutrition professionals, some of whom have worked in school nutrition
for decades, submitted public comments describing the great pride they
take in their work. USDA also recognizes that school nutrition
professionals have faced many challenges in their work over the past
several years, including serving as essential, front-line workers
during the COVID-19 pandemic and more recently, responding to supply
chain disruptions and high food costs. USDA remains committed to
supporting school nutrition professionals throughout implementation of
this final rule and beyond. Additionally, Team Nutrition's Professional
Standards Resources website \140\ provides a variety of resources which
support school nutrition professionals with implementing and meeting
the professional standards requirements. These include the Guide to
Professional Standards, the Professional Standards Training Database,
and the Professional Standards Training Tracker Tool, among others.
More information regarding USDA's efforts to support schools and school
nutrition professionals may be found in Section 1: Background of this
preamble.
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\140\ U.S. Department of Agriculture. Professional Standards.
Available at: https://www.fns.usda.gov/cn/professional-standards.
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Accordingly, this final rule amends 7 CFR 210.30(b)(1) to allow
State agency discretion to approve the hiring of an individual to serve
as a school nutrition program director in a medium or large local
educational agency, for individuals who have 10 years or more of school
nutrition program experience but who do not hold a bachelor's or an
[[Page 32026]]
associate's degree. At the discretion of the State agency, this change
provides local educational agencies an optional hiring flexibility.
Schools are not required to change menus or operations as a result of
this provision.
Section 18: Buy American
This section includes the following sub-sections:
Section 18A describes limited exceptions to the Buy
American requirement.
Section 18B details Buy American exception documentation
and reporting requirements.
Section 18C explains procurement procedures.
Section 18D defines the term ``substantially'' as it
relates to the Buy American requirements.
Section 18E clarifies requirements for harvested farmed
and wild caught fish.
Section 18A: Limited Exceptions to the Buy American Requirement
Current Requirement
The Buy American provision established under the National School
Lunch Act (NSLA, 42 U.S.C. 1760(n)) and program regulations at 7 CFR
210.21(d)(2) and 220.16(d)(2) requires school food authorities to
purchase domestic commodities or products ``to the maximum extent
practicable.'' This provision supports the mission of the child
nutrition programs, which is to serve children nutritious meals and
support American agriculture. Through policy guidance, USDA has
detailed limited exceptions to the Buy American requirements.\141\
These limited exceptions apply when the purchase of domestic foods is
not practicable and include the following:
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\141\ U.S. Department of Agriculture. SP 38-2017 Compliance with
and Enforcement of the Buy American Provision in the NSLP. June
2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
---------------------------------------------------------------------------
The product is not produced or manufactured in the U.S. in
sufficient and reasonably available quantities of a satisfactory
quality; or
Competitive bids reveal the costs of a U.S. product are
significantly higher than the non-domestic product.
Currently, no regulations establish a definition of ``significantly
higher'' when using an exception to the Buy American provision. The
school food authority is responsible for determining the dollar amount
or percentage which constitutes a significantly higher cost for a
domestic product, thus permitting the use of an exception.
The Buy American provision is applicable to school food authorities
located in the 48 contiguous United States. Although Alaska, Hawaii,
and the U.S. territories are exempt from the Buy American provision,
school food authorities in Hawaii and Puerto Rico are required to
purchase food products produced in their respective State or territory
in sufficient quantities, as determined by the school food authority,
to meet school meal program needs, per 7 CFR 210.21(d)(3) and 42 U.S.C.
1760(n)(4)).
Proposed Rule
USDA proposed to strengthen the Buy American requirement by
maintaining the current limited exceptions and establishing a new
threshold limit for school food authorities that use these exceptions.
USDA proposed to codify the following exceptions, previously issued
through guidance, for when non-domestic foods may be purchased by
school food authorities:
The product is not produced or manufactured in the U.S. in
sufficient and reasonably available quantities of a satisfactory
quality; or
Competitive bids reveal the costs of a U.S. product are
significantly higher than the non-domestic product.
Additionally, USDA proposed to institute a 5 percent ceiling on the
non-domestic commercial foods a school food authority may purchase per
school year, based on total commercial food costs. Section 12 of the
NSLA (42 U.S.C. 1760) mandates that the Secretary require school food
authorities to ``purchase, to the maximum extent practicable, domestic
commodities or products.'' Under the statute, this requirement applies
to school food authorities located in the contiguous United States and
a purchase of a domestic commodity or product for the school lunch or
school breakfast program. By proposing a cap on when school food
authorities may procure non-domestic commercial foods, USDA is
balancing the statutory mandate to Buy American and the intent of the
Buy American provision at Section 2 of the NSLA (42 U.S.C. 1751) to ``.
. . encourage the domestic consumption of nutritious agricultural
commodities and other foods . . .'' while also recognizing that there
are times when purchasing domestic foods is not practicable for
schools. Finally, consistent with current guidance, USDA proposed to
clarify in regulation that school food authorities have discretion to
determine whether an exception applies.
Public Comments
USDA received 138 comments on the proposed limited exceptions to
the Buy American requirement. Of these, 20 supported the proposed
standard, 72 were opposed, and 46 were mixed. Most respondents
supported codifying the current exceptions for products not available
domestically, but some requested that the significant cost differential
be defined or eliminated. Most expressed concern that the 5 percent cap
on non-domestic commercial foods is too restrictive.
Importance of Supporting American Agriculture
Several respondents, including, State agencies, Federal elected
officials, advocacy groups, and individuals, supported strengthening
the Buy American provision. One respondent stated that the proposal
supports local farmers and the economy while also protecting the
environment by reducing emissions from transporting food long
distances. Another respondent affirmed that strengthening the Buy
American provision would increase sourcing from local and regional
producers. Other respondents supported the proposal for economic
reasons. For example, a trade association stated that the 5 percent cap
would disincentivize the use of U.S. taxpayer dollars to purchase non-
domestic food products. An advocacy group stated that strengthening the
provision would maximize public dollars spent on our nation's food and
farm economy.
Implementation Challenges: Loss of Variety for Students
Some respondents opposed the proposal, including professional
organizations, school districts, dietitians, and individuals. One
professional organization asserted that the proposed 5 percent of total
costs per school year ceiling on non-domestic commercial foods is too
restrictive and could limit students' access to a wide variety of fresh
and appealing produce throughout the school year. This respondent
mentioned that the proposed changes may place a significant
administrative burden on school meal programs and complicate an already
complex, challenging procurement process. A State agency agreed, adding
that the proposed changes may cause unnecessary stress for menu
planners. This State agency expressed that the proposal would affect
States located in the north that have shorter growing seasons.
Implementation Challenges: Supply Chain Issues
Some respondents discussed the current supply chain issues, stating
that the proposal would make the procurement process more difficult and
[[Page 32027]]
burdensome while decreasing variety for students. One respondent
asserted that the droughts in California, damaged grain crops in the
Midwest, and unseasonably cold weather in the south have impacted the
availability of domestic food. A respondent mentioned that the Buy
American provision states that schools should purchase domestic
products to the maximum extent ``practicable,'' but with the current
supply chain challenges, purchasing 95 percent of food domestically is
not ``practicable.'' One respondent stated that the 5 percent ceiling
is not reasonable while another questioned if the 5 percent ceiling is
possible to maintain.
Implementation Challenges: Administrative Burden
Some respondents raised concerns about tracking non-domestic costs.
A State agency asserted that maintaining documentation would be
burdensome for schools and State agencies, especially for small school
food authorities with limited staff. Another State agency agreed with
the intent of the proposal but argued that the proposed limitation of 5
percent on non-domestic food purchases, is too restrictive. This State
agency said as proposed, this provision will place significant
administrative burden on school meal operators and State agencies,
adding to an already complex, challenging Federal procurement process.
Alternative Approaches Suggested by Comments
A few trade associations appreciated USDA's efforts to strengthen
the Buy American provision for school nutrition programs and supported
the proposed 5 percent of total costs cap for non-domestic food.
However, these respondents suggested that USDA apply the 5 percent cap
to categories and/or product type,\142\ established by the USDA's
Agricultural Marketing Service, instead of total commercial food
purchases. Some of these trade associations suggested that USDA
eliminate or define the ``significant cost differential'' exception,
stating that it is a vague standard with inconsistent application and
that it creates a loophole for distributors.
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\142\ AMS used the following list as product types: Beef,
Cotton, Dairy Products, Eggs, Fish & Seafood, Flowers & Plants,
Fruits, Goat, Grain, Lamb, Nuts, Pork, Organic, Poultry, Rabbits,
Rice & Pulses, Vegetables, Specialty Products, Tobacco, Wool &
Mohair. Also available at: https://www.ams.usda.gov/grades-standards.
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In addition to general feedback on the proposal, USDA requested
input on the following questions:
Is the proposed 5 percent of total costs per school year
ceiling on the non-domestic commercial foods a school food authority
may purchase a reasonable ceiling, or should a different percentage be
used? Would the 5 percent cap encourage those school food authorities
using exceptions to reduce the amount of non-domestic products they
purchase? USDA requests that respondents include justification and
reasons behind their response.
How feasible would tracking and documenting the total
amount of non-domestic food purchases be? Would purchasing and record
keeping processes need to be altered? Does the documentation of total
non-domestic purchases alleviate burden associated with documenting
each limited exception that is used? And any additional information
about how school food authorities would document the total amount of
non-domestic food purchases versus total annual food purchases.
About 34 respondents provided input on the first question,
regarding the 5 percent of total costs per school year ceiling on non-
domestic purchasing. Many respondents stated the proposed 5 percent cap
is too restrictive and that the data used to determine the proposed cap
is outdated. One respondent stated that there have been supply chain
disruptions, inflation, increased procurement challenges due to natural
disasters that impact school meal programs, and a pandemic. Due to
these factors, this respondent did not feel the proposed 5 percent cap
accurately represents the current procurement landscape and does not
apply lessons learned from the pandemic. This respondent also stated
that the 5 percent cap is significantly lower than current procurement
trends. In developing this new requirement, FNS used the most recent
data available which was collected in SY 2017-2018 and showed school
food authorities spent, on average, 8.5 percent of food costs on non-
domestic products.
An individual asserted that the proposed 5 percent cap would
increase burden for school nutrition professionals. State agencies
suggested that the 5 percent cap would make procurement more cumbersome
and add complexity to the oversight process. State agency respondents
also argued that mandating a 5 percent cap on non-domestic food
products would create additional burden on schools.
Some respondents provided alternatives to the 5 percent cap for
non-domestic food purchases. For example, one individual suggested a 10
percent cap. A State agency recommended an exemption list for items
like bananas, in addition to the 5 percent cap. Another State agency
urged USDA to require school food authorities to develop a system to
track non-domestic food products but noted that this would take time.
This State agency suggested that USDA create an exception list of food
products that have been determined as not produced in the U.S. in
sufficient and reasonable available commercial quantities of
satisfactory quality, such as canned oranges, canned pineapple, and
fresh bananas.
Regarding the second question, 27 respondents provided input on the
feasibility of the proposed recordkeeping process. Some respondents
affirmed that tracking non-domestic food purchases would be an
administrative burden. One individual argued that the recordkeeping
process would contribute to administrative burden because items would
need separate invoices for a successful audit and tracking purposes.
Another respondent asserted maintaining documentation would require
vendors and distributors to provide information about non-domestic food
products.
A State agency agreed, asserting that school food authorities do
not have adequate time and resources for additional paperwork.
Final Rule
This final rule changes the current limited exceptions for the Buy
American provision and codifies the two limited circumstances when
school food authorities may purchase non-domestic foods:
1. The product is listed on the Federal Acquisitions Regulations
(FAR) 25.104 Nonavailable articles list and/or is not produced or
manufactured in the U.S. in sufficient and reasonably available
quantities of a satisfactory quality; or
2. Competitive bids reveal the costs of a U.S. product are
significantly higher than the non-domestic product.
USDA notes that when a school food authority purchases a food item
found on the FAR 25.104 Nonavailable articles list, no further
documentation is required. The Nonavailable articles list is a list of
items that have been deemed not available in the U.S. and excepted from
the Buy American statute.\143\ The
[[Page 32028]]
list of items on the FAR 25.104 is non exhaustive. Food products from
the FAR Nonavailable articles list must be included in the calculation
of the non-domestic cap.
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\143\ 41 U.S.C chapter 83 is the Buy American statute that
requires public agencies to procure articles, materials, and
supplies that were mined, produced, or manufactured in the United
States, substantially all from domestic components. Available at:
https://www.acquisition.gov/far/part-25.
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This rulemaking does not define ``significantly higher'' for the
definition exception and instead USDA maintains that the definition of
``significantly higher'' is at the discretion of school food
authorities. Allowing school food authority discretion acknowledges
that school food authorities of various sizes have different resources,
and reflects the appropriate flexibility needed for purchases given the
diverse needs of school food authorities.
USDA acknowledges that some respondents requested such an exemption
list of non-domestic foods to help reduce administrative burden
associated with documenting the two exceptions to the Buy American
requirements. USDA expects that the inclusion of the FAR 25.104
Nonavailable articles will reduce administrative burden. This list is
readily available, reliable, and widely used by the other Federal
agencies. Additionally, the inclusion of this list will improve
procurement practices, support American agriculture, and contribute
toward increased Program integrity.
In response to public comments that suggested a 5 percent cap is
too restrictive under current procurement conditions and that FNS data
is not representative of current procurement practices, USDA will use a
phased approach to gradually reach the proposed 5 percent of total
costs per school year cap on non-domestic food purchases. USDA agrees
with other respondents who were in support of the 5 percent cap,
because it will help support American agriculture and industry, and
will use 5 percent as the final cap on non-domestic food costs. The cap
on non-domestic food costs is for total commercial food costs
purchased. Through a phased-in implementation, USDA intends to help
schools, State agencies, and other stakeholders adjust to the new
requirement and achieve compliance with the Buy American provision.
This phased-in approach will allow schools to gradually adjust to the
new requirement and will allow USDA to continue to collect data on use
of the Buy American exceptions.
In the proposed rule, USDA asked respondents if the proposed 5
percent cap was too restrictive or if a different cap should be used.
Through public comment a 10 percent cap was suggested as an alternative
to the 5 percent cap. Using this suggestion, the phased approach will
be as follows:
Beginning in SY 2025-2026, the non-domestic food cost cap
will be 10 percent.
Beginning in SY 2028-2029, the non-domestic food cost cap
will be 8 percent.
Beginning in SY 2031-2032, the non-domestic food cost cap
will be 5 percent.
School food authorities will be required to maintain documentation
supporting the use of an exception, except when the item is found on
the FAR 25.104 Nonavailable articles list. USDA recognizes that the
addition of the cap may pose issues for some school food authorities as
it requires additional burden to assess the amount of non-domestic
purchases. However, USDA notes that the Buy American requirement is
mandated by the statute as discussed above. It is also an important
aspect of the school meal programs to ``. . . encourage the domestic
consumption of nutritious agricultural commodities and other foods . .
.'' (42 U.S.C. 1751). In response to comments, USDA has carefully
considered how that requirement can be appropriately balanced with when
the purchase of domestic foods is not practicable for schools as well
as the associated administrative burden. There still may be individual
school food authorities that cannot meet the threshold. USDA will work
in concert with State agencies during implementation to provide needed
technical assistance and guidance, and if appropriate, an accommodation
for temporary relief from the requirement as the State agency works
with the school food authority on increasing their domestic purchases.
Compliance with the non-domestic cap will be reviewed by State
agencies in line with 7 CFR 210.18 during the school meal programs
Administrative Review process. Regulations were recently updated
through the Child Nutrition Program Integrity final rule \144\ to
specifically add the Buy American requirements in 7 CFR 210.21(d) and
220.16(d) to the General Areas of Review requirements. The process for
the General Areas during the review is first technical assistance,
followed by corrective action if there are instances of non-compliance.
The review of the Buy American requirement will follow this process
that is already familiar to State agencies and schools and is meant to
simplify administrative burden in response to comments. This process
will allow school food authorities and States to work together to
achieve compliance. As indicated in the proposed rule, the primary
mechanism for collecting information on the Buy American provision is
via the Child Nutrition Operations (CN-OPS) study. USDA notes that the
CN-OPS study showed that the vast majority of exceptions were used for
fruit and technical assistance may center around helping school food
authorities to better monitor their contracts and/or track their non-
domestic expenses; an example of corrective action is to modify future
menus to replace non-domestic items with domestic items. There may be
circumstances outside of the school food authority's control that make
compliance with the Buy American requirements challenging. These could
include nationwide supply chain issues or another pandemic, and USDA
will provide guidance and direction with respect to the Buy American
requirements.
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\144\ Child Nutrition Program Integrity (88 FR 162, August 23,
2023). Available at https://www.govinfo.gov/content/pkg/FR-2023-02-07/pdf/2023-02102.pdf.
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In addition, in response to respondent concerns about burden, USDA
notes that in accordance with a recent Government Accountability Office
audit,\145\ USDA is committed to creating a template for documenting
Buy American exceptions. USDA plans to provide guidance and technical
assistance to support school food authority implementation of the cap
and tracking of expenses.
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\145\ U.S Government Accountability Office. USDA Could Enhance
Implementation of the Buy American Provision. April 2023. Available
at: https://www.gao.gov/assets/gao-23-105884.pdf.
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Lastly in response to comments suggesting that the non-domestic
expenditure cap be based on food categories (e.g., fruit, etc.) already
established by the USDA's Agriculture Marketing Service instead of
total commercial food purchases, USDA has concluded that this would
only add administrative burden for school food authorities. Given the
feedback received in public comments, in this final rule USDA is
clarifying that the cap will apply to total commercial food costs.
Accordingly, this final rule amends 7 CFR 210.21(d)(5) and
220.16(d)(5) to codify the two limited circumstances when school food
authorities may purchase non-domestic foods and to gradually phase in a
cap on when school food authorities may procure non-domestic food.
Additionally, this final rule amends 7 CFR 210.21(d)(8) and
220.16(d)(8) to codify an
[[Page 32029]]
accommodation for schools unable to meet the phased-in cap.
Section 18B: Exception Documentation and Reporting Requirements
Current Requirement
Currently, the primary mechanism for collecting information on the
Buy American provision is via the CN-OPS study. The CN-OPS study is a
multi-year study that provides USDA with current information on various
aspects of school meals programs operations. USDA uses results from
this study to help inform program management practices and policy
development.
School food authorities document each use of an exception to the
Buy American requirements.\146\ However, there is no requirement for
school food authorities to request a waiver from the State agency or
USDA in order to purchase a non-domestic food product.
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\146\ U.S. Department of Agriculture, Compliance with and
Enforcement of the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
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Proposed Rule
USDA proposed to require school food authorities to maintain
documentation supporting use of one of the two limited exceptions and
documentation to demonstrate that no more than 5 percent of total
annual commercial food costs per school year are for non-domestic
foods.
Public Comments
USDA received 24 comments on the proposed Buy American exception
documentation and reporting requirements. Of these, one supported the
proposal, 21 were opposed, and two were mixed. State agencies, trade
agencies, vendors, school food authorities, and individuals submitted
comments on the proposal.
The supportive comment came from a trade agency. This respondent
stated that they agreed with the proposal and that the proposal would
make food distributors more aware of the Buy American requirements.
Many respondents stated that requiring school food authorities to
maintain documentation showing no more than 5 percent of their total
annual commercial food costs were spent on non-domestic foods will add
to administrative burden and stated that school food authorities are
already overwhelmed with documentation requirements. Another respondent
asserted that the documentation requirement would require time-
consuming activities such as reviewing all invoices to determine the
total costs and non-domestic costs and calculating the percentage on a
regular basis, on top of all the other program requirements that must
be monitored.
Respondents stated that they did not see any issues with the
current Buy American requirements and suggested USDA leave the
provision as is. One State agency claimed that the Buy American
provision has not been excessively abused and that adding an additional
layer of recordkeeping to an already overwhelmed staff would create
unnecessary burden. One respondent mentioned that their vendor is
already documenting their use of the Buy American exception, and it
only would add another layer of tracking for them. Another respondent
recommended that USDA leave the provision as is, asserting that schools
understand the importance of limiting non-domestic purchases to special
circumstances.
Some respondents provided alternatives or asked for clarification
about the proposed documentation and tracking requirements. A State
agency noted that while the provision is not difficult to comprehend,
if USDA has specific expectations for how tracking and maintenance of
documentation should occur, those expectations should be established in
the rulemaking. This respondent also suggested that USDA should include
what fiscal action, if any, would result if those expectations are not
met. Another respondent suggested that schools could meet the
documentation and tracking requirements, but it would be difficult.
USDA requested public input on the following questions related to
the proposals for exception documentation and reporting requirements of
the Buy American requirements:
Is the proposal to require school food authorities to
maintain documentation showing that no more than 5 percent of their
total commercial food costs per school year were for non-domestic foods
feasible and is the regulatory language clear enough for school food
authorities and State agencies to implement and follow?
For oversight purposes, USDA is considering requiring
school food authorities to maintain an attestation statement to attest
that any non-domestic foods purchased under the 5 percent cap met one
of the two limited exceptions. Would this approach assist school food
authorities with the burden associated with documentation requirements?
Does it help ensure that any non-domestic food purchase under the 5
percent cap was only a result of utilizing one of the current limited
exceptions that USDA proposes to codify through this rulemaking?
About five respondents provided input on the first question about
the feasibility of the proposal for documentation showing 5 percent cap
for non-domestic food purchases. One respondent stated that the
proposed rule would increase administrative burden by imposing
additional tracking requirements for school food authorities. This
respondent suggested that the documentation requirements would
especially impact large school districts.
Regarding the second question, nine respondents, including State
agencies, trade associations, and individuals provided input on the
possible approach of maintaining an attestation statement that non-
domestic food purchases were less than the 5 percent cap. Respondents
provided mixed feedback on this question. A State agency and a few
individuals expressed that the attestation would help with the
documentation burden. However, some respondents were confused on who
the attestation statement is intended for, and whether school food
authorities or distributors would attest that any non-domestic foods
purchased under the 5 percent cap met one of the two limited
exceptions.
A State agency suggested that the use of an attestation statement,
without backup documentation, is not an effective method of ensuring
compliance. This State agency argued that the attestation statement
would create additional paperwork that would not actually impact school
food authorities' purchasing practices. Lastly, one respondent stated
the attestation seems unnecessary.
Final Rule
This final rule requires school food authorities to maintain
documentation to demonstrate use of one of the two limited exceptions
and institutes a phased-in cap on non-domestic food purchases. In
response to public comments, USDA is exempting products found on the
FAR 25.104 Nonavailable articles list from the documentation
requirement. School food authorities may use this list to deem a
product as not domestically available without further documentation.
Food products that are found on the FAR Nonavailable articles list will
be included in the non-domestic expenditure ceiling calculation. While
this was not included in the proposed rule, USDA requested public
comment on the feasibility of a non-domestic cap, tracking of
purchases, and documentation requirements, and gave notice to the
[[Page 32030]]
public that changes may be incorporated into a final rule based on
public input. Public comments requested that USDA develop a non-
domestic product exception list. Allowing the exception of products on
the FAR 25.104 Nonavailable articles list from the Buy American
documentation requirement addresses these public comments and reduces
administrative burden for schools.
In addition, as stated above, in response to respondent concerns
about burden, USDA notes that in accordance with a recent Government
Accountability Office audit, USDA Could Enhance Implementation of the
Buy American Provision (April 2023),\147\ USDA has committed to
creating a template for documenting Buy American exceptions. USDA will
also explore any technical assistance resources that will better help
school food authorities document non-domestic food purchases.
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\147\ U.S Government Accountability Office. USDA Could Enhance
Implementation of the Buy American Provision. April 2023. Available
at: https://www.gao.gov/assets/gao-23-105884.pdf.
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Accordingly, this final rule amends 7 CFR 210.21(d)(5)(iii) and
220.16(d)(5)(iii) to require school food authorities to maintain
documentation to demonstrate use of one of the two limited exceptions
to the Buy American provision.
Section 18C: Procurement Procedures
Current Requirement
School lunch and breakfast program regulations do not currently
require school food authorities to include any Buy American provisions
in required documented procurement procedures,\148\ solicitations, or
contracts. However, USDA guidance has strongly advised school food
authorities to include safeguards in solicitation and contract language
to ensure Buy American requirements are followed.\149\ Additionally,
school food authorities are required to monitor solicitation and
contract language to ensure that contractors perform in accordance with
the terms, conditions, and specifications of their contracts or
purchase orders (2 CFR 200.318(b)).\150\
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\148\ School food authorities are required to have documented
procurement procedures, as per 2 CFR 200.318(a).
\149\ U.S. Department of Agriculture, Compliance with and
Enforcement of the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
\150\ ``Monitoring is also accomplished by reviewing products
and delivery invoices or receipts to ensure the domestic food that
was solicited and awarded is the food that is received. SFAs also
need to conduct a periodic review of storage facilities, freezers,
refrigerators, dry storage, and warehouses to ensure the products
received are the ones solicited, and awarded, and comply with the
Buy American provision.'' U.S. Department of Agriculture, Compliance
with and Enforcement of the Buy American Provision in the National
School Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
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Proposed Rule
USDA proposed to require school food authorities to include the Buy
American provision in documented procurement procedures, solicitations,
and contracts for foods and food products procured using informal and
formal procurement methods, and in awarded contracts.
Public Comments
USDA received 30 comments on the proposals to include Buy American
requirements in procurement procedures. Of these, 14 supported the
proposal and 16 were mixed. State agencies, school districts, advocacy
groups, trade associations, dietitians, and individuals submitted
comments on the proposal.
Many respondents supported the proposal requiring school food
authorities to include the Buy American provision in documented
procurement procedures, solicitations, and contracts. Some respondents
affirmed that they have these proposed requirements in their
procurement procedures.
Other respondents provided mixed feedback. While these respondents
agreed with the proposed provision, some suggested expanding it. For
example, one respondent suggested that solicitations and contracts
require distributors to attest to the domestic or non-domestic origin
of delivered products. A professional organization stated that all
Federal nutrition assistance programs should adopt the Buy American
provision. Another respondent suggested that USDA bar distributors who
substitute non-domestic products for domestic products without
justification.
Final Rule
USDA agrees with respondents that Buy American provisions should be
included in all procurement procedures. This final rule requires school
food authorities to include the Buy American requirements in documented
procurement procedures, solicitations, and contracts for foods and food
products procured for school breakfast and school lunch programs using
informal and formal procurement methods, and in awarded contracts.
State agencies are required to verify the inclusion of this
language when conducting Procurement oversight and Administrative
Reviews. USDA expects that this requirement will ensure vendors are
aware of expectations at all stages of the procurement process, in
addition to providing contractual protection for school food
authorities if vendors fail to meet Buy American obligations.
Accordingly, this final rule amends 7 CFR 210.21(d)(3) and
220.16(d)(3) to require that Buy American provisions be included in all
procurement procedures.
Section 18D: Definition of ``Substantially''
Current Requirement
The National School Lunch Act (NSLA, 42 U.S.C. 1760(n)(1)(B))
defines a domestic product as ``[a] food product that is processed in
the United States substantially using agricultural commodities that are
produced in the United States.'' The current regulatory language at 7
CFR 210.21(d)(1) and 220.16(d)(1) is identical to the statutory
language. To satisfy the statutory and regulatory requirements, food
products purchased for child nutrition programs must be processed in
the United States.\151\ However, USDA understands that the meaning of
the term ``substantially'' is not clearly defined.
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\151\ See also section 4207(b) of the Agriculture Improvement
Act of 2018, Public Law 115-334 (42 U.S.C. 1760).
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Congressional report language accompanying the original legislation
noted that ``substantially means over 51 percent from American
products.'' \152\ Therefore, USDA has stated in guidance that
``substantially'' means over 51 percent of the final processed product
(by weight or volume) consists of agriculture commodities that were
grown domestically, as determined by the school food authority.\153\
The guidance also states that products ``from Guam, American Samoa,
Virgin Islands, Puerto Rico, and the Northern Mariana Islands are
considered domestic products under this provision as these products are
from the territories of the U.S.''
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\152\ U.S. House of Representatives. Child Nutrition and WIC
Reauthorization Amendments of 1998--House Report 105-633. July 20,
1998. Available at: https://www.govinfo.gov/content/pkg/CRPT-105hrpt633/html/CRPT-105hrpt633.htm.
\153\ U.S. Department of Agriculture, Compliance with and
Enforcement of the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
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Proposed Rule
USDA proposed to codify a definition of the statutory phrase
``substantially using agriculture commodities.'' The
[[Page 32031]]
definition, which USDA would codify at 7 CFR 210.21(d)(1)(ii)(A) and
220.16(d)(1)(ii)(A), was proposed as follows: ``Substantially using
agriculture commodities that are produced in the United States'' means
over 51 percent of a food product must consist of agricultural
commodities that were grown domestically.
Public Comments
USDA received 11 comments on the proposal to codify the definition
of ``substantially using agriculture commodities.'' Of these, six
supported the proposal, one was opposed, and four were mixed. State
agencies, advocacy groups, professional organizations, dietitians, and
individuals submitted comments on the proposal.
Most respondents supported the clarification. Some respondents
stated that the proposed clarification made sense to them, and that the
language provided was welcome. One State agency already requires school
food authorities to use this definition based on its use in USDA
guidance.
One State agency opposed the proposal and stated that the proposed
definition does not meet the intent of other Federal agencies' Buy
American requirements as it allows for up to 49 percent of a food
product to be non-domestic.
Mixed comments were generally supportive but wanted USDA to go
further than the proposed 51 percent threshold. A few respondents
wanted the threshold to be raised higher, potentially up to 80 or 90
percent instead of 51 percent. One respondent wanted USDA to clarify
that domestic water does not count toward the 51 percent. Another
respondent requested that USDA consider that the term ``substantial''
is relative, open to interpretation, and should be further clarified in
order to achieve desired results.
USDA requested public input on the following question related to
codifying the definition of substantially:
Does the proposed definition of ``substantially using
agriculture commodities that are produced in the United States'' meet
the intent of the Buy American requirements? If not, what other
suggestions do stakeholders have for the definition?
Approximately three respondents provided input on this question
regarding the intent of the Buy American requirements. Respondents
generally agreed that the proposed definition is consistent with the
intent of Buy American requirements.
Final Rule
This final rule codifies the proposed definition of
``substantially'' in the Buy American provision at 7 CFR
210.21(d)(1)(ii)(A) and 220.16(d)(1)(ii)(A). Consistent with the
proposed rule, this definition reads as follows: ``Substantially using
agriculture commodities that are produced in the United States'' means
over 51 percent of a food product must consist of agricultural
commodities that were grown domestically.
Although USDA acknowledges that some respondents recommended a
threshold higher than 51 percent, this definition reflects the
Congressional report language and USDA guidance as mentioned above.
USDA agrees with supportive respondents and codifies the proposed
definition for ``substantially'' in this final rule.
Accordingly, this final rule amends 7 CFR 210.21(d)(1)(ii) and
220.16(d)(1)(ii) to codify the definition of ``substantially'' in the
Buy American regulations.
Section 18E: Clarification of Requirements for Harvested Farmed and
Wild Caught Fish
Current Requirement
Current regulations do not include language specific to the
applicability of the Buy American requirements to fish or fish
products. However, in 2019, section 4207 of the Agriculture Improvement
Act of 2018 (Pub. L. 115-334) clarified the Buy American provision
applies to fish harvested ``within the Exclusive Economic Zone of the
United States, as described in Presidential Proclamation 5030 (48 FR
10605; March 10, 1983), or . . . by a United States flagged vessel.''
USDA published Buy American and the Agricultural Improvement Act of
2018 \154\ and explained how to treat harvested fish under the Buy
American requirement. The guidance stated that, ``[i]n order to be
compliant:
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\154\ U.S. Department of Agriculture. Buy American and the
Agriculture Improvement Act of 2018. August 15, 2019. Available at:
https://www.fns.usda.gov/cn/buy-american-and-agriculture-improvement-act.
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Farmed fish must be harvested within the United States or
any territory or possession of the United States.
Wild caught fish must be harvested within the Exclusive
Economic Zone of the United States or by a United States flagged
vessel.''
Prior to the publication of the 2019 guidance, the Buy American
provision applied to fish as it would to any other food.
Proposed Rule
USDA proposed to add language to the regulations to codify how Buy
American applies to fish and fish products in the school lunch and
breakfast programs. The proposed change would be consistent with
current statutory requirements and existing USDA policy guidance. USDA
expects that codifying these existing requirements in regulation will
improve awareness of, and compliance with, program requirements.
Public Comments
USDA received 11 comments on the proposal to codify how Buy
American applies to fish and fish products in the school lunch and
breakfast programs. Of these, four supported the proposed standards and
seven were mixed. State agencies, professional associations, industry
respondents, and dietitians submitted comments on the proposal.
Proponents generally stated the clarification is acceptable to add
to the regulations. Other respondents appreciated the clarification on
what criteria must be met for fish and fish products to meet the Buy
American requirements but were concerned with the challenges of
identifying whether fish were harvested within the Exclusive Economic
Zone and/or whether the vessel used to catch the fish was a ``United
States flagged vessel.''
Final Rule
USDA agrees with respondents that making the proposed change will
improve the understanding of program requirements. This final rule
codifies language in regulations regarding how the Buy American
requirements apply to fish and fish products offered in the school
lunch and breakfast programs. In order to be compliant with Buy
American requirements, under this final rule:
Farmed fish must be harvested within the United States or
any territory or possession of the United States.
Wild caught fish must be harvested within the Exclusive
Economic Zone of the United States or by a United States flagged
vessel.
This change is consistent with current statutory requirements and
existing USDA policy guidance.
Accordingly, this final rule amends 7 CFR 210.21(d)(6) and
220.16(d)(6) to codify language regarding how the Buy American
requirements apply to fish and fish products offered in the school
lunch and breakfast programs.
[[Page 32032]]
Section 19: Geographic Preference
Current Requirement
Section 4302 of the Food, Conservation, and Energy Act of 2008
(Pub. L. 110-246) \155\ amended the National School Lunch Act to direct
the Secretary of Agriculture to encourage institutions operating child
nutrition programs to purchase unprocessed locally grown and locally
raised agricultural products. Effective October 1, 2008, institutions
receiving funds through the child nutrition programs could apply an
optional geographic preference for the procurement of unprocessed
locally grown or locally raised agricultural products. This provision
applies to institutions operating any of the child nutrition programs,
including the NSLP, SMP, SBP, Fresh Fruit and Vegetable Program, SFSP,
and CACFP, as well as to purchases made for these programs by the USDA
Department of Defense Fresh Fruit and Vegetable Program. The provision
also applies to State agencies making purchases on behalf of any of the
aforementioned child nutrition program operators.
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\155\ The Food, Conservation, and Energy Act of 2008 (Pub. L.
110-246). June 18, 2008. Available at: https://www.congress.gov/110/plaws/publ246/PLAW-110publ246.pdf.
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The Geographic Preference Option for the Procurement of Unprocessed
Agricultural Products in Child Nutrition Programs final rule (75 FR
20316, April 4, 2011) \156\ went into effect on May 23, 2011. This
final rule incorporated the geographic preference option in program
regulations and defined the term ``unprocessed locally grown or locally
raised agricultural products,'' which does allow for some minimal
processing, food handling, and preservation techniques as defined, to
facilitate implementation by institutions operating the child nutrition
programs. Language included in that final rule indicates that ``local''
cannot be used as a procurement specification (a written description of
the product or service that the vendor must meet to be considered
responsive and responsible).
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\156\ Geographic Preference Option for the Procurement of
Unprocessed Agricultural Products in Child Nutrition Programs (75 FR
20316, April 4, 2011). Available at: https://www.federalregister.gov/documents/2011/04/22/2011-9843/geographic-preference-option-for-the-procurement-of-unprocessed-agricultural-products-in-child.
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Currently, Federal regulations do not prescribe the way that
geographic preference should be applied, or how much preference can be
given to local products. Federal regulations also do not define
``local'' for the purpose of procuring local foods for use in child
nutrition programs. However, producers located in a specified
geographic area can be provided additional points or credit calculated
during a program operator's evaluation of proposals or bids received in
response to a solicitation.\157\
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\157\ U.S. Department of Agriculture. Procurement Geographic
Preference Q&As. February 1, 2011. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas.
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Proposed Rule
USDA proposed to expand the geographic preference option by
allowing locally grown, raised, or caught as procurement specifications
for unprocessed or minimally processed food items in the child
nutrition programs. This proposal intended to increase the procurement
of local foods by child nutrition program operators and ease
procurement challenges for operators interested in sourcing food from
local producers.
Public Comments
USDA received 389 comments referencing the geographic preference
proposal, including 176 unique comments. Of the total comments, 351
supported the proposal, including 138 unique comments, one was opposed,
and 37 were mixed. State agencies, school nutrition professionals,
advocacy groups, industry respondents, dietitians, elected officials,
and individuals submitted comments. Many respondents mentioned that the
geographic preference proposal would support local producers. Comments
from advocacy groups, State agencies, and an academic institution
indicated that the proposal would allow local producers to be more
competitive and encourage local and smaller-scale producers to submit
bids to sell local foods to child nutrition program operators. A State
agency noted that the proposal would help larger school districts and
cooperatives of smaller school districts coordinate with small-scale
producers to procure locally without relying on the micro-purchase
procurement method. A couple of advocacy groups and an individual
mentioned that the proposal would be economically beneficial for local
producers and communities. Similarly, a professional association
suggested the proposal would stimulate local economies and keep money
in school communities. Advocacy groups, State agencies, a professional
organization, and a dietitian expressed that the proposal would make it
easier for child nutrition program operators to procure local products
for their meal programs and reduce administrative barriers.
Some respondents shared other potential benefits of the proposal,
such as mitigating supply chain disruptions and fostering healthier
communities. A food manufacturer and an advocacy group stated that they
received positive feedback from child nutrition operators about the
proposal. A few advocacy groups also noted that schools that had pre-
existing relationships with local suppliers reported fewer supply chain
disruptions and more reliable product availability during the COVID-19
pandemic. One advocacy group and one individual suggested that the
proposal would support more nutritious school meals and foster
connections between students, local producers, and communities. An
individual stated that local food procurement can also support schools
offering foods that better reflect students' food cultures and
heritage. A group of Federal elected officials stated that the proposal
would improve domestic sourcing, relieve procurement challenges, and
allow more local foods to be incorporated into school meals.
Some respondents provided mixed feedback on the proposal or
provided suggestions. One State agency noted that the proposal would
make it easier for program operators to procure local foods but
recommended that USDA provide guidance on using a definition of
``local'' that does not reduce the number of potential vendors that can
respond to a solicitation to a non-competitive level. This respondent
also recommended guidance to support program operators in conducting
market research and requests for information prior to issuing
solicitations. A State agency affirmed this guidance would help program
operators avoid delays in awarding contracts to qualified local vendors
and prevent program operators from having to reissue solicitations.
Another State agency requested that USDA define the term ``local'' in a
way that clarifies ``local'' should be based on the source of the
agricultural product being procured rather than the bidder's location.
Multiple advocacy groups and an individual recommended that the
proposed geographic preference language be updated to allow for, or
encourage, other procurement specifications to support varied
procurement values such as organic certification, independent animal
welfare certifications, products produced by historically underserved
producers, and more.
Several respondents supported the proposal but raised concerns
about the potential increased costs of local foods. An individual noted
that the cost of procuring local foods could be a barrier for smaller
schools and school districts. Another respondent warned that a lack of
locally produced food in their area,
[[Page 32033]]
and food safety concerns, would hinder local purchasing. An advocacy
group stated that vendors should be required to substantiate that local
production requirements are met and recommended that cost incentives be
provided to support procurement of local food products. A union, school
food service staff member, and an advocacy group agreed that additional
funding is needed to make local procurement viable for many program
operators, especially in certain States and territories. A State agency
and an advocacy group expressed concerns about cost as a barrier to
local procurement among CACFP operators.
USDA requested public input on the following questions related to
the geographic preference expansion proposal:
Do respondents agree that this approach would ease
procurement challenges for child nutrition program operators interested
in sourcing food from local producers?
Do respondents agree that this approach would encourage
smaller-scale producers to submit bids to sell local foods to child
nutrition programs?
Several respondents provided input on the first question, regarding
whether the proposed approach would ease procurement challenges. Many
respondents indicated that expanding school food authorities' options
for geographic preference in procurement would streamline local
purchasing for child nutrition program operators. Advocacy groups, a
trade association, and a State agency noted that the proposal would
remove uncertainties and facilitate clear, predictable procurement
processes. An academic institution stated that not all program
operators are willing and able to apply geographic preference in its
current form due to its complexity. This respondent noted that the
proposal would ease procurement challenges and enable program operators
to spend less time on the administrative aspects of the procurement
process and more time incorporating local foods into program menus. A
professional organization and dietitian expressed that the proposal
would help program operators that operate smaller-scale programs more
easily purchase local products.
In response to the second question, many respondents agreed that
the proposed approach would encourage smaller-scale producers to submit
bids to sell foods to child nutrition programs. Respondents emphasized
that expanding geographic preference options would make local and
small-scale producers more competitive in the bidding process. A couple
of advocacy groups and a State agency asserted that the proposal would
simplify bid writing. One advocacy group suggested that local and
smaller food producers have a hard time competing against larger
producers and distributors, and multiple individuals and advocacy
groups emphasized that the proposal could provide smaller local
producers a ``competitive edge''. An academic institution stated that
the proposal would encourage local producers to submit bids and provide
a steady market for smaller-scale producers.
Final Rule
This final rule codifies, without changes, USDA's proposal to
expand the geographic preference option by allowing child nutrition
program operators to use ``locally grown'', ``locally raised'', or
``locally caught'' as procurement specifications (a written description
of the product or service that the vendor must meet to be considered
responsive and responsible) for unprocessed or minimally processed food
items in the child nutrition programs. The definition of unprocessed,
and the minimal food handling and processing techniques allowed within
that definition, remains unchanged in this final rule (7 CFR
210.21(g)(2), 220.16(f)(2), 225.17(e)(2), and 226.22(c)(1). USDA agrees
with comments that suggested this provision will support increased
procurement of local foods by child nutrition program operators. This
change may encourage smaller-scale producers to submit bids to sell
local foods to child nutrition programs and may ease procurement
challenges for program operators interested in sourcing food locally.
USDA will provide guidance and resources on implementing this final
standard, including but not limited to: updating the geographic
preference section of the Procuring Local Foods for the Child Nutrition
Programs guide,\158\ the Geographic Preference Fact Sheet,\159\ and
Geographic Preference Q&As Part I \160\ and Part II.\161\ These
resources and guidance respond to comments citing the need for program
operators to adopt a definition of ``local'' that will support fair and
open competition in the procurement and bidding process. Updates to
these resources will also help program operators choose appropriate
procurement methods; conduct market research, requests for information,
and producer outreach as needed; and retain appropriate documentation
while implementing this final standard. USDA will continue to allow
State agencies and program operators to adopt their own definition of
``local'' and will not prescribe a Federal definition for the purpose
of procuring local foods for child nutrition programs. Program
operators are encouraged to adopt definitions of ``local'' that best
suit their distinct needs and goals, for example based on their
community's unique geography and climate, the availability of local
producers and manufacturers, and program participants' interest in
local products.
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\158\ U.S. Department of Agriculture. Procuring Local Foods for
the Child Nutrition Programs. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/June22F2SProcurementGuide508.pdf.
\159\ U.S. Department of Agriculture. Geographic Preference Fact
Sheet. Available at: https://www.fns.usda.gov/f2s/geographic-preference.
\160\ U.S. Department of Agriculture. Procurement Geographic
Preference Q&As. February 1, 2011. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas.
\161\ U.S. Department of Agriculture. Procurement Geographic
Preference Q&As: Part II. October 9, 2012. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas-%E2%80%93-
part-ii.
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In response to comments requesting that USDA allow procurement
values beyond local, such as certified organic or certified by an
independent animal welfare program as procurement specifications, USDA
will clarify in updated guidance and resources that these and other
similar production standards are already allowable as specifications in
program operators' procurement solicitations as long as they do not
overly restrict competition. USDA will also continue to provide
training, technical assistance, and, under certain circumstances as
available, financial support, to program operators to help them
mitigate costs and other barriers to local food procurement. Since
January 2021, USDA has provided:
$200 million for States to purchase local foods for
schools through the Local Food for Schools Cooperative Agreement
Program;
Nearly $3.8 billion in Supply Chain Assistance funds for
schools to purchase domestic foods, including $1.3 billion for SY 2023-
2024;
$140 million for Equipment Assistance Grants to help
schools buy kitchen equipment, which can help them process local foods;
and
$94 million to provide children with nutritious, local
foods and agricultural education through expanded Farm to School
engagement.\162\
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\162\ U.S. Department of Agriculture. USDA Support for School
Meals. Available at: https://www.fns.usda.gov/cn/support-schools.
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Accordingly, this final rule amends 7 CFR 210.21(g)(1), 215.14a(e),
[[Page 32034]]
220.16(f)(1), 225.17(e)(1), and 226.22(c)(1), to codify the expansion
of the geographic preference option to allow ``locally grown'',
``locally raised'', or ``locally caught'' as procurement
specifications. Program operators may begin implementing the expanded
geographic preference option in their procurement processes immediately
following this rule's effective date. Program operators remain
responsible for complying with all Federal, State, and local
procurement regulations. NSLP and SBP program operators' compliance
with Federal procurement regulations will continue to be monitored
through State agency oversight of procurement.
Section 20: Miscellaneous Changes
In addition to the major provisions of this rulemaking, USDA is
finalizing a variety of miscellaneous changes to the child nutrition
program regulations. The miscellaneous changes update terminology used
in the regulations, remove outdated information, and correct cross
references. However, as detailed below, this rule does not finalize the
proposed terminology change for the meats/meat alternates component.
Additionally, USDA is finalizing a severability clause in this
rulemaking, as detailed below. In the event any changes made by this
rulemaking are to be held invalid or unenforceable, USDA intends that
the other changes will remain. USDA has further specified what
requirement would replace the invalidated change.
Terminology Change: Protein Sources Component [Not Finalized]
Current child nutrition program regulations use the term ``meats/
meat alternates'' for the meal component that includes beans and peas,
whole eggs, tofu, tempeh, meat, poultry, fish, cheese, yogurt, soy
yogurt, peanut butter and other nut or seed butters, and nuts and
seeds. USDA proposed to change the name of the meats/meat alternates
meal component in the NSLP, SBP, and CACFP regulations to ``protein
sources.'' Under this proposal, all references in 7 CFR parts 210, 220,
and 226 to ``meats/meat alternates'' would change to ``protein
sources.'' The foods within this meal component would remain unchanged.
Public Comments
USDA received 240 comments on this proposed terminology change,
including 131 unique comments. Of these, 57 supported the proposal, all
of which were unique comments, 120 were opposed, including 31 unique
comments, and 63 were mixed, including 43 unique comments. Comments
were submitted by State agencies, school nutrition professionals,
advocacy groups, industry respondents, dietitians, and CACFP sponsoring
organizations.
A dietitian argued that the proposed meal component name of
``protein sources'' sounded ``much more appealing'' than meats/meat
alternates. Another respondent suggested protein sources ``makes more
sense'' as a meal component name compared to meats/meat alternates. An
advocacy group supported the change, maintaining that the term ``meats/
meat alternates'' creates a negative perception of plant-based foods
and is confusing to child nutrition operators, families, and students.
A school district agreed, suggesting the proposed terminology change
would help in communications with families. Similarly, an advocacy
group suggested that ``terminology has changed'' and renaming the
component would improve understanding for school nutrition
professionals and families. A school district noted that children
struggle to understand the current term and maintained that ``protein''
is a universally understood term that better describes the component. A
State agency supported the change, but requested USDA consider the
burden some States may face to revise and reprint resources due to the
change.
Opponents argued that the change would require costly updates to
materials, would require significant retraining, and would make it
difficult to determine which foods are creditable under the protein
source meal component. For example, an industry respondent stated that
renaming the meats/meat alternates component to the protein sources
component is akin to renaming the milk component to the calcium
component, describing the proposal as inaccurate and misleading. An
advocacy group agreed, citing concerns about potential confusion with
protein-labeled food items, or specific products such as protein bars
and protein shakes, which do not credit toward the meats/meat
alternates component (and would not credit toward the protein sources
component, if the change is finalized). This respondent argued that
implementing this change would require significant technical
assistance. Further, the same advocacy group maintained that the
proposed terminology change would create financial burden for
retraining providers and developing new documents and materials. A
State agency provided similar feedback, asserting that the proposed
terminology change would require a ``tremendous'' number of staff hours
to update documents. Another State agency also cited concerns about the
burden of implementing this change and noted that they have not
encountered problems with the current terminology.
Conversely, one school district acknowledged that updating and
reprinting materials may be costly, but still supported the change.
This respondent saw renaming the component as an opportunity to
``update and refresh'' the program with terms participants would
understand. An industry respondent suggested that phasing in the change
over several years would allow industry to plan label inventories and
resource allocation to minimize the anticipated impact of making the
terminology change.
A few respondents offered mixed feedback or alternative
suggestions. One State agency recommended keeping the meal component
names ``simple'' and suggested aligning with MyPlate, which includes
the following food groups: fruits, vegetables, grains, protein foods,
and dairy. However, this respondent noted that, due to the requirement
to offer milk with school meals, the MyPlate dairy group would need to
be replaced with a milk group. An industry respondent suggested that
USDA name the meal component ``proteins'' instead of ``protein
sources'' for brevity. An advocacy group recommended that USDA allow
quinoa to credit toward the protein sources component. Additionally,
this respondent recommended that tofu and soy products and beans, peas,
and lentils be allowed to credit as protein sources even if they are
not visually recognizable. An advocacy group encouraged USDA to provide
``a national list of definitive protein sources'' for child nutrition
program operators. A different advocacy group stated that making this
change in some child nutrition programs, but not SFSP, would create
confusion for operators that participate in multiple programs. A State
agency, school district, and another respondent strongly encouraged
USDA to prioritize making similar changes in SFSP to address
inconsistencies and align terminology across all child nutrition
programs.
Final Rule
In response to public comments, USDA is not finalizing the proposal
to change the name of the meats/meat alternates meal component in the
NSLP, SBP, and CACFP regulations to ``protein sources.'' USDA
appreciates concerns that respondents raised with the proposed
terminology change, including the challenge of updating State and
[[Page 32035]]
local materials to reflect the change. Although these changes could
have been accomplished over time, and State and local operators would
not have been penalized for using the prior terminology, USDA will not
finalize this proposed change given respondent concerns. In addition,
many respondents from the CACFP community recommended that USDA assess
the potential impacts of terminology changes on all child nutrition
program operators prior to making them. USDA will consider this
suggestion when considering potential terminology changes in the
future.
USDA also appreciates comments regarding potential confusion about
foods that would credit toward the ``protein sources'' component.
Although the proposed terminology change would not have changed current
guidelines regarding foods that may credit toward the existing meats/
meat alternates component,163 164 USDA appreciates that use
of the word ``source'' in the proposed component name could have
created confusion for operators. The child nutrition programs use a
food-based menu planning approach, which helps to ensure that children
are offered (and learn to build) meals that include key food groups
recommended by the Dietary Guidelines. In the near term, based on input
from respondents, USDA has determined the meats/meat alternates
component name better reflects the food-based menu planning approach.
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\163\ For information on crediting the meat/meat alternate
component, see the Food Buying Guide for Child Nutrition Programs,
available at: https://www.fns.usda.gov/tn/food-buying-guide-for-child-nutrition-programs.
\164\ Exceptions include certain smoothie ingredients and pasta
products made from vegetable flours. See Question 104: U.S.
Department of Agriculture, Meal Requirements Under the NSLP & SBP:
Q&A for Program Operators Updated to Support the Transitional
Standards Effective July 1, 2022, March 2, 2022. Available at:
https://www.fns.usda.gov/cn/sp052022-questions-answers-program-operators.
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USDA appreciates respondent suggestions for other potential
component names, such as ``proteins'' and ``protein foods.'' USDA also
appreciates respondent feedback on other changes USDA could make to the
meal components, including which meal component certain foods credit
toward. However, for the reasons detailed above, this final rule
maintains the meats/meat alternates component name and does not make
any changes to food crediting guidelines for this component.
Terminology Change: Beans, Peas, and Lentils
The Dietary Guidelines, 2020-2025, changed the terminology for the
``legumes (beans and peas)'' vegetable subgroup to ``beans, peas, and
lentils.'' \165\ The foods within this vegetable subgroup did not
change. USDA proposed to change the name of the ``legumes (beans and
peas)'' vegetable subgroup in the school meal pattern regulations to
align with the Dietary Guidelines. Under this proposal, all references
in 7 CFR parts 210 and 220 to ``legumes (beans and peas)'' would change
to ``beans, peas, and lentils'' for consistency with the terminology
used in the Dietary Guidelines. The foods within this vegetable
subgroup and the related requirements would remain unchanged. USDA also
proposed to change references to ``beans and peas (legumes)'' in 7 CFR
part 226 to ``beans, peas, and lentils''.
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\165\ See ``About Beans, Peas, and Lentils,'' page 31. U.S.
Department of Agriculture and U.S. Department of Health and Human
Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://www.dietaryguidelines.gov/.
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Public Comments
USDA received 134 comments on this proposed terminology change,
including 45 unique comments. Comments were submitted by State
agencies, advocacy groups, and individuals. An advocacy group stated
that the proposed change ``brings the school nutrition language into
alignment with the language used in the Dietary Guidelines.'' A State
agency agreed, suggesting that this change would improve ``consistency
with terminology used in the Dietary Guidelines.'' A few other
respondents, including advocacy groups and individuals, expressed
support for the terminology change.
While fewer respondents opposed the ``beans, peas, and lentils''
terminology change compared to the ``protein sources'' terminology
change, those who did gave similar reasons for their opposition. For
example, a State agency opposed the change, suggesting that terminology
changes would require all materials that use the terms to be redone and
redistributed which would be costly and time consuming. A few
respondents, including a State agency, did not oppose the change, but
suggested adding ``dry'' in ``beans, peas, and lentils'' to avoid
confusing vegetables in this subgroup with fresh green beans and peas,
which count toward the ``other'' vegetable subgroup and the starchy
vegetable subgroup, respectively.
Final Rule
USDA is finalizing the proposal to change the name of the ``legumes
(beans and peas)'' vegetable subgroup in the school meal pattern
regulations and to change references to ``beans and peas (legumes)'' in
CACFP regulations. This final rule will instead refer to ``beans, peas,
and lentils,'' consistent with the terminology used in the Dietary
Guidelines. Additionally, USDA is extending this change to SFSP based
on public input encouraging consistent terminology across child
nutrition programs.
USDA acknowledges that some respondents recommended including the
word ``dry'' before the NSLP vegetable subgroup name ``beans, peas, and
lentils,'' to differentiate from green peas and green beans. However,
USDA has opted to maintain the proposed terminology change without
modification. As noted, the vegetable subgroup name in the Dietary
Guidelines is ``beans, peas, and lentils.'' Therefore, the terminology
for the NSLP vegetable subgroup name finalized in this rule aligns with
the Dietary Guidelines. To clarify, the vegetables that count toward
this subgroup in the school meal programs have not changed; only the
name of the subgroup has changed. Green peas will continue to count
toward the starchy vegetable subgroup, and fresh green beans will
continue to count toward the ``other'' vegetable subgroup.\166\
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\166\ According to the Dietary Guidelines, ``Green peas and
green (string) beans are not counted in the beans, peas, and lentils
subgroup because the nutrient content of these vegetables is more
similar to vegetables in other subgroups.'' The Dietary Guidelines
consider green peas to be a starchy vegetable, and green beans to be
part of the ``other'' vegetable subgroup. NSLP regulations for the
vegetable subgroups reflect the Dietary Guidelines. See ``About
Beans, Peas, and Lentils,'' page 31. U.S. Department of Agriculture
and U.S. Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
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While USDA encourages stakeholders to update materials to reflect
this change, USDA anticipates a transition period and does not expect
these updates to happen immediately. State and local operators will not
be penalized for using the prior terminology.
Accordingly, this final rule amends 7 CFR parts 210, 220, 225, and
226 to change references to ``legumes (beans and peas)'' and ``beans
and peas (legumes)'' to ``beans, peas, and lentils.'' Child nutrition
program operators are not required to change menus or
[[Page 32036]]
operations as a result of this terminology change, but are encouraged
to proactively transition to the new terminology.
Technical Corrections
This final rule makes several additional technical corrections to
the regulations, which are outlined by regulatory section below. These
proposed technical corrections would not make substantive changes to
the child nutrition programs. Instead, the proposed corrections, which
are reflected in the proposed amendatory language, generally fall into
the following categories:
Removing outdated terminology or updating terminology and
definitions for consistency across regulations.
Removing outdated implementation dates.
Removing requirements that are no longer in effect.
Reordering the school meal pattern meal component
paragraphs to reflect the order used in the meal pattern tables.
Revising meal pattern tables to improve usability.
Correcting erroneous cross-references.
Please see Note about Amendatory Instructions, below, for
information about how these changes are addressed in the amendatory
instructions.
7 CFR part 210: National School Lunch Program
7 CFR 210.2 Definitions
Remove definition of CND, which is no longer in use.
Replace the definition of Food component with the
definition of Meal component.
Redesignate paragraphs to use numbers instead of letters
(e.g., (1) and (2) instead of (a) and (b)) in the definitions of
Reduced price lunch, School, State agency, and State educational
agency.
Remove outdated language in the definition of Residential
child care institution.
Revise the definition of Yogurt to reflect changes to the
FDA standard of identity of yogurt.
7 CFR 210.3 Administration
7 CFR 210.3(a): Remove sentence referring to ``the CND,''
a term no longer in use.
7 CFR 210.4 Cash and Donated Food Assistance to States
7 CFR 210.4(b)(3): Remove incorrect cross-reference to
afterschool snacks section of regulations (Sec. 210.10(n)) and add the
correct cross-reference (Sec. 210.10(o)).
7 CFR 210.7 Reimbursement for School Food Authorities
7 CFR 210.7(d): Remove erroneous cross-reference to Sec.
220.23, which is no longer in effect.
7 CFR 210.7(e): Correct erroneous cross-reference to
afterschool snacks section of regulation (from Sec. 210.10(n)(1) to
Sec. 210.10(o)(1)).
7 CFR 210.9 Agreement With State Agency
7 CFR 210.9(b)(21): Remove outdated implementation date.
7 CFR 210.9(c): Remove incorrect cross-reference to
afterschool snacks section of regulations (Sec. 210.10(n)(1)) and add
the correct cross-reference (Sec. 210.10(o)(1)).
7 CFR 210.10 Meal Requirements for Lunches and Requirements for
Afterschool Snacks
Change all references from ``food components'' to ``meal
components''.
7 CFR 210.10(c): Add minimum creditable amount for all
meal components in meal pattern table footnotes.
In meal pattern tables, add or revise titles for clarity.
In meal pattern tables, change footnotes to use numbers
instead of letters and combine related footnotes to improve
readability.
7 CFR 210.11 Competitive Food Service and Standards
7 CFR 210.11(m) (redesignated to paragraph (l)): Combine
fluid milk and milk alternatives paragraphs and cross-reference Sec.
210.10(d)(1) and (2) instead of repeating milk standards in Sec.
210.11.
7 CFR 210.11(m) (redesignated to paragraph (l)): Adjust
punctuation to improve readability.
7 CFR 210.11(i) and (n): Remove outdated implementation
dates.
7 CFR 210.12 Student, Parent, and Community Involvement
7 CFR 210.12(e): Correct erroneous cross-reference to
local school wellness policies by replacing Sec. 210.30(d) with Sec.
210.31(d).
7 CFR 210.14 Resource Management
7 CFR 210.14(e): Remove outdated implementation date.
7 CFR 210.14(e)(5)(ii)(D): Remove outdated implementation
date.
7 CFR 210.14(e)(6)(iii): Remove outdated language.
7 CFR 210.14(f): Remove outdated implementation date.
7 CFR 210.15 Reporting and Recordkeeping
7 CFR 210.15(b)(9): Correct erroneous cross-reference to
local school wellness policies by replacing Sec. 210.30(f) with Sec.
210.31(f).
7 CFR 210.18 Administrative Reviews
7 CFR 210.18(h)(2)(x): Correct erroneous cross-reference
to local school wellness policies by replacing Sec. 210.30 with Sec.
210.31.
7 CFR 210.19 Additional Responsibilities
7 CFR 210.19(f): Remove outdated implementation date.
7 CFR 210.20 Reporting and Recordkeeping
7 CFR 210.20(a)(6) and (7): Remove requirements that are
no longer in effect.
7 CFR 210.20(b)(10): Remove requirement that is no longer
in effect.
7 CFR 210.29 Management Evaluations
7 CFR 210.29(d)(3): Remove incorrect physical address for
the Food and Nutrition Service.
7 CFR Part 220: School Breakfast Program
7 CFR 220.2 Definitions
Remove erroneous cross-references to Sec. 220.23, which
is no longer in effect.
Remove definitions of CND, OA, and OI, which are no longer
in use.
Revise definitions of Department, Distributing agency,
Fiscal year, FNS, FNSRO, Free breakfast, Reduced price breakfast,
Reimbursement, School Food Authority, and State agency for consistency
with definitions in 7 CFR 210.2.
Remove the definition of Food component and instead add
the definition of Meal component.
Remove the definitions of Menu item and Nutrient Standard
Menu Planning/Assisted Nutrient Standard Menu Planning, which are no
longer in use under food-based menu planning.
Remove the second definition of Non-profit, which is
duplicative and outdated.
Remove outdated language in the definition of Residential
child care institution.
Revise the definition of Yogurt to reflect changes to the
FDA standard of identity of yogurt.
7 CFR 220.3 Administration
7 CFR 220.3(a): Remove sentence referring to ``the CND,''
a term no longer in use.
[[Page 32037]]
7 CFR 220.7 Requirements for Participation
7 CFR 220.7(e)(2), (4), (5), (9), and (13): Revise
language for clarity and remove outdated references.
7 CFR 220.7(h): Correct erroneous cross-reference to local
school wellness policies by replacing Sec. 210.30 with Sec. 210.31.
7 CFR 220.8 Meal Requirements for Breakfasts
Change all references from ``food components'' to ``meal
components''.
7 CFR 220.8(a)(2): Change reference from ``reimbursable
lunch'' to ``reimbursable breakfast''.
7 CFR 210.10(c): Add minimum creditable amount for all
meal components in meal pattern table footnotes.
In meal pattern tables, add or revise titles for clarity.
In meal pattern tables, change footnotes to use numbers
instead of letters and combine related footnotes to improve
readability.
7 CFR 210.10(c)(2)(i)(A): Remove reference to crediting
enriched macaroni at lunch.
7 CFR 210.10(c)(2)(v): Add fluid milk as a listed meal
component in paragraph (c)(2).
7 CFR 220.13 Special Responsibilities of State Agencies
7 CFR 220.13(b)(3): Remove requirements that are no longer
in effect.
7 CFR 220.13(c): Remove outdated references to ``OI''.
7 CFR 220.13(f)(3): Remove erroneous cross-reference to
Sec. 220.23, which is no longer in effect.
7 CFR 220.13(l): Remove requirement that is no longer in
effect.
7 CFR 220.14 Claims Against School Food Authorities
Remove references to the term ``CND'', which is no longer
in use.
7 CFR Part 225: Summer Food Service Program
7 CFR 225.16 Meal Service Requirements
Change all references from ``food components'' to ``meal
components''.
7 CFR part 226: Child and Adult Care Food Program
7 CFR 226.2 Definitions