[Federal Register Volume 81, Number 146 (Friday, July 29, 2016)]
[Rules and Regulations]
[Pages 50132-50151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17227]
[[Page 50131]]
Vol. 81
Friday,
No. 146
July 29, 2016
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.
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; Final Rule
Federal Register / Vol. 81 , No. 146 / Friday, July 29, 2016 / Rules
and Regulations
[[Page 50132]]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 220
[FNS-2011-0019]
RIN 0584-AE09
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
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule and interim final rule.
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SUMMARY: This rule adopts as final, with some modifications, the
National School Lunch Program and School Breakfast Program regulations
set forth in the interim final rule published in the Federal Register
on June 28, 2013. The requirements addressed in this rule conform to
the provisions in the Healthy, Hunger-Free Kids Act of 2010 regarding
nutrition standards for all foods sold in schools, other than food sold
under the lunch and breakfast programs. Most provisions of this final
rule were implemented on July 1, 2014, a full year subsequent to
publication of the interim final rule. This was in compliance with
section 208 of the Healthy, Hunger-Free Kids Act of 2010, which
required that State and local educational agencies have at least one
full school year from the date of publication of the interim final rule
to implement the competitive food provisions.
Based on comments received on the interim final rule and
implementation experience, this final rule makes a few modifications to
the nutrition standards for all foods sold in schools implemented on
July 1, 2014. In addition, this final rule codifies specific policy
guidance issued after publication of the interim rule. Finally, this
rule retains the provision related to the standard for total fat as
interim and requests further comment on this single standard.
DATES: Effective date: This final rule is effective September 27, 2016.
Comment date: Comments on the interim final rule total fat standard
must be submitted by September 27, 2016.
Compliance dates: Except as noted in this final rule, compliance
with the nutrition standards and other provisions of the interim final
rule began on July 1, 2014. The potable water provision was effective
on October 1, 2010, and compliance with that provision was required no
later than August 27, 2013.
ADDRESSES: To be considered, written comments must be submitted by one
of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov, select ``Food and Nutrition Service'' from the
agency drop-down menu, and click ``Submit''. In the Docket ID column of
the search results select ``FNS-2011-0019'' to submit or view public
comments and to view supporting and related materials available
electronically. Information on using Regulations.gov, including
instructions for accessing documents, submitting comments, and viewing
the docket after the close of the comment period is available through
the site's ``User Tips'' link.
By Mail: Send comments to Tina Namian, Branch Chief,
School Meals Branch, Policy and Program Development Division, Child
Nutrition Programs, Food and Nutrition Service, 3101 Park Center Drive,
Alexandria, Virginia 22302. Mailed comments must be postmarked on or
before the comment deadline identified in the DATES section of this
preamble to be assured of consideration.
All submissions received in response to the interim final provision
on total fat will be included in the record and will be available to
the public. Please be advised that the substance of the comments and
the identity of the individuals or entities submitting comments will be
subject to public disclosure. FNS also will make the comments publicly
available by posting a copy of all comments on http://regulations.gov.
FOR FURTHER INFORMATION CONTACT: Tina Namian, Branch Chief, School
Meals Branch, Policy and Program Development Division, Child Nutrition
Programs, Food and Nutrition Service, 3101 Park Center Drive,
Alexandria, Virginia 22302, or by telephone at (703) 305-2590.
SUPPLEMENTARY INFORMATION:
I. Overview
This rule affirms, with some modifications, the interim final rule
(IFR) that implemented amendments made by sections 203 and 208 of
Public Law 111-296, the Healthy, Hunger-Free Kids Act of 2010 (HHFKA),
to the Child Nutrition Act of 1966 (CNA) and the Richard B. Russell
National School Lunch Act (NSLA) for schools that participate in the
School Breakfast Program (SBP) and the National School Lunch Program
(NSLP). The final rule addresses public comments submitted in response
to the IFR and makes some adjustments that improve clarity of the
provisions set forth in the IFR. In response to comments and
implementation experience as shared by operators, the final rule also
incorporates and codifies some policy guidance to allow additional
foods and combinations to meet the nutrition standards. Specifically,
the regulation finalizes the IFR, with the following changes:
Modifies definitions as follows:
Adds the term ``main dish'' to the definition of
``Entr[eacute]e'' for clarification;
Adds the term ``grain-only'' breakfast entr[eacute]es to
the definition of ``Entr[eacute]e'' to codify policy guidance issued
during implementation; and
Adds a definition of ``Paired exempt foods'' to codify
policy guidance issued during implementation.
Expands exemptions as follows:
Adds a specific exemption to the total fat and saturated
fat standard for eggs; and
Modifies the exemption to the General Standards for canned
vegetables to exempt low sodium and no-salt added vegetables with no
added fat to more closely align with USDA Foods standards and industry
production standards.
Retains as interim with a request for comment:
The nutrient standard for total fat.
Makes a technical change as follows:
In Sec. 210.11(i) and Sec. 210.11(j), a revision is made
to clarify that the calorie and sodium limits apply to all competitive
food items available on school campus and not just to those sold a la
carte during the meal service.
Impact of the 2015-2020 Dietary Guidelines for Americans
The original development of the standards contained in this
regulation was informed by the 2010 Dietary Guidelines for Americans
(DGA), which were published in December 2010. Based on a thorough
review of the recently published 2015-2020 DGA, USDA has determined
that the standards contained in this regulation are also consistent
with the new DGA. Key recommendations from the 2010 DGA are maintained
in the 2015-2020 DGA, and so continue to be in line with the standards
included in this rule. The 2015-2020 DGA contain a specific additional
recommendation on limiting added sugar. A discussion of this
recommendation and its relationship to the standards included in this
rule is contained in this preamble in the discussion of the standard
for sugar.
II. Background
The NSLP served an average of 30.4 million children per day in
Fiscal Year
[[Page 50133]]
(FY) 2014. In that same FY, the SBP served an average of 13.6 million
children daily.
The NSLA (42 U.S.C. 1751 et seq.) and the CNA (42 U.S.C. 1771 et
seq.) require the Secretary to establish nutrition standards for meals
served under the NSLP and SBP, respectively. Prior to the enactment of
the HHFKA, section 10 of the CNA limited the Secretary's authority to
regulate competitive foods, i.e., foods sold in competition with the
school lunch and breakfast programs, to those foods sold in the food
service area during meal periods. The Secretary did not have authority
to establish regulatory requirements for food sold in other areas of
the school campus or at other times in the school day.
The HHFKA, enacted December 13, 2010, directed the Secretary to
promulgate regulations to establish science-based nutrition standards
for foods sold in schools other than those foods provided under the
NSLP and SBP. Section 208 of the HHFKA amended section 10 of the CNA
(42 U.S.C. 1779) to require that such nutrition standards apply to all
foods sold:
Outside the school meal programs;
On the school campus; and
At any time during the school day.
Section 208 requires that such standards be consistent with the
most recent DGA and that the Secretary consider authoritative
scientific recommendations for nutrition standards; existing school
nutrition standards, including voluntary standards for beverages and
snack foods; current State and local standards; the practical
application of the nutrition standards; and special exemptions for
infrequent school-sponsored fundraisers.
In addition, the amendments made by section 203 of the HHFKA
amended section 9(a) of the NSLA (42 U.S.C. 1758(a)) to require that
schools participating in the NSLP make potable water available to
children at no charge in the place where meals are served during the
meal service. This is a nondiscretionary requirement of the HHFKA that
became effective October 1, 2010, and was required to be implemented by
August 27, 2013.
The Department published a proposed rule in the Federal Register on
February 8, 2013 (78 FR 9530), titled 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. This
rule proposed nutrition standards for foods offered for sale to
students outside of the NSLP and SBP, including foods sold [agrave] la
carte and in school stores and vending machines. The standards were
designed to complement recent improvements in school meals, and to help
promote diets that contribute to students' long term health and well-
being. The proposed rule also would have required schools participating
in the NSLP and afterschool snack service under NSLP to make water
available to children at no charge during the lunch and afterschool
snack service. USDA received a total of 247,871 public comments to the
proposed rule during the 60-day comment period from February 8, 2013
through April 9, 2013. This total included several single comment
letters with thousands of identical comments. Approximately 245,665 of
these were form letters, nearly all of which were related to 104
different mass mail campaigns. The remaining comments--over 2,200--were
unique comments rather than form letters. Comments represented a
diversity of interests, including advocacy organizations, industry and
trade associations, farm and other industry groups, schools, school
boards and school nutrition and education associations, State
departments of education, consumer groups and others. USDA appreciated
the public interest in the proposed rule and carefully considered all
comments in drafting the IFR.
As referenced earlier in this preamble, the Department published an
IFR in the Federal Register on June 28, 2013, (78 FR 39068) titled
National School Lunch and School Breakfast Program: Nutrition Standards
for All Foods Sold in School as Required by the Healthy, Hunger-Free
Kids Act of 2010, and all provisions were required to be implemented on
July 1, 2014, a full year subsequent to publication of the IFR
standards. This was in compliance with section 208 of the HHFKA
requirement that State and local educational agencies have at least one
full school year from the date of publication of the IFR to implement
the competitive food provisions.
III. General Summary of Comments Received on the Interim Rule
A total of 520 public comments on the IFR were received during the
120-day comment period that ended on October 28, 2013. Fifty-three of
these comments were copies of form letters related to nine different
mass mail campaigns. The remaining comments included 460 letters with
unique content rather than form letters. A total of 386 of these
comments were substantive. Comments represented a diversity of
interests, including advocacy organizations; health care organizations;
industry and trade associations; farm and industry groups; schools,
school boards and school nutrition and education associations; State
departments of education; consumer groups; and others. A relatively
modest number of comments were received on the IFR, many of which
reiterated previous comments received during the proposed rule comment
period and which had been taken into consideration as the IFR was
drafted. This final rule, therefore, incorporates relatively minor
modifications to the provisions of the IFR.
In general, there was support for the IFR. Stakeholders were very
supportive of the IFR, and some had specific comments and suggestions
on several provisions included in the rule. Of the 520 comments, 103
were in full support of the rule. Fifty commenters objected to
implementation of this rule, indicating that no standards for
competitive food should be implemented in schools. The remaining
commenters included suggested revisions to various aspects of the rule
and its implementation.
Commenters recommended expanding exemptions to several of the
standards for specific food items, such as side items served in the
NSLP and the SBP, while others recommended continuing the initial
sodium standard for snack foods. Several commenters recommended that
the General Standard which allowed foods meeting the 10 percent Daily
Value for nutrients of public health concern be made permanent rather
than eliminated on July 1, 2016, as was included in the IFR. More
detailed discussions of these specific issues are included in this
preamble.
Twenty-five comments expressed general support for the IFR, many
citing concerns for childhood obesity and stating that competitive food
standards will reinforce healthy eating habits in school and outside of
school. In addition to their overall support of the rule, an advocacy
organization and an individual commenter stated that lower income
students may not have the opportunity to experience healthier food
items outside of the school. These commenters asserted that this rule
will introduce these students to healthier foods and possibly influence
home food consumption patterns and protect the nutritional needs of
children. One trade association applauded the Department's
encouragement of dairy foods consumption throughout the rule and urged
that these changes be retained. One individual commenter remarked that
the inclusion of recordkeeping and compliance requirements,
consideration of special situations, and
[[Page 50134]]
implementation information makes this rule even more complete.
Although in support of the IFR in general, two commenters asserted
that there are other factors that cause obesity in our society besides
foods available in schools. For example, these commenters suggested
that reducing physical education class in school has led to increased
sedentary lifestyles of children. Commenters also noted the importance
of supplementing nutrition requirements for foods available in schools
with nutrition and health education in schools.
Some of those commenters concerned about the competitive food
standards established in the IFR asserted that foods sold in schools
are not the cause of childhood obesity and that the rule will result in
significant revenue losses for school food service, citing financial
strain on schools caused by the recently revised NSLP standards. Most
of these comments were opposed to the rule in its entirety and did not
comment on specific provisions of the IFR.
The Department acknowledges that there are many factors
contributing to childhood obesity and supports the idea that developing
a healthy nutrition environment in school plays an important role in
combatting childhood obesity, as well. This rule reinforces the
development of a healthy school environment. In addition, the
Department recognizes that nutrition and health education as well as
physical activity are important to the development of a healthy
lifestyle and encourages schools to develop local school wellness
standards that incorporate these items into the school day.
In addition to public comments submitted during the formal comment
period, USDA continued to respond to feedback and questions from
program operators and other impacted parties throughout the
implementation year in order to provide clarification, develop policy
guidance, and inform us as the final rule was being developed.
The description and analysis of comments in this preamble focus on
general comment themes, most frequent comments, and those that
influenced revisions to this final rule. Provisions not addressed in
the preamble to this final rule did not receive significant or
substantial public comments and remain unchanged. The reasons
supporting the provisions of the proposed and interim regulations were
carefully examined in light of the comments received to determine the
continued applicability of the justifications. Those reasons,
enunciated in the proposed and interim regulations, should be regarded
as the basis for this final rule unless otherwise stated, or unless
inconsistent with this final rule or this preamble. A thorough
understanding of the rationale for various provisions of this final
rule may require reference to the preamble of both the proposed rule
published on February 8, 2013 (78 FR 9530) and the interim final rule
published on June 28, 2013 (78 FR 39068).
To view all public comments on the IFR, go to www.regulations.gov
and search for public submissions under document number FNS-2011-0019-
4716. Once the search results populate, click on the blue text titled,
``Open Docket Folder.'' USDA appreciates the public comments and shared
operator experiences as they have been essential in developing a final
rule that is expected to improve the quality of all foods sold outside
of the NSLP and SBP.
IV. Summary of the Final Rule Competitive Food Standards
The competitive foods and beverages standards included in the June
28, 2013, IFR were implemented on July 1, 2014, and are retained in
this final rule with some modifications, as noted in the following
chart in bold letters. The modifications or changes made in this final
rule are discussed next in the preamble.
Summary of Final Rule Competitive Food Standards
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Exemptions to the
Food/nutrient Standard standard
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General Standard for To be allowable, a Fresh and
Competitive Food. competitive FOOD frozen fruits and
item must: vegetables with no
(1) Meet all of the added ingredients
proposed except water are
competitive food exempt from all
nutrient standards; nutrient standards.
and. Canned
(2) Be a grain fruits with no
product that added ingredients
contains 50% or except water, which
more whole grains are packed in 100%
by weight or have juice, extra light
whole grains as the syrup, or light
first ingredient; syrup are exempt
or. from all nutrient
(3) Have as the standards.
first ingredient Low sodium/
one of the non- No salt added
grain main food canned vegetables
groups: fruits, with no added fats
vegetables, dairy, are exempt from all
or protein foods nutrient standards.
(meat, beans,
poultry, seafood,
eggs, nuts, seeds,
etc.); or.
(4) Be a combination
food that contains
at least \1/4\ cup
fruit and/or
vegetable..
(5) If water is the
first ingredient,
the second
ingredient must be
one of the above..
NSLP/SBP Entr[eacute]e Items Any entr[eacute]e
Sold [agrave] la Carte. item offered as
part of the lunch
program or the
breakfast program
is exempt from all
competitive food
standards if it is
served as a
competitive food on
the day of service
or the day after
service in the
lunch or breakfast
program.
Grain Items................. Acceptable grain
items must include
50% or more whole
grains by weight,
or have whole
grains as the first
ingredient.
Total Fats \1\.............. Acceptable food Reduced fat
items must have cheese (including
<=35% calories from part-skim
total fat as served. mozzarella) is
exempt from the
total fat standard.
Nuts and
seeds and nut/seed
butters are exempt
from the total fat
standard.
Products
consisting of only
dried fruit with
nuts and/or seeds
with no added
nutritive
sweeteners or fats
are exempt from the
total fat standard.
Seafood
with no added fat
is exempt from the
total fat standard.
[[Page 50135]]
Whole eggs
with no added fat
are exempt from the
total fat standard.
Combination products
other than paired
exempt foods are
not exempt and must
meet all the
nutrient standards.
Saturated Fats.............. Acceptable food Reduced fat
items must have cheese (including
<10% calories from part-skim
saturated fat as mozzarella) is
served. exempt from the
saturated fat
standard.
Nuts and
seeds and nut/seed
butters are exempt
from the saturated
fat standard.
Products
consisting of only
dried fruit with
nuts and/or seeds
with no added
nutritive
sweeteners or fats
are exempt from the
saturated fat
standard.
Whole eggs
with no added fat
are exempt from the
saturated fat
standard.
Combination products
other than paired
exempt foods are
not exempt and must
meet all the
nutrient standards.
Trans Fats.................. Zero grams of trans
fat as served
(<=0.5 g per
portion).
Sugar....................... Acceptable food Dried whole
items must have fruits or
<=35% of weight vegetables; dried
from total sugar as whole fruit or
served. vegetable pieces;
and dehydrated
fruits or
vegetables with no
added nutritive
sweeteners are
exempt from the
sugar standard.
Dried whole
fruits, or pieces,
with nutritive
sweeteners that are
required for
processing and/or
palatability
purposes (i.e.,
cranberries, tart
cherries, or
blueberries) are
exempt from the
sugar standard.
Products
consisting of only
dried fruit with
nuts and/or seeds
with no added
nutritive
sweeteners or fats
are exempt from the
sugar standard.
Sodium...................... Snack items and side
dishes: <=200 mg
sodium per item as
served, including
any added
accompaniments.
Entr[eacute]e items:
<=480 mg sodium per
item as served,
including any added
accompaniments.
Calories.................... Snack items and side
dishes: <=200
calories per item
as served,
including any added
accompaniments.
Entr[eacute]e items:
<=350 calories per
item as served
including any added
accompaniments.
Accompaniments.............. Use of
accompaniments is
limited when
competitive food is
sold to students in
school. The
accompaniment must
be included in the
nutrient profile as
part of the food
item served and
meet all proposed
standards.
Caffeine.................... Elementary and
Middle School:
foods and beverages
must be caffeine-
free with the
exception of trace
amounts of
naturally occurring
caffeine substances.
High School: foods
and beverages may
contain caffeine.
Beverages................... Elementary School
Plain water
or plain carbonated
water (no size
limit);
Low fat
milk, unflavored
(<=8 fl oz);
Non-fat
milk, flavored or
unflavored (<=8 fl
oz), including
nutritionally
equivalent milk
alternatives as
permitted by the
school meal
requirements;
100% fruit/
vegetable juice
(<=8 fl oz); and.
100% fruit/
vegetable juice
diluted with water
(with or without
carbonation), and
no added sweeteners
(<=8 fl oz).
Middle School
Plain water
or plain carbonated
water (no size
limit);
Low-fat
milk, unflavored
(<=12 fl oz);
Non-fat
milk, flavored or
unflavored (<=12 fl
oz), including
nutritionally
equivalent milk
alternatives as
permitted by the
school meal
requirements;
100% fruit/
vegetable juice
(<=12 fl oz); and
100% fruit/
vegetable juice
diluted with water
(with or without
carbonation), and
no added sweeteners
(<=12 fl oz).
High School
Plain water
or plain carbonated
water (no size
limit);
Low-fat
milk, unflavored
(<=12 fl oz);
[[Page 50136]]
Non-fat
milk, flavored or
unflavored (<=12 fl
oz), including
nutritionally
equivalent milk
alternatives as
permitted by the
school meal
requirements;
100% fruit/
vegetable juice
(<=12 fl oz);
100% fruit/
vegetable juice
diluted with water
(with or without
carbonation), and
no added sweeteners
(<=12 fl oz);
Other
flavored and/or
carbonated
beverages (<=20 fl
oz) that are
labeled to contain
<5 calories per 8
fl oz, or <=10
calories per 20 fl
oz; and
Other
flavored and/or
carbonated
beverages (<=12 fl
oz) that are
labeled to contain
<=40 calories per 8
fl oz, or <=60
calories per 12 fl
oz.
Sugar-free Chewing Gum...... Sugar-free chewing
gum is exempt from
all of the
competitive food
standards and may
be sold to students
at the discretion
of the local
educational agency.
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\1\ Please note that the Total Fat nutrient standard is being
maintained as an interim final standard. The Department is
requesting additional comments on this standard in this rulemaking.
Please see further discussion in Part V of this preamble.
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V. Discussion of Comments and Changes to the Final Rule
Definitions
The amendments made by the HHFKA stipulate that the nutrition
standards for competitive food apply to all foods and beverages sold:
(a) Outside the school meals programs; (b) on the school campus; and
(c) at any time during the school day. The IFR at Sec. 210.11(a)
included definitions of Competitive food, School day, and School
campus.
Competitive food means all food and beverages other than meals
reimbursed under programs authorized by the NSLA and the CNA available
for sale to students on the School campus during the School day.
Fifteen comments were received on this definition. Several commenters,
including advocacy organizations and professional associations,
generally agreed with the definition for ``competitive food.'' More
specifically, these commenters supported that the competitive food
standards will apply to all foods and beverages sold across the school
campus and throughout the school day (until at least 30 minutes after
school ends). An advocacy organization and an individual commenter
suggested that FNS substitute the word ``served'' for the term
``available for sale'' in the definition of ``competitive food''
because doing so would send a more consistent message to students and
families by assuring that all foods brought into the school were
subject to the same standards. The Department wishes to point out that
the amendments made by the HHFKA do not provide the Secretary with
jurisdiction over foods brought from outside of the school. Therefore,
the definition for ``competitive food'' is unchanged in this rule.
School day means, for the purpose of competitive food standards
implementation, the period from the midnight before, to 30 minutes
after the end of the official school day. Thirty comments were received
on this definition. Nine of those comments mentioned the applicability
of the IFR to non-school hours.
Some commenters, including a trade association, a food
manufacturer, and a school district, expressed support for the IFR
definition for ``school day.'' However, more commenters disagreed with
the IFR definition of ``school day'' primarily requesting that the
definition should be expanded to include all times during which
students are on campus and engaged in school-sponsored activities or
all after-school hours in order to achieve the objective of promoting
healthy food choices for children. Some commented that imposing
competitive food standards during the school day but eliminating them
after school sends a mixed message with regard to the need to eat
healthy foods at all times.
In contrast, a trade association and a food manufacturer suggested
that USDA should more narrowly define ``school day'' to exclude foods
sold at school programs and activities that occur before the start of
the instructional school day to achieve consistency with the treatment
of afterschool activities. Other individual commenters suggested that
the school day should start at the beginning of school and end at the
dismissal bell in order to allow morning and after school sales of
noncompliant competitive foods.
The Department wishes to reiterate that section 208 of the HHFKA
amended the CNA to require that the competitive food standards apply to
foods sold at any time during the school day, which does not include
afterschool programs, events and activities. In addition, as a
reminder, these standards are minimum standards. If an LEA wishes to
expand the application of the standards to afterschool activities, they
may do so. The definition of ``school day'' is, therefore, unchanged in
this final rule. In addition, in order to clarify the applicability of
the competitive foods nutrition standards, if a school operates a
before or after-school program through the Child and Adult Care Food
Program or the NSLP, the meal pattern requirements of the appropriate
program shall be followed.
Paired Exempt Foods
The competitive food standards provide exemptions for certain foods
that are nutrient dense, even if they may not meet all of the specific
nutrient requirements. For example, all fresh, frozen and most canned
fruits as specified in Sec. 210.11(d)(1) are exempt from all of the
nutrient standards because we want to encourage students to consume
more of these foods. Similarly, peanut butter and other nut butters are
exempt from the total fat and saturated fat standards, since these
foods are also nutrient dense and primarily consist of healthier fats.
A combination food is defined as a product that contains two or
more foods representing two or more of the food groups: Fruit,
vegetable, dairy, protein or grains. When foods are combined, they no
longer retain their individual exemptions and must meet the nutrient
standards that apply to a single item.
[[Page 50137]]
However, the regulation did not specifically address the treatment
of foods that are exempt from the regulatory requirements when they are
simply paired and packaged with other products (without added
ingredients) that are also exempt from one or more of the standards.
Many of these ``paired exemptions'' are nutrient dense and contain
foods that meet the intent of the competitive foods requirements. In
response to concerns raised by operators in the first year of
implementation, FNS issued policy guidance clarifying that ``paired
exempt foods'' retain their individually designated exemption for total
fat, saturated fat, and/or sugar when packaged together and sold.
Paired exempt foods are required to meet the designated calorie and
sodium standards specified in paragraphs Sec. 210.11(i) and (j) at all
times. Some examples of paired exemptions include:
Peanut Butter and celery. Peanut butter is exempt from the
total fat and saturated fat requirements. When it is paired with a
vegetable or fruit, such as celery, the paired snack retains the total
fat and saturated fat exemptions and may be served as long as the
calorie and sodium limits are met.
Celery paired with peanut butter and unsweetened raisins.
As noted above, celery and peanut butter both have exemptions.
Similarly, dried fruit, such as unsweetened raisins, are exempt from
the sugar limit. However, calorie and sodium limits still apply to the
snack as a whole.
Reduced fat cheese served with apples. Reduced fat cheese
is exempt from the total fat and saturated fat limits. When it is
paired with a vegetable or fruit, such as apples, the paired snack is
only required to meet the calorie and sodium limits.
Peanuts and apples. Peanuts are exempt from the total fat
and saturated fat limits. When peanuts are paired with a vegetable or
fruit, such as apples, the paired snack is only required to meet
calorie and sodium limits.
Operator implementation using the policy guidance was positive.
Therefore, FNS is formalizing this policy clarification through this
final rule by adding a definition of Paired exempt foods at Sec.
210.11(a)(6).
Definition of Entr[eacute]e Item
Entr[eacute]e item was defined in Sec. 210.11(a)(3) as an item
that includes only the following three categories of main dish food
items:
A combination food of meat or meat alternate and whole
grain rich food;
A combination food of vegetable or fruit and meat or meat
alternate; or
A meat or meat alternate alone, with the exception of
yogurt, low-fat or reduced fat cheese, nuts, seeds and nut or seed
butters.
During the course of implementation, some questions were received
with regard to packaging and selling two snack items together, such as
a cheese stick and a pickle or a whole grain-rich cookie and yogurt,
and considering that item to be an entr[eacute]e in order to sell
products with the higher entr[eacute]e calorie and sodium limits. The
proposed rule clearly expressed the Department's intent that an
entr[eacute]e be the main dish in the meal. Therefore, in order to
clarify the definition of ``Entr[eacute]e item'', the phrase ``intended
as the main dish'' is being added to the regulatory definition.
Some commenters, including trade associations and food
manufacturers, urged FNS to expand the definition of entr[eacute]e to
include a grain only, whole-grain rich entr[eacute]e, on the basis that
such foods are commonly served entr[eacute]e items in the SBP (e.g.,
pancakes, cereal, or waffles). A trade association and a food
manufacturer commented that if a breakfast item does not qualify for
the definition of entr[eacute]e item, it will be restricted to the 200-
calorie limit for snack items, which falls well below the minimum
calorie requirements for breakfast under the SBP.
An individual commenter recommended creating a separate definition
of ``breakfast entr[eacute]e'' to allow grain/bread items as an option.
A professional association and a food manufacturer requested that
typical breakfast foods, such as a bagel and its accompaniments be
considered an entr[eacute]e rather than a snack/side item at breakfast
time or at lunch time. However, a State department of education, a
community organization, and some individual commenters recommended that
FNS not allow a grain-only entr[eacute]e to qualify as a breakfast
entr[eacute]e item. The community organization argued that these items
are of minimal nutritional value and typically involve the addition of
high-sugar syrups. The State department of education commented that
allowing grain-only entr[eacute]e items under the competitive food
regulations would allow schools to sell SBP entr[eacute]e items such as
muffins, waffles, and pancakes that would not otherwise meet the
competitive food standards.
In view of the comments as well as input received on grain-only
entr[eacute]es during implementation of the IFR, the Department
published Policy Memorandum SP 35-2014 to clarify that, although grain-
only items were not included in the IFR as entr[eacute]es, an SFA is
permitted to determine which item(s) are the entr[eacute]e items for
breakfasts offered as part of the SBP. The policy flexibility was well
received and, therefore, this final rule amends the definition of
``Entr[eacute]e item'' to include reference to whole grain rich, grain-
only breakfast items served in the SBP, making them allowable breakfast
entr[eacute]es subject to the entr[eacute]e exemptions allowed in the
rule on the day of and the day after service in the SBP. Such
entr[eacute]e items also may be served at lunch in the NSLP on the day
of or the day after service in the SBP.
In summary, this final rule makes no changes to the IFR definitions
of Competitive food, Combination foods, School day, and School campus
at Sec. 210.11(a). This rule adds a definition of Paired exempt foods
to allow paired exemption items to be sold in schools, and amends the
definition of Entr[eacute]e item to include: (1) A specific reference
to grain only breakfast entr[eacute]es served in the SBP, and (2) to
incorporate the term ``intended as the main dish'' into the definition
to further clarify the requirements for entr[eacute]es as well as
entr[eacute]e exemptions.
State and Local Educational Agency Standards
Under Sec. 210.11(b)(1) of the IFR, State and/or LEAs have the
discretion to establish more rigorous restrictions on competitive food,
as long as they are consistent with the provisions set forth in program
regulations.
Thirty-five comments addressed this discretion and numerous
commenters expressly supported the provision. Several commenters,
including a school professional association, and individual commenters,
urged FNS to not allow additional standards for competitive foods
beyond the Federal standards because a national standard will allow
manufacturers to produce food items at a lower cost. A trade
association recognized that the IFR may not be preemptive, but
requested that USDA not encourage States to create additional criteria
for competitive foods. This commenter expressed concerns that
inconsistent State policies for competitive foods will limit
reformulation opportunities.
However, 12 advocacy organizations and an individual commenter
expressed the need for a national framework for competitive foods and
also expressed support for allowing States and localities to implement
locally-tailored, standards that are not inconsistent with the Federal
requirements. Similarly, some school professional associations and
individual commenters supported allowing States the flexibility to
create
[[Page 50138]]
their own restrictions on competitive foods, as needed.
The ability of State agencies and LEAs to establish additional
standards that do not conflict with the Federal competitive food
requirements is consistent with the intent of section 208 of the HHFKA,
and with the operation of the Federal school meal programs in general.
That discretion also provides an appropriate level of flexibility to
States and LEAs to set or maintain additional requirements that reflect
their particular circumstances consistent with the development of their
local school wellness policies. Any additional restrictions on
competitive food established by school districts must be consistent
with both the Federal requirements as well as any State requirements.
This final rule makes no change to the provision allowing States
and LEAs to establish additional competitive food standards that are
not inconsistent with the Federal requirements. This provision may be
found at Sec. 210.11(b)(1).
Suggestions To Prohibit Foods With Artificial Colors, Flavors and/or
Preservatives
Four individual commenters expressed concerns about continuing to
allow the sale of foods that contain genetically modified organisms
(GMO) and foods containing artificial ingredients, colors, and flavors.
Just over 30 comments were received on other issues relating to food
requirements. These comments included suggestions such as eliminating
or putting limitations on high fructose corn syrup, sugar, fiber, and
GMO foods. One individual commenter urged that all foods sold in
schools should be organic.
The Food and Drug Administration (FDA) makes determinations
regarding the safety of particular food additives and USDA defers to
FDA on such determinations. As discussed previously, these standards
are minimal standards that must be met regarding competitive foods sold
in schools. This final rule continues to provide the flexibility to
implement additional standards at the State and/or local level.
General Competitive Foods Standards
The rationale for many comments received on the IFR was consistency
with the HUSSC and Alliance for a Healthier Generation standards. The
Department wishes to point out that while those standards were
considered in the development of the proposed rule, both of those
standards have conformed to the USDA competitive foods standards
subsequent to publication of the IFR.
Combination Foods
The general nutrition standard in the rule at Sec.
210.11(c)(2)(iv) specifies that combination foods must contain \1/4\
cup of fruit or vegetables. The Department received 45 comments on this
provision of the IFR, the majority of which urged us to reduce the
fruit or vegetable components to \1/8\ cup to be consistent with NSLP/
SBP standards, which allow schools to credit \1/8\ cup of fruit or
vegetable toward the total quantity required for school meals. As
indicated in the preamble to the IFR rule, maintaining the higher \1/4\
cup quantity requirement for fruits/vegetables in combination foods
generally supports the availability of more nutritious competitive food
products and is consistent with the Institute of Medicine (IOM)
recommendations and the DGA. Competitive foods are evaluated on the
basis of the qualities of the individual product being sold as opposed
to the quantity of the ingredients of the product being credited toward
the meal pattern requirement in the NSLP or SBP. Moreover, it is
important to note that combination foods with less than \1/4\ cup of a
fruit or vegetable may indeed qualify under the other food requirements
specified in the rule, such as the whole grain rich or food group
criteria, depending on the composition of the food item. It is only for
those foods that qualify solely on the basis of being a competitive
food product that contains a fruit or vegetable that this \1/4\ cup
specification is required. This food standard as specified in Sec.
210.11(c)(2)(iv) is, therefore, retained in the final rule.
Whole Grains
One of the general standards for competitive foods included in
Sec. 210.11(c)(2)(ii) and (e) requires that grain products be whole-
grain rich, meaning that they must contain 50 percent or more whole
grains by weight or have whole grains as the first ingredient.
About 60 comments addressed this IFR requirement. Many commenters,
including a State department of education, urged USDA to make the
competitive food whole grain standard consistent with the NSLP/SBP
whole grain standard. Several commenters, including a school
professional association and individual commenters, supported the
``whole grain rich'' requirement. In particular, food manufacturers,
trade associations, and a school district emphasized the importance of
including the criteria that the whole grains per serving should be
greater than or equal to 8 grams in the whole grain-rich identifying
criteria. Three individual commenters generally opposed the whole
grain-rich requirement.
As indicated in the preamble to the proposed rule, this standard is
consistent with the DGA recommendations, the whole grain-rich
requirements for school meals and the prior HUSSC whole grain-rich
requirement (HUSSC has subsequently updated the standards to conform to
these competitive food standards). The Department wishes to point out
that the whole grain criteria for competitive foods is used as a
criterion for determining the allowability of an individual item to be
sold as a competitive food, while school meals' whole grain-rich
criteria determine the crediting of the menu items toward the grain
component of the meal. Allowing the additional measures for grain
suggested by some commenters such as >=8 grams of whole grain would not
ensure that grain products in competitive food contain at least 50
percent whole grains and would require additional information from the
manufacturer. Therefore, the whole grain-rich standard established in
the interim final rule is affirmed in this final rule.
The food industry has made a significant effort to reformulate
products to meet this standard and to reinforce the importance of whole
grains to the general public as well. These efforts have resulted in
the availability of numerous whole grain-rich products in the general
public marketplace as well as in the foods available for service and
purchase in schools. Maintaining this standard ensures that students
have the flexibility to make choices among the numerous whole grain-
rich products that are now available to them in school.
Since this competitive food standard is consistent with the DGA
recommendations, the whole grain-rich requirements for school meals,
and HUSSC standards, this final rule affirms the requirement as
established by interim final rule.
DGA Nutrients of Public Health Concern
In recognition of the marketplace and implementation limitations,
but also mindful of important national nutrition goals, the IFR
implemented a phased-in approach to identifying allowable competitive
foods under the general standard. For the initial implementation period
in School Year 2014-15 through June 30, 2016 (School Year 2015-16), the
general food standard included a criterion that if a competitive food
met
[[Page 50139]]
none of the other General Standards, that food may be considered
allowable if it contained 10 percent of the Daily Value of a nutrient
of public health concern (i.e., calcium, potassium, vitamin D, or
dietary fiber). Effective July 1, 2016, this criterion was removed as a
general criterion.
Eight commenters, including some food manufacturers, opposed the
phase out of this criterion as a General Standard for allowable foods.
However, information available to the Department indicates that
industry has made major strides over the past three years and many
manufacturers have come into compliance with the competitive food
standards by reformulating their products in recognition of the fact
that the 10-percent DV General Standard would become obsolete as of
July 1, 2016. Prior to July 1, 2016, fewer than 21 products that
depended solely on the 10-percent DV General Standard appeared on the
Alliance for a Healthier Generation (AHG) Food Navigator as Smart
Snacks compliant foods. There are currently about 2,500 Smart Snacks
compliant products listed in the AHG product database. This means that
items that had qualified based solely upon the 10-percent DV General
Standard represented less than 1 percent (0.84 percent) of the products
that had been captured in the Alliance Navigator.
Therefore, this final rule makes no changes to the General
Standards for competitive foods established by the IFR and the 10-
percent DV standard has expired as scheduled. Eliminating the 10-
percent DV criterion more closely aligns the competitive food standards
with the DGA, as required by the HHFKA.
Elimination of this standard aligns the competitive foods rule with
the DGA which states that ``nutrients should come primarily from
foods'' as well as the IOM recommendations which indicate that this
approach ``reinforces the importance of improving the overall quality
of food intake rather than nutrient-specific strategies such as
fortification and supplementation.''
Specific Nutrient Standards Sec. 210.11(d)-(k)
In addition to the General Standards, the rule includes nutrient
standards for specific nutrients contained in allowable foods. These
include standards for total fat, saturated fat, trans fat, total
sugars, calories and sodium. These standards apply to competitive foods
as packaged or served to ensure that the competitive food standards
apply to the item sold to the student.
Twenty commenters expressed general support for the IFR nutrient
standards for competitive foods without discussing a specific element
of the nutrient standards. Several advocacy organizations and
professional associations agreed with requiring that all foods sold in
schools meet the nutrient standards and with limiting calories, fats,
sugars, and sodium in snack foods and beverages. A health care
association expressed support for the nutrition standards adopted in
the IFR suggesting that any changes made should strengthen the
standards and not weaken them. Another health care association
expressed the belief that the established limits will inherently
preclude the sale of candy and other confections and products with
added sugars that promote tooth decay. An individual commented that the
nutrient standards will eliminate many seemingly healthy foods that are
surprisingly laden with sugar, calories, fat, or salt. A trade
association supported the use of a nutrition criteria-based system for
competitive food standards, as opposed to a structure that allows and
disallows specific foods, because manufacturers will have the
opportunity to reformulate and innovate to meet the rule's provisions.
Seven commenters expressed general opposition to the IFR nutrient
standards for competitive foods without discussing a specific element
of the nutrient standards. A few individual commenters expressed
concerns that the IFR nutrient standards will encourage chemically
processed low-fat foods and sugar substitutes at the expense of whole
foods and natural sugars. A food manufacturer urged USDA to simplify
the criteria for competitive foods by using only the calorie limit and
eliminating the total fat, saturated fat, and sugar limits, arguing
that the combined calorie limit and food group standards would be less
burdensome to implement and would inherently limit fats and sugars.
The overwhelming majority of comments received on the proposed rule
supported the nutrient standards and those standards were incorporated
into the IFR with some minor changes. The IFR comments received on this
issue were minimal and primarily supported the established standards.
Therefore, this rule finalizes the nutrient standards as included in
the IFR with the addition of several modifications being made to items
exempt from those nutrient standards as discussed below.
Fruits and Vegetables
Generally consistent with both the IOM and the DGA, the IFR
included an exemption to the nutrient standards for fresh, frozen and
canned fruits and vegetables with no added ingredients except water or,
in the case of fruit, packed in 100 percent fruit juice, extra light
syrup or light syrup; and for canned vegetables that contain a small
amount of sugar for processing purposes in order to maintain the
quality and structure of the vegetable.
Ten comments expressed support for the IFR exemption from the
nutrient standards for fresh, frozen, or canned fruits and vegetables.
In particular, a school professional association and some individual
commenters agreed with the decision to include ``light syrup'' in the
exemption. A food manufacturer supported the inclusion of all forms of
fruit, and products made with fruit, without added nutritive
sweeteners, as competitive foods.
Three commenters recommended that the exemption for fruits and
vegetables be more stringent. These commenters suggested that any added
syrup contributes added unneeded sugars. Two trade associations
supported the IFR provision that fruit packed in light syrup is exempt
from the nutrition standards.
However, a few comments were received addressing the exemption
parameters for canned vegetables--allowing an exemption only for those
canned vegetables containing water and a small amount of sugar for
processing. A trade association and a food manufacturer stated that
they were not aware of any canned vegetables that contain only water
and sugar for processing purposes. They indicated that sodium, citric
acid, and other ingredients are commonly used in the processing of
canned vegetables. They also pointed out that those processing aids are
allowed to be used in the low sodium vegetables packed for the USDA
Foods Program.
The Department wishes to point out that, although some sodium is
used in processing canned vegetables, most canned vegetables would
still meet the nutrient standards for sodium without being given a
specific exemption. However, in light of the important nutrients
provided by vegetables, for ease of operator implementation and in
recognition of common processing procedures, the Department agrees that
low sodium/no salt added canned vegetables should also benefit from the
fruit and vegetable exemption. This final rule, therefore, revises the
canned vegetable exemption to allow low
[[Page 50140]]
sodium/no salt added canned vegetables with no added fat to be exempt
from each of the competitive food nutrient standards.
Total Fat, Saturated Fat and Trans Fat
To qualify as an allowable competitive food, the IFR at Sec.
210.11(f) requires that no more than 35 percent of the total calories
per item as packaged or served be derived from total fat and requires
that the saturated fat content of a competitive food be less than 10
percent of total calories per item as packaged or served. In addition,
as specified in Sec. 210.11(g), a competitive food must contain zero
grams of trans fat per portion as packaged or served (not more than 0.5
grams per portion).
While there are no exemptions from the trans fat standard, there
are a number of exemptions from the total fat and the saturated fat
standards. Seafood with no added fat is exempt from the total fat
standard but is still subject to the saturated fat, trans fat, sugar,
calorie and sodium standards. Exemptions included in the IFR to both
the total fat and saturated fat standards include reduced fat cheese
and part skim mozzarella cheese not included in a combination food
item, nuts and seeds and nut/seed butters not included in a combination
food item and products that consist of only dried fruit with nuts and/
or seeds with no added nutritive sweeteners or fat. Such exempt
products are still subject to other competitive food nutrient standards
such as the trans fat, sugar, calorie and sodium standards.
Total Fat
Fifteen commenters, including a school professional association and
several individuals, expressed support for the IFR competitive food
restriction on total fat. No comments were received to make this
standard more stringent. However, about 30 comments opposed the IFR
restriction on total fat, arguing in favor of either making the
restriction less stringent or eliminating the standard entirely. Two
trade associations asserted that the total fat limit is inconsistent
with the NSLP/SBP standards, which limit saturated fat and trans fat
but not total fat. These commenters suggested that limitations on
calories, saturated fat, and trans fat in competitive food standards
will ensure that the foods are low in total fat. Similarly, a school
district also recommended removing the total fat limit, asserting that
such a limit is inconsistent with the NSLP/SBP requirements and will
place an undue burden on menu planners.
Fifty-five comments addressed the IFR exemptions from the total fat
limit. Three trade associations and a food manufacturer expressed
support for the exemption for part-skim mozzarella. Two individual
commenters, however, opposed the exemption for reduced-fat cheese and
part-skim mozzarella, asserting that whole foods may be healthier than
low-fat alternatives. Three trade associations and a school district
favored extending the exemption for reduced-fat cheese to all cheese
that meets the calorie limits.
Some commenters suggested various other modifications to the
standards for individual foods, such as eggs, yogurt, and full fat
cheese. A couple of comments dealt with various combinations of food
items that are effectively dealt with in this final rule with the
addition of a definition of Paired exempt foods discussed previously in
this preamble.
One commenter mistakenly noted that alternative milk products
allowed in the reimbursable meals programs may not meet these
requirements. We wish to clarify that total fat, saturated fat and
trans fat standards do not apply to beverages.
The Department recognizes that there may be foods that are commonly
enjoyed by students and are generally healthy, but do not currently
meet the competitive food standards due to the total fat content.
Specifically, we are aware that some legume-based spreads/dips may
offer significant nutritional benefits, but may not be able to meet
total fat standards due to the inherent fat content of key ingredients
in traditional legume based spreads or dips, such as hummus. Another
common and generally healthy snack food is guacamole. Although avocado
is currently exempt from the total fat standard because it is a fruit,
when other non-fruit or vegetable ingredients are added to make a dip,
the exemption is lost and the total fat standard is exceeded. Other
common and generally healthy foods that may benefit from removal of the
total fat standard include snack bars and salads with dressing.
Because the DGAs are based on the latest scientific research and do
not have a key recommendation for total fat and to address commenter
requests for consistency between standards for competitive foods sold
in schools and the NSLP/SBP, the Department has determined that further
comment should be accepted on the total fat standard. In particular,
comments are requested on whether the standard for total fat should be
eliminated given that there will continue to be standards in place for
calories, sodium, saturated fat, and trans fats which will limit
unhealthy fats. Comments are also sought on whether the total fat
standard should be maintained but should exempt certain food items.
While the total fat standard as currently implemented will continue to
be in place, this single, individual standard remains an interim final
standard. The Department, as previously noted, will accept public
comments on this standard only. The Department is interested in
comments related to the impact revising or eliminating the total fat
standard may have. This could include allowing more items to be sold
that are lower in unhealthy, saturated fats but that might be higher in
healthy, unsaturated fats and simplifying implementation for local
operators. Commenters also should consider whether there could be
unintended consequences to revising or eliminating the total fat
standard. As noted above, commenters should keep in mind that the
standards for calories, sodium, saturated fat, and trans fat remain in
place and will continue to limit the types of foods that may be sold in
schools.
Saturated Fat (<10% of Calories)
Twenty comments expressed support for the IFR competitive food
restriction on saturated fat. A school district recommended consistency
with NSLP/SBP by only calculating saturated fat and total calories.
Twenty-five commenters were opposed to the IFR restriction on
saturated fat, arguing in favor of either making the restriction less
stringent or eliminating the standard entirely. A school professional
association and individual commenters argued that the standard is too
restrictive and will exclude grilled cheese, chicken tenders, hot dogs,
pizza, and healthy option entr[eacute]es.
Forty-five comments addressed the IFR exemptions from the saturated
fat limit. Most of the comments requested saturated fat exemptions for
the same products for which they requested total fat exemptions
discussed above. Three trade associations and a school district favored
extending the saturated fat exemption to all cheese that meets the
calorie limits.
Additional comments specifically addressed exemptions from the
saturated fat limit. A professional association and several individual
commenters suggested that the saturated fat standard should exclude
eggs or cheese packaged for individual sale and for non-fried
vegetables and legumes.
Seven comment letters included other comments relating to the IFR
saturated
[[Page 50141]]
fat limit. Two trade associations and a food manufacturer requested
that FNS clarify a conflict in the IFR. These commenters stated that
the ``Summary of Major Provisions'' in the preamble states that
competitive foods must contain ``no more than 10 percent'' of total
calories from saturated fat, but Sec. 210.11(f)(1)(ii) states that the
saturated fat content of a competitive food must be ``less than 10
percent'' of total calories. The Department wishes to clarify that the
requirement as included in the regulatory provision at Sec.
210.11(f)(1)(ii) that the saturated fat content of a competitive food
must be less than 10 percent of total calories is correct.
The Department does not agree that all cheese should be exempt from
the total fat and saturated fat standards because the total fat
standard included in the IFR is identical to the recommended IOM
standard for total fat, and the saturated fat standard is consistent
with the DGA recommendations.
Trans Fat (0g as Stated on the Label)
Twenty comments addressed the IFR trans fat restriction. Several
commenters, including a school professional association and some
individual commenters who supported the total fat and saturated fat
limits, also expressed support for the IFR trans fat limit. A school
district also expressed support for the IFR limitation of zero grams of
trans fat in competitive foods. To reduce confusion among school food
service workers and State auditors, a trade association and a food
manufacturer recommended that the phrasing of the trans-fat provision
for competitive foods should be consistent with the provision in the
NSLP/SBP requirements, which does not apply to naturally occurring
trans fats present in meat and dairy products. While trans fat content
is normally indicated on the label, the Department will provide
additional guidance as necessary on this issue through technical
assistance resources.
Exemption for Eggs With No Added Fat
The competitive food standards in the IFR provided that, in order
to qualify as an allowable competitive food, no more than 35 percent of
calories may be contributed by total fat, and less than 10 percent of a
food's calories may come from saturated fat. Eggs do exceed these fat
standards. However, similar to nut butters, reduced-fat cheese, and
seafood, eggs exceed the competitive foods fat standards and are
nutrient dense. Eggs are high in protein and contain essential
nutrients including, B vitamins, Vitamin E, Vitamin D, iron, zinc, and
magnesium. While eggs are high in fat, the DGA recommends increased
consumption of nutrient dense foods and includes eggs in a healthy
eating pattern. Evidence suggests that one egg a day does not increase
a person's risk for high cholesterol or cardiovascular diseases. In
addition, some previous State agency standards as well as the previous
standards implemented by the Alliance for a Healthier Generation did
allow eggs for the reasons cited above.
Therefore, in response to comments, the nutrient profile of eggs
mentioned above and operator requests to allow this nutrient dense and
low cost option, this final rule is amended to add an exemption from
the total fat and saturated fat standards for whole eggs with no added
fat. This exemption appears in Sec. 210.11(f)(iv).
Calorie and Sodium Standards for Competitive Foods
Calories
Some commenters supported the IFR competitive food calorie limits.
In particular, a health care association urged USDA not to grant
requests to increase the IFR calorie limits because doing so would
increase the likelihood that students would choose and consume more
than the recommended number of calories, which this commenter asserted
would undermine USDA's efforts to address the childhood obesity
epidemic. A food manufacturer urged replacing the sugar and fats
nutrition standards with only the calorie limit.
Many commenters expressed opposition to the calorie limits for
competitive foods. Commenters said the proposed limits were too
stringent and would limit student access to many food products,
particularly a la carte foods sold during the meal service. Some
commenters provided specific suggestions for alternative calorie limits
for snacks, ranging from 240 to 300 calories, and for entr[eacute]es,
ranging from 400 to 500 calories.
Fifteen commenters addressed age and grade groupings, several
suggesting separate calorie limits by grade, similar to the structure
of the school meal patterns, reasoning that children have different
calorie needs as they grow.
This final rule retains the calorie limits for snacks/side dishes
(200 calories per item as packaged or served), and entr[eacute]e items
(350 calories per item as packaged or served), which are consistent
with IOM recommendations and some voluntary standards. The Department
does not agree that higher limits are appropriate, as suggested by some
commenters, particularly since it is not possible to limit the number
of competitive food items that may be purchased. We appreciate that
separate calorie limits by grade levels for snacks would align with
existing voluntary standards that many schools have adopted, and would
be more tailored to the nutritional needs of children of different
ages. However, separate calorie limits for different grade levels would
also add complexity for local program operators with schools of varying
grade levels. State agencies or school districts could choose to
implement varying calorie limits based on grades, provided the maximum
level does not exceed the limit in this final rule. Please note that
the calorie limit for entr[eacute]e items would apply to all
entr[eacute]es that do not meet the exemption for NSLP/SBP
entr[eacute]e items.
The Department wishes to point out that great strides have been
made in the availability of competitive foods that meet the standards.
Numerous products have been reformulated and/or repackaged to ensure
that the products meet the competitive foods standards and those
products have been made available to schools for sale to students. In
addition, many changes have been made to the a la carte offerings
available in the cafeteria and these changes are contributing greatly
to the overall healthy environment that is so important in our schools.
Sodium
Under the IFR at Sec. 210.11(i), snack items and side dishes sold
[agrave] la carte could contain no more than 200 calories and 230 mg of
sodium per portion as served, including the calories and sodium in any
accompaniments, and must meet all other nutrient standards for non-
entr[eacute]e items. The IFR stipulated that as of July 1, 2016, snack
items and side dishes must have not more than 200 calories and 200 mg
of sodium per item as packaged or served. Under the IFR at Sec.
210.11(j), entr[eacute]e items sold [agrave] la carte could contain no
more than 350 calories and 480 mg sodium per portion as served,
including any accompaniments, and meet all other nutrient standards.
Several comments, including one from a health care association and
two from individuals, agreed with the IFR sodium provisions. The health
care association argued that although some commenters urge USDA to
create ``consistent'' sodium standards for the NSLP/SBP and competitive
foods standards, the sodium limits for the school meals program apply
to an entire meal, while the sodium limits for competitive foods only
apply to one component of a meal--a single entr[eacute]e,
[[Page 50142]]
side dish, or snack. Therefore, this commenter reasoned that the sodium
limits for competitive food items should be lower than those for a
reimbursable meal. An individual commenter acknowledged that sodium
limits will alter the tastes of many foods, but suggested that there
are many other spices, herbs, and other ways to enhance the flavors of
foods without increasing the risk of hypertension.
Several commenters recommended that the sodium reductions should
continue to be phased in gradually to allow taste preferences and
manufacturers additional time to adjust. Some commenters provided
suggestions for higher sodium limits, ranging from 230 mg to 360 mg for
snacks and 550 mg to 650 mg for entr[eacute]es. One commenter, a
manufacturer, wanted USDA to add an exemption to the sodium limit for
natural reduced fat cheese and reduced fat, reduced sodium pasteurized
processed cheese.
The Department's standards for sodium were based on the IOM
recommendations. The proposed ``per portion as served'' standards for
competitive food were considered in the context of the DGAs and of the
overall sodium limits for school meals, the first of which took effect
in School Year 2014-15, the same school year these competitive food
standards were implemented. USDA acknowledges that sodium reduction is
an issue that impacts the broader marketplace, not just schools, and
understands that sodium reduction is a process that will take time.
In recognition of the fact that there were existing voluntary
standards for competitive food that had the higher sodium limit of 230
mg for snacks/side dishes, which meant there were existing products
that had been formulated to meet the higher standard available to
schools, the IFR set the initial limit for sodium for snacks and side
dishes at 230 mg per item as packaged or served, for the first two
years of implementation of these standards. The IFR provided that, as
of July 1, 2016, the sodium limit for snacks and side dishes shall be
reduced to 200 mg per item as packaged or served.
It is evident that many manufacturers have developed new products
or reformulated existing products to meet the July 1, 2016, 200 mg
standard. The Department believes that the phased in approach taken in
the IFR did work to ensure product availability for schools for initial
implementation and provided ample time for manufacturers to adjust to
meet the lower limit. Therefore, this final rule does not change the
sodium requirement for snacks and side dishes. The sodium standard of
230 mg for snacks and side dishes expired as scheduled and the 200 mg
standard is implemented as of July 1, 2016. In addition, the
entr[eacute]e limit of 480 mg per item as packaged and served will
remain in place. The Department wishes to point out that any
entr[eacute]es served in school meals will be covered under the NSLP/
SBP entr[eacute]e item exemption in Sec. 210.11(c)(3)(i).
Total Sugars in Competitive Foods
The IFR at Sec. 210.11(h)(1) provided that not more than 35
percent of the weight per item as packaged and served could be derived
from total sugars. In addition, Sec. 210.11(h)(2) provided the
following exemptions to the total sugar standard:
Dried whole fruits or vegetables; dried whole fruit or
vegetable pieces; and dehydrated fruits or vegetables with no added
nutritive sweeteners;
Products that consist of only dried fruit with nuts and/or
seeds with no added nutritive sweeteners or fat; and
Dried fruit with nutritive sweeteners required for
processing and/or palatability purposes. (At this time, this applies to
dried cranberries, tart cherries and dried blueberries only.)
Most commenters generally supported the application of the total
sugars by weight standard. Many commenters stated that this standard
provides flexibility and would allow the sale of more products that are
favorites among students.
A trade association expressed the opinion that a restriction on
sugar is not a necessary component of the competitive food standards
because calorie limits will prevent excess sugar consumption. A State
department of education and an individual suggested expressing the
sugar limit in grams rather than percentages. Several commenters
indicated that sugar limits would force manufacturers to produce foods
which are actually less healthy in order to meet that standard. Another
food manufacturer expressed support for a sugar restriction based on
percent calories by weight, although stating that it did not believe a
total sugar limit is warranted. A trade association and a food
manufacturer asserted that the sugar criterion of 35 percent by weight
is in line with the Alliance for a Healthier Generation guidelines,
which was the basis of many products specially formulated for schools.
The trade association added that for foods that naturally contain fat
and sugar, such as dairy products, making lower fat versions of these
products reduces the percentage of calories from fat, which increases
the percentage of calories from sugar, so a sugar limit based on weight
is preferable.
Two comments, one received from an advocacy organization and
another from an individual commenter, favored a sugar limit as a
percent of calories arguing that such an alternative would be more
protective. The individual asserted that there are many foods that
would be disallowed were the standard 35 percent sugar by calories, but
will be allowed because the sugar limit is a percentage of calories by
weight.
The Department acknowledges that this standard allows more products
to qualify to be sold as a competitive food in schools but wishes to
point out that the portion sizes of these and all foods would be
limited by the calorie and fat standards. State agencies and school
districts could choose to implement a sugar standard based on calories,
provided that it is at least as restrictive as the regulatory standard
(i.e., no allowable product under the calorie measure could exceed 35
percent sugar by weight).
Most commenters supported the exemptions to the total sugar
requirement as well as the provision allowing an exemption for dried
fruit with nutritive sweeteners required for processing and/or
palatability purposes. (At this time, this applies to dried
cranberries, tart cherries and blueberries only.) A school district
requested guidance listing specific dried fruits that require nutritive
sweeteners and urged that this list be maintained as guidance rather
than as part of the rule so that USDA has flexibility to modify the
list as warranted without requiring rulemaking. A trade association
commended USDA for agreeing to issue future guidance on determining
which dried fruits with added nutritive sweeteners qualify for the
exemption. The portion sizes of these dried fruits would be limited by
the calorie standards.
A few commenters requested that processed fruit and vegetable
snacks (e.g., fruit strips, fruit leathers or fruit drops) be included
under the exemption for dried fruit, as many are processed with
concentrated fruit puree. The Department, however, does not agree that
processed fruit and vegetable snacks should be included under either
dried fruit/vegetable exemption. These snack type products are not
whole dried fruit pieces and the concentrated fruit puree or juice
concentrate used to make these products is often the primary
ingredient. These products could still qualify without the exemption as
a competitive food if they meet all of the standards, including having
a fruit or vegetable as the first ingredient.
[[Page 50143]]
The 2015-2020 DGA contain specific recommendations on limiting
added sugar. This recommendation specifies that no more than 10 percent
of calories should come from added sugars. The competitive food
standards address sugar content in the context of the percentage of
sugar by weight of the product sold. The standards do not include a
focus on added sugars, or added sugars representing a particular
percentage value compared to calories. The rationale for limiting sugar
by weight in the IFR was that a sugar by weight standard was included
in a number of voluntary standards reviewed during the development of
the proposed rule, and, generally, this standard was supported by
commenters as providing the most flexibility for program operators. The
Department acknowledged in both the proposed rule and IFR that a sugar
standard based on added sugars is preferable but that such a standard
would be very difficult for local program operators to implement and
for State agencies to monitor, because the current Nutrition Facts
label does not differentiate between naturally occurring and added
sugars. The Department has consistently indicated that the sugar
standard included in this rule will be reconsidered if the Nutrition
Label is updated to reflect added sugars. On May 27, 2016, the FDA
published a final regulation which included a requirement that added
sugars in foods be included on the Nutrition Facts Label (81 FR
34000).The new labeling requirements will be fully implemented by
summer 2019. Because of the implementation period of the labeling rule,
FNS is maintaining in this final rule the sugar standard that was put
forth in the interim final rule. The Department will monitor
implementation of the new labeling requirements and, in the future,
anticipates updates to program regulations and guidance regarding the
sugar standard, particularly considering how to set standards for added
sugars in competitive foods sold to students on the school campus
during the school day.
Therefore, this final rule continues to require in Sec.
210.11(h)(1), that the total sugar content of a competitive food must
be not more than 35 percent of weight per item as packaged or served
and retains the exemption included in Sec. 210.11(h)(2) to the total
sugar content standards for dried fruit with added nutritive sweeteners
that are required for processing and/or palatability purposes
(currently dried cranberries, tart cherries and blueberries). USDA will
issue any necessary future guidance when a determination is made to
include any additional dried fruits with added nutritive sweeteners for
processing and/or palatability to qualify for this exemption.
Exemptions for Some or All of the Nutrition Standards for Menu Items
Provided as Part of the NSLP/SBP
The IFR exempts NSLP/SBP entr[eacute]e items from the competitive
food standards when served as a competitive food on the day of service
or the day after service in the reimbursable lunch or breakfast
program. Six commenters expressed support for this approach regarding
NSLP/SBP menu items sold as competitive foods. Most of these
commenters, including advocacy organizations and a health care
association, urged USDA not to grant requests to expand the exemption
for NSLP/SBP items sold a la carte to, for example, include side
dishes. Some of these commenters stated that expanding the exemption
would undermine or weaken the competitive food standards. One advocacy
organization expressed support that the IFR will require NSLP/SBP side
dishes sold a la carte to meet the competitive food standards. Another
advocacy organization stated that the approach taken in the IFR will
allow for reasonable flexibility for the school food service while also
addressing concerns regarding the frequency with which particular food
items are available.
Fifteen comments recommended that NSLP/SBP entr[eacute]es should
not receive an exemption from the competitive food standards at any
time. Some commenters argued that reimbursable meals are designed to
provide a variety of foods and beverages that, over the course of a
week, create a balance of all nutrients, while limiting calories, fats
and sodium, and this balance can be disrupted when individual foods may
be chosen at the expense of the whole meal. Specifically, a health care
association commented that because schools are allowed to balance the
nutrition components of reimbursable meals over a week, foods that may
exceed the limits for fat, sodium, and calories can be included in a
reimbursable meal when balanced over the week with healthier sides. For
this reason, an advocacy organization stated that the exemption for a
la carte NSLP/SBP entr[eacute]es from the competitive food standards
will allow children to continue to purchase less healthy entr[eacute]e
items a la carte instead of nutritious snack foods or more balanced
reimbursable meals.
Several advocacy organizations and a professional association
argued that allowing the sale of any foods that are inconsistent with
the competitive food standards will undermine the IFR and efforts of
parents to provide healthy food options to children. This commenter
asserted that although the exemption for a la carte NLSP/SBP
entr[eacute]e items only exists on the day and day after it is served
as part of a reimbursable meal, many schools--particularly high schools
that offer multiple meals each day--may offer popular items like pizza,
breaded chicken nuggets, and burgers every day or nearly every day.
One advocacy organization recognized the importance of consistency
between foods served in meals and a la carte and argued that there can
be consistency without exempting a significant number of a la carte
items from competitive food standards. This commenter stated that if
individual items meet the competitive food standards, they should have
no problem fitting into healthful NSLP/SBP menus, which would allow for
consistency and flexibility, while also safeguarding children's health.
One hundred commenters suggested that the competitive food
standards should exempt NSLP/SBP entr[eacute]e items sold a la carte
regardless of the day on which they are served as part of the
reimbursable meal. Many of those commenters argued that once an item is
served that meets reimbursable meal pattern guidelines, it should be
allowed to be sold as a competitive food without frequency
restrictions. Some stated that such an exemption would ease menu
planning and operational issues as well as reduce confusion. These
comments were primarily made by trade associations and food industry
commenters as well as some school food service organizations.
Closely associated with the issue of exempting NSLP and SBP
entr[eacute]es on the day served and the day after served in the
reimbursable meal is the lack of an exemption for side dishes served in
the reimbursable meals. Commenters were also split on whether or not
such food items should enjoy an exemption from the competitive food
standards. Eighty commenters urged that NSLP/SBP side items sold a la
carte should be exempt from competitive food standards. Many of the
arguments made to support this view were the same as those discussed
above related to the suggestion that all NSLP/SBP entr[eacute]e items
should be exempt from all competitive food standards regardless of day
served. Other commenters indicated that side items should not be exempt
from the competitive food standards.
USDA understands the concerns of commenters on both sides of this
issue.
[[Page 50144]]
Given the circumstances surrounding NSLP and SBP meal planning as well
as the increase in healthful entr[eacute]es being served, it is
important to maintain some flexibility when it comes to NSLP and SBP
entr[eacute]es. However, there is a distinction to be made between the
meal patterns for reimbursable meals and the competitive food
standards. The NSLP and SBP offer meals over the course of the school
week and less nutritious selections may be balanced out with healthier
items over the course of the week. Competitive food standards are based
on the nutrients that are provided by individual food items that are
sold to students on the school campus during the school day. In
addition, it is important to note that it appears that many schools
have successfully adapted to this requirement, some by expanding the
number of entr[eacute]es available to students on a daily basis and
others by incorporating side items that meet the competitive foods
requirements into their reimbursable meal menus.
Therefore, the exemption for NSLP/SBP entr[eacute]e items only is
retained. Side dishes sold [agrave] la carte would be required to meet
all applicable competitive food standards. The exemption for the
entr[eacute]e items is available on the day the entr[eacute]e item is
served in NSLP/SBP, and the following school day. Entr[eacute]e items
are provided an exemption, but side dishes are not, in an attempt to
balance commenter opposition to any exemptions for NSLP/SBP menu items
and needed menu planning flexibilities. The approach adopted in this
rule supports the concept of school meals as being healthful, and
provides flexibility to program operators in planning [agrave] la carte
sales and handling leftovers. We anticipate that this approach, along
with the recent changes to school meal standards will continue to
result in healthier menu items in meals than in the past, including
entr[eacute]es. Exempt entr[eacute]es that are sold as competitive food
must be offered in the same or smaller portion sizes as the NSLP and
SBP.
Guidance on Competitive Foods
Several commenters requested information on a variety of other
issues specific to individual foods. Many of these questions have been
clarified in the extensive guidance issued by the Department in policy
memoranda and other materials that are available on our Web site at
http://www.fns.usda.gov/healthierschoolday/tools-schools-focusing-smart-snacks. We encourage interested parties to review these materials
since they are updated frequently. In addition, the Alliance for a
Healthier Generation, in partnership with FNS, has developed extensive
resources including guidance materials and the Competitive Foods
Calculator and Navigator, which provide a way to evaluate individual
foods and beverages as well as a listing of Smart Snacks allowable
foods and beverages, respectively. These items are available at
www.healthiergeneration.org.
Accompaniments
The IFR at Sec. 210.11(n) limited the use of accompaniments to
competitive food, such as cream cheese, jelly, butter, salad dressing,
etc., by requiring that all accompaniments be included in the nutrient
profile as part of the food item served. Two commenters supported
requiring accompaniments to be included in the nutrient profile as part
of the food item served. A State department of education commented that
the requirement to include the nutrient content of accompaniments in
the nutrient profile of the product is appropriate and reasonable
because condiments can contribute significant calories, sugar, fat and/
or sodium. A school district expressed support for the IFR requirements
relating to accompaniments not requiring pre-portioning, but requiring
that they be included in the nutrient profile of competitive foods.
Forty-five commenters opposed the requirement by suggesting that a
weekly calorie range should be applied or that there should be no
consideration of accompaniments.
The Department maintains that it is important to account for the
dietary contribution of accompaniments in determining whether a food
item may be served as a competitive food. Accompaniments can provide
substantial sodium, sugar and/or calories to food items sold.
Therefore, the requirement that accompaniments be included in the
nutrient profile of foods is retained. As provided in the IFR, schools
may determine the average serving size of the accompaniments at the
site of service (e.g., school district). This is similar to the
approach schools have used in conducting nutrient analysis of school
meals in the past. Schools have successfully implemented this
requirement and have not had difficulty in determining the average
serving size of accompaniments that are used in schools, but the
Department will provide further guidance if necessary.
Nutrition Standards for Beverages
The IFR at Sec. 210.11(m) established standards for allowable
beverage types for elementary, middle and high school students. At all
grade levels, water, low fat and nonfat milk, and 100 percent juice and
100 percent juice diluted with water with no added sweeteners are
allowed in specified maximum container sizes, which varied by grade
level. The rule also allows additional beverages for high school
students in recognition of the wide range of beverages available to
high school students in the broader marketplace and the increased
independence such students have, relative to younger students, in
making consumer choices.
General Comments on Beverage Requirements
Ten commenters expressed general support for the beverage standards
included in the IFR. Sixty-five commenters generally opposed the ICR
beverage standards and cited a variety of reasons, from wanting to
allow all grade levels to have no-calorie/low calorie beverages to
opposing allowing high school students to have no-calorie/low calorie
beverages available to them in school. A few commenters asserted that
milk is produced in 8 ounce and 16 ounce containers and that requiring
a limit of 12 ounce size milk for middle school and high school
students may be problematic. While some commenters recommended larger
portion sizes for all beverages, others recommended smaller portion
sizes, particularly related to juice products. Still other commenters
wished to restrict food colorings and other ingredients in 100 percent
juice. Several commenters indicated that no-calorie/low calorie
beverages should not be allowed in high school due to the inclusion of
non-nutritive sweeteners in such beverages. While about 40 commenters
supported the removal of the time and place restriction on the sale of
other beverages in high school lunchrooms during the meal service,
several commenters objected to the elimination of the restriction and a
few indicated that such beverages should not be sold in any location at
any time in high schools.
A few commenters suggested that USDA use only two grade groups for
the beverage standards--elementary and secondary--to ease
implementation. Some commenters stated that it would be difficult and/
or costly to administer the beverage requirements in combined grade
campuses, such as 7-12 or K-12. In response, USDA appreciates that
implementation could be more difficult in schools with overlapping
grade groups, but considers it important to maintain in the final rule
the three grade groupings included in the IFR. These groupings reflect
the IOM recommendations and appropriately provide additional choices to
high school students, based on their increased level of independence.
USDA
[[Page 50145]]
has provided guidance on this issue and will continue to provide
technical assistance and facilitate the sharing of best practices as
appropriate.
Other Beverages for High School
Most of the comments received on the IFR beverage requirements
dealt with the standards for other beverages allowed in high school. A
number of commenters wanted no-calorie and low-calorie beverages to be
available in elementary and middle schools as well as high schools,
while others opposed these beverages at any grade level. Several
commenters stated that although schools may impose more stringent
standards, schools may choose to sell diet beverages because the sale
of such drinks are profit making. Other commenters indicated that if
schools are not allowed to sell no-calorie/low calorie beverages in
high school students will purchase them elsewhere and bring them to
school.
USDA appreciates the input provided by commenters. The Department
maintains that, given the beverages available in the broader
marketplace and the independence that high school students enjoy, low
calorie/no-calorie beverages may be sold in high schools. However, we
do not agree that such beverages should be available to elementary and
middle school students in school. No changes are made to this standard.
Caffeine
The IFR at Sec. 210.11(l) required that foods and beverages
available in elementary and middle schools to be caffeine free, with
the exception of trace amounts of naturally occurring caffeine
substances. This is consistent with IOM recommendations. The IFR did,
however, permit caffeine for high school students.
Four commenters agreed with the IFR caffeine provisions. A food
industry commenter expressed support for limited beverage choices for
young children but allowing a broader range of products, including
those containing typical amounts of caffeine, in high schools, given
the increased independence of high school students. A trade association
agreed that high school students should have access to beverages that
contain caffeine and asserted that in 1987 FDA found no evidence to
show that the use of caffeine in carbonated beverages would render such
beverages injurious to health. This commenter asserted that its members
provide a wide array of low- and no-calorie beverages to high schools,
some of which contain modest amounts of caffeine, but member companies
have voluntarily instituted policies against the sale of caffeinated
beverages marketed as energy drinks to schools. Two school districts
supported caffeinated beverages for high school students.
Forty-five commenters opposed the IFR caffeine provisions,
generally because it will allow foods and beverages in high school to
contain caffeine. Those commenters were primarily concerned about the
use of caffeinated low-calorie energy drinks that contain unregulated
amounts of caffeine and other additives.
An advocacy organization cited warnings from the American Academy
of Pediatrics and added that aggressive marketing of caffeinated
products is designed to appeal to youth and there is a lack of
information on caffeine content on food labels. Several commenters
opposed allowing the sale of caffeinated drinks in high schools,
particularly drinks with high levels of caffeine and no nutritive
value.
USDA is concerned, as are some commenters, that some foods and
beverages with very high levels of caffeine may not be appropriate to
be sold in schools, even at the high school level. The FDA has not set
a daily caffeine limit for children, but the American Academy of
Pediatrics discourages the consumption of caffeine and other stimulants
by children and adolescents. However, the health effects of caffeine
are currently being considered by the FDA and the IOM. FDA did announce
that it will investigate the safety of caffeine in food products,
particularly its effects on children and adolescents. The FDA
announcement cited a proliferation of products with caffeine that are
being aggressively marketed to children, including ``energy drinks.''
FDA, working with the IOM, convened a public workshop on August 5-6,
2013, to review existing science on safe levels of caffeine consumption
and the potential consequences to children of caffeinated products in
the food supply. The workshop did not result in any recommendations but
a report was produced and may be found at http://iom.nationalacademies.org/Reports/2014/Caffeine-in-Food-and-Dietary-Supplements-Examining-Safety.aspx). USDA will continue to monitor
efforts by FDA to identify standards regarding the consumption of
caffeine by high school aged children.
Therefore, given the lack of authoritative recommendations at this
time, this rule will not prohibit caffeine for high school students.
However, USDA acknowledges commenters' concerns and encourages schools
to be mindful of the level of caffeine in food and beverages when
selecting products for sale in schools, especially when considering the
sale of high caffeine products such as energy drinks. It is also
important to note that local jurisdictions have the discretion to
further restrict the availability of caffeinated beverages should they
wish to do so.
The caffeine provisions as included in the IFR at Sec. 210.11(k)
are not changed.
Non-Nutritive Sweeteners
The IFR did not explicitly address the issue of non-nutritive
sweeteners; however, the rule allowed calorie-free and low-calorie
beverages in high schools, which would implicitly allow beverages
including non-nutritive sweeteners.
Ten commenters addressed the use of non-nutritive sweeteners in
food products. Some commenters opposed allowing artificially sweetened
beverages. For example, some commenters opposed the sale of diet sodas,
whereas others stated that there is little evidence regarding the
advisability of intake of sugar-sweetened beverages versus intake of
non-nutritive sweeteners in beverages. In contrast, some commenters
supported the use of non-nutritive sweeteners. USDA appreciates
commenter input but is not explicitly addressing the use of non-
nutritive sweeteners in the regulatory text of this final rule. Local
program operators can decide whether to offer food and/or beverage
items for sale that include non-nutritive sweeteners.
Other Requirements
Fundraisers
The IFR at Sec. 210.11(b)(4) requires that food and beverage items
sold during the school day meet the nutrition standards for competitive
food but allows for special exemptions for the purpose of conducting
infrequent school-sponsored fundraisers, as specified in the HHFKA. The
provision included in the IFR was that exempt fundraiser frequency
would be determined by the State agency during such periods that
schools are in session. The IFR also required that no specially
exempted fundraiser foods or beverages may be sold in competition with
school meals in the food service area during the meal service.
Ten commenters indicated that USDA should establish the number and
type of fundraisers that are exempt from the competitive food standards
to ensure consistency among States. Other commenters recommended that
the Department set parameters for the minimum and maximum numbers of
[[Page 50146]]
exempt fundraisers based on the size of schools. Thirty comments
suggested that all food fundraisers taking place in schools be required
to adhere to the competitive food standards at all times. Some
commenters indicated that allowing exempt fundraisers will create
confusion among parents, students and staff. A number of commenters
noted that the approval of exempt fundraisers should be governed by the
school wellness policies. Thirty commenters indicated that time and
place restrictions on exempt fundraisers should apply not only to the
food service area during the meal service but to all locations in the
school during the meal service and some suggested placing timeframes on
when such fundraisers may be held (for example: one hour after the
school lunch service is completed).
The final rule retains the requirements regarding the
responsibility of the State agency to determine the frequency of exempt
fundraisers in schools. In addition, the rule continues to stipulate
that there are no limits on the sale of food items that meet the
competitive food requirements (as well as the sale of non-food items)
at school fundraisers. In addition, the Department wishes to remind the
public that the fundraiser standards do not apply to food sold during
non-school hours, weekends and off-campus fundraising events such as
concessions during after-school sporting events.
USDA is confident that State agencies possess the necessary
knowledge, understanding and resources to make decisions about what an
appropriate number of exempt fundraisers in schools should be and that
the most appropriate approach to specifying the standards for exempt
fundraisers is to allow State agencies to set the allowed frequency of
such fundraisers. If a State agency does not specify the exemption
frequency, no fundraiser exemptions may be granted. It is not USDA's
intent that the competitive food standards apply to fundraisers in
which the food sold is clearly not for consumption on the school campus
during the school day. It is also important to note that LEAs may
implement more restrictive competitive food standards, including those
related to the frequency with which exempt fundraisers may be held in
their schools, and may impose further restrictions on the areas of the
schools and the times during which exempt fundraisers may occur in the
schools during the school day.
In addition, USDA has provided guidance on fundraisers in response
to a variety of specific questions received during implementation and
this guidance may be found in Policy Memo SP 23-2014(V.3) available on
our Web site at http://www.fns.usda.gov/nslp/policy.
In summary, the exempt fundraiser provisions contained in Sec.
210.11(b)(4) of the IFR are unchanged and the final rule continues to
specify that competitive food and beverage items sold during the school
day must meet the nutrition standards for competitive food, and that a
special exemption is allowed for the sale of food and/or beverages that
do not meet the competitive food standards for the purpose of
conducting an infrequent school-sponsored fundraiser. Such specially
exempted fundraisers must not take place more than the frequency
specified by the State agency during such periods that schools are in
session. Finally, no specially exempted fundraiser foods or beverages
may be sold in competition with school meals in the food service area
during the meal service.
Availability of Water During the Meal Service
The IFR codified a provision of the HHFKA that requires schools
participating in the NSLP to make free, potable water available to
children in the place lunches are served during the meal service. Just
over 40 comments addressed the part of the IFR that requires schools
participating in the NSLP to make free, potable water available to
children in the place lunches are served during the meal service and in
the cafeteria during breakfast meal service.
Many of these commenters, including advocacy organizations,
professional associations and individual commenters, expressed support
for the potable water requirement. Two advocacy organizations commented
that water has zero calories and is a healthy alternative to sugary
drinks. These commenters stated that making the water free and easily
accessible may help combat obesity and promote good health. Similarly,
one individual commenter stated that the free, potable water
requirement will help reduce the purchase of other drinks that are high
in added sugars. A few individual commenters remarked that low-income
students do not have the luxury of bringing or buying water bottles or
even have access to clean running water outside of school, and free
potable water is imperative to these students. Two individual
commenters recommended that free potable water be available during
breakfast, lunch, and all break and recess times regardless of where
food is being served.
Section 210.10(a)(1) of the final rule continues to require that
schools make potable water available and accessible without restriction
to children at no charge in the place where lunches are served during
the meal service. In addition, Sec. 220.8(a)(1) requires that when
breakfast is served in the cafeteria, schools must make potable water
available and accessible without restriction to children at no charge.
The Department continues to encourage schools to make potable water
available without restriction at all meal and snack services when
possible.
Recordkeeping
The IFR at Sec. 210.11(b)(2), outlined the recordkeeping
requirements associated with competitive foods. Local educational
agencies and school food authorities would be required to maintain
records documenting compliance with the requirements. Local educational
agencies would be responsible for maintaining records documenting
compliance with the competitive food nutrition standards for food sold
in areas that are outside of the control of the school food service
operation. Local educational agencies also would be responsible for
ensuring any organization designated as responsible for food service at
the various venues in the school (other than the school food service)
maintains records documenting compliance with the competitive food
nutrition standards. The school food authority would be responsible for
maintaining records documenting compliance with the competitive food
nutrition standards for foods sold in meal service areas during meal
service periods. Required records would include, at a minimum,
receipts, nutrition labels and/or product specifications for the items
available for sale.
About 120 commenters expressed concerns about recordkeeping,
monitoring and compliance. Twenty commenters specifically addressed
recordkeeping. Some of those commenters suggested that recordkeeping is
costly, unrealistic and/or not necessary. Yet others recommended
minimizing the recordkeeping on non-school groups. A number of
commenters representing school food service were concerned that the
local educational agency would require school food service to be
responsible for recordkeeping on behalf of school food service as well
as other entities/organizations within the local educational agency.
Additionally, they were concerned that school food service could not
affect the requirements throughout the local educational agency
[[Page 50147]]
since they have no authority over other school organizations.
The Department appreciates that this regulation may have created
some new challenges initially, as schools implemented the IFR and took
steps to improve the school nutrition environment. Such challenges may
be ongoing for some schools. However, maintaining a record that
substantiates that the food items available for sale in the schools
meet the standards is essential to the integrity of the competitive
food standards. To determine whether a food item is an allowable
competitive food, the local educational agency designee(s) must assess
the nutritional profile of the food item. This may be accomplished by
evaluating the product Nutrition Facts Label and/or using the Alliance
for a Healthier Generation Calculator to do so and retaining a copy of
that evaluation in the files, retaining receipts for the food items
ordered or purchased for secondary sale at the various venues at the
schools, etc. Absent an evaluation of the nutritional profile of the
competitive foods available for sale at the schools, the local
educational agency has no way of knowing whether a food item meets the
nutrition standards set forth in this rule. The recordkeeping
requirement simply requires the local educational agency to retain the
reviewed documentation (e.g., the nutrition labels, receipts, and/or
product specifications) in their files.
Commenters also expressed concern about the designation of
responsibility for this activity. As stated in the IFR, the Department
does not expect the responsibility to rest solely with the nonprofit
school food service. School food service personnel are expected to have
a clear understanding of the nutrition profile of foods purchased using
nonprofit school food service funds for reimbursable meals, a la carte
offerings, etc. Their authority and responsibilities are typically
limited to the nonprofit school food service. Local educational
agencies are responsible for ensuring that all entities involved in
food sales within a school understand that the local educational agency
as a whole must comply with these requirements.
As stated in the IFR, the Department continues to recommend that
cooperative duties associated with the sale of competitive foods be
coordinated and facilitated by the local school wellness policy
designee(s). Section 204 of the HHFKA amended the NSLA by adding
section 9A (42 U.S.C. 1758b) which requires each local educational
agency to: (a) Establish a local school wellness policy which includes
nutrition standards for all foods available on each school campus, and
(b) designate one or more local educational agency officials or school
officials, to ensure that each school complies with the local school
wellness policy. State agencies were advised of the section 204
requirements in FNS Memorandum, Child Nutrition Reauthorization 2010:
Local School Wellness Policies, issued July 8, 2011 (SP 42-2011). In
addition, the Department published a proposed rule titled Local School
Wellness Policy Implementation Under the Healthy, Hunger Free Kids Act
of 2010 on February 26, 2014 at 79 FR 10693. Comments were submitted by
the public and those comments are being analyzed for the development of
an upcoming final rule.
The Department believes, and the experience of many operators
confirms, that if the LEA local school wellness designee(s), school
food service, and other entities and groups involved with the sale of
food on the school campus during the school day work together to share
information on allowable foods and coordinate recordkeeping
responsibilities, the result is the successful implementation and
maintenance of a healthy school environment. As always, State agencies
and the Department will provide technical assistance to facilitate
ongoing implementation of the competitive food nutrition standards.
Therefore, there are no changes to the recordkeeping requirements
and Sec. 210.11(b)(2) of the IFR is affirmed.
Compliance and Monitoring
Section 210.18(h)(6) requires State agencies to ensure that local
educational agencies comply with the nutrition standards for
competitive food and retain documentation demonstrating compliance with
the competitive food service and standards.
As indicated above, about 120 commenters submitted comments related
to recordkeeping, monitoring and compliance. A number of commenters,
largely school food service personnel, expressed concerns about how
monitoring would occur for foods sold by groups outside of the school
food service. Some commenters believed technical assistance would be
insufficient and raised questions about means to effect compliance.
Other commenters expressed concerns about the need to train and educate
non-school food service personnel as to how to comply with the
regulations. Several State agencies, school districts and individuals
requested that the SFA not be held accountable for compliance issues
outside of the control of the SFA.
The Department agrees that training will be needed to ensure
compliance with the nutrition standards. As mentioned under the
discussion of Recordkeeping above, the Department envisions local
educational agency designees, potentially the local school wellness
coordinator(s), taking the lead in developing performance or compliance
standards and training for all local educational personnel tasked with
selling competitive food on the school campus during the school day.
The Department and State agencies will also offer training to ensure
local educational agencies are able to comply in the most efficient
manner possible.
The Department published a proposed rule titled Administrative
Reviews in the School Nutrition Programs on May 11, 2015 (80 FR 26846)
addressing an updated administrative review process that includes these
new monitoring responsibilities. This rule, together with
administrative review guidance, provides information regarding the
proposed conduct and scope of reviews, and the monitoring and records
review that will be conducted with regard to competitive foods.
Currently, USDA is reviewing the comments received from the public on
the proposed rule in preparation for the development of an implementing
rule.
The Department would like to assure commenters that we see
technical assistance and training as the first approach to non-
compliance; however, we recognize that egregious, repeated cases of
non-compliance may require a more aggressive approach. In this regard,
section 303 of the HHFKA amended section 22 of the NSLA (42 U.S.C.
1769c) to provide the Department with the authority to impose fines
against any school or school food authority repeatedly failing to
comply with program regulations. This authority will be addressed in a
proposed rule dealing with a number of integrity issues related to
local educational agencies administering the Child Nutrition Programs
which is currently under development. Interested parties will have an
opportunity to comment on the proposed integrity rule.
Special Situations/Applicability
This rule continues to require that all local educational agencies
and schools participating in the NSLP and SBP meet the nutrition
standards for competitive foods sold to students on the school campus
during the school day. Several questions have been received regarding
the applicability of these standards to after school programs operated
in
[[Page 50148]]
schools that participate in NSLP/Child and Adult Care Food Program
(CACFP). The Department wishes to clarify that such programs are
required to comply with their specified meal patterns. Only if food is
sold to their program participants outside of their meal pattern would
the competitive foods standards be applicable for 30 minutes after the
end of the official school day, consistent with the definition of
School day specified in Sec. 210.11(a)(5).
Forty comments addressed impacts of the IFR on culinary training
programs. These commenters urged for complete exemption from the
competitive food standards for foods prepared and sold as part of
culinary education programs. In contrast, a school district, school
food service staff, and other individual commenters urged USDA to apply
the competitive food standards to foods sold to students during the
school day by culinary arts programs.
The Department addressed the applicability of the competitive foods
regulation on culinary arts programs in Policy Memo SP 40-2014,
published on April 22, 2014. That memo recognized that culinary
education programs providing students with technical career training
operate in some schools nationwide. Some of those culinary education
programs operate food service outlets that sell foods to students,
faculty, or others in the community, with a minority of programs doing
so during the school day. The memo also clarified that the competitive
foods nutrition standards have no impact on the culinary education
programs' curriculum in schools, nor do they have any impact on foods
sold to adults at any time or to students outside of the school day.
However, to the extent that such programs are selling food to students
on campus during the school day, the statutory applicability of the
Smart Snacks nutrition standards to all foods sold outside of the
School meals programs is clear. Section 12(l)(4)(J) of the NSLA (42
U.S.C. 1760(l)(4)(J), prohibits the Secretary from granting a waiver
that relates to the requirements of the NSLA, the CNA, or any
regulation issued under either statute with regard to the sale of foods
sold outside of the school meal programs. The nutrition standards
included in the final rule continue to apply to all foods sold to
students on the school campus during the school day, including food
prepared and/or sold by culinary education programs.
Related Information
Implementation
The competitive food provisions contained in the IFR were
implemented by State agencies and local educational agencies on July 1,
2014. Changes made in this final rule may be implemented as specified
in the DATES section of this preamble. While the total fat standard
remains in place, additional comments on the interim final total fat
standard are being accepted and must be received as specified in the
DATES section of this preamble. The saturated fat and trans fat
standards are finalized in this rule. This final rule removes Sec.
210.11a and its corresponding Appendix B, which references the sale of
foods of minimal nutritional value, since those standards were
eliminated as of July 1, 2014, the date that competitive food standards
were implemented in their place. Similar changes are made to the
breakfast program regulations at 7 CFR part 220.
Procedural Matters
Executive Order 12866 and Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This Final rule has been designated an ``economically significant
regulatory action'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed by the Office of Management and
Budget.
Regulatory Flexibility Analysis
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act of 1980 (5 U.S.C.601-612). The rule directly
regulates the 54 State education agencies and 3 State Departments of
Agriculture that operate the NSLP pursuant to agreements with USDA's
Food and Nutrition Service. While State agencies are not considered
small entities as State populations exceed the 50,000 threshold for a
small government jurisdiction, many of the service-providing
institutions that work with them to implement the program do meet
definitions of small entities.
The requirements established by this final rule will apply to
school districts, which meet the definitions of ``small governmental
jurisdiction'' and other establishments that meet the definition of
``small entity'' in the Regulatory Flexibility Act. The Regulatory
Flexibility Act analysis is published as part of the docket (FNS-2011-
0019) on www.regulations.gov.
Regulatory Impact Analysis Summary
As required for all rules that have been designated as significant
by the Office of Management and Budget, a Regulatory Impact Analysis
(RIA) was developed for this final rule A summary is presented below.
The full RIA is published as part of the docket (FNS-2011-0019) on
www.regulations.gov.
Need for Action
The final rule responds to two provisions of the Healthy, Hunger-
Free Kids Act of 2010. Section 208 of HHFKA amended Section 10 of the
Child Nutrition Act of 1966 to require the Secretary to establish
science-based nutrition standards for all foods sold in schools during
the school day. In addition, the amendments made by section 203 of the
HHFKA amended section 9(a) of the NSLA (42 U.S.C. 1758(a)) to require
that schools participating in the NSLP make potable water available to
children at no charge in the place where meals are served during the
meal service. This is a nondiscretionary requirement of the HHFKA that
became effective October 1, 2010, and was required to be implemented by
August 27, 2013.
Response to Comments
The full Regulatory Impact Analysis includes a brief discussion of
comments submitted by school officials, public health organizations,
industry representatives, parents, students, and other interested
parties on the costs and benefits of the final rule submitted. The
analysis also contains a discussion of how USDA modified the final rule
in response, and the effect of those modifications on the costs and
benefits of the rule.
Benefits
The primary purpose of the rule is to ensure that nutrition
standards for competitive foods are consistent with those used for the
NSLP and SBP, holding competitive foods to standards similar to the
rest of foods available to students during the school day. These
standards, combined with recent improvements in school meals, will help
promote diets that contribute to students' long-term health and well-
[[Page 50149]]
being. In addition, these standards continue to support a healthy
school environment and the efforts of parents to promote healthy
choices for children at home and at school.
Obesity has become a major public health concern in the U.S., with
one-third of U.S. children and adolescents now considered overweight or
obese (Beydoun and Wang 2011\2\), with current childhood obesity rates
four times higher in children ages six to 11 than they were in the
early 1960s (19 vs. 4 percent), and three times higher (17 vs. 5
percent) for adolescents ages 12 to 19.\3\ Research focused
specifically on the effects of obesity in children indicates that obese
children feel they are less capable, both socially and athletically,
less attractive, and less worthwhile than their non-obese
counterparts.\4\ Further, there are direct economic costs due to
childhood obesity: $237.6 million (in 2005 dollars) in inpatient costs
\5\ and annual prescription drug, emergency room, and outpatient costs
of $14.1 billion.\6\
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\2\ Beydoun, M.A. and Y. Wang. 2011. Socio-demographic
disparities in distribution shifts over time in various adiposity
measures among American children and adolescents: What changes in
prevalence rates could not reveal. International Journal of
Pediatric Obesity, 6:21-35. As cited in Food Labeling: Calorie
Labeling of Articles of Food in Vending Machines NPRM. 2011.
Preliminary Regulatory Impact Analysis, Docket No. FDA-2011-F-0171.
\3\ Ogden et al. Prevalence of Obesity Among Children and
Adolescents: United States, Trends 1963-1965 Through 2007-2008. CDC-
NHCS, NCHS Health E-Stat, June 2010. On the web at http://www.cdc.gov/nchs/data/hestat/obesity_child_07_08/obesity_child_07_08.htm.
\4\ Riazi, A., S. Shakoor, I. Dundas, C. Eiser, and S.A.
McKenzie. 2010. Health-related quality of life in a clinical sample
of obese children and adolescents. Health and Quality of Life
Outcomes, 8:134-139.Samuels & Associates. 2006. Competitive Foods.
Policy Brief prepared by Samuels & Associates for The California
Endowment and Robert Wood Johnson Foundation. Available at: http://www.healthyeatingactivecommunities.org/downloads/
\5\ Trasande, L., Y. Liu, G. Fryer, and M. Weitzman. 2009.
Trends: Effects of Childhood Obesity on Hospital Care and Costs,
1999-2005. Health Affairs, 28:w751-w760.
\6\ Cawley, J. 2010. The Economics of Childhood Obesity. Health
Affairs, 29:364-371. As cited in Food Labeling: Calorie Labeling of
Articles of Food in Vending Machines NPRM. 2011. Preliminary
Regulatory Impact Analysis, Docket No. FDA-2011-F-0171.
---------------------------------------------------------------------------
Because the factors that contribute both to overall food
consumption and to obesity are so complex, it is not possible to define
a level of disease or cost reduction expected to result from
implementation of the rule. There is some evidence, however, that
competitive food standards can improve children's dietary quality.
Taber, Chriqui, and Chaloupka (2012 \7\) concluded that
California high school students consumed fewer calories, less fat, and
less sugar at school than students in other States. Their analysis
``suggested that California students did not compensate for consuming
less within school by consuming more elsewhere'' (p. 455).
---------------------------------------------------------------------------
\7\ Taber, D.R., J.F. Chriqui, and F. J. Chaloupka. 2012.
Differences in Nutrient Intake Associated With State Laws Regarding
Fat, Sugar, and Caloric Content of Competitive Foods. Archives of
Pediatric & Adolescent Medicine, 166:452-458.
---------------------------------------------------------------------------
In an assessment of the reach and effectiveness of
childhood obesity strategies, Gortmaker et al. \8\ project that
implementing nutrition standards for all foods and beverages sold in
schools outside of reimbursable school meals will prevent an estimated
345,000 cases of childhood obesity in 2025 (p. 1937).
---------------------------------------------------------------------------
\8\ Gortmaker SL, Claire Wang Y, Long MW, Giles CM, Ward ZJ,
Barrett JL, Kenney EL, Sonneville KR, Afzal AS, Resch SC, Cradock
AL., Health Affairs, 34, no. 11 (2015).
---------------------------------------------------------------------------
Schwartz, Novak, and Fiore, (2009 \9\) determined that
healthier competitive food standards decreased student consumption of
low nutrition items with no compensating increase at home.
---------------------------------------------------------------------------
\9\ Schwartz, M.B., S.A. Novak, and S.S. Fiore. 2009. The Impact
of Removing Snacks of Low Nutritional Value from Middle Schools.
Health Education & Behavior, 36:999-1011.
---------------------------------------------------------------------------
Researchers at Healthy Eating Research and Bridging the
Gap found that ``[t]he best evidence available indicates that policies
on snack foods and beverages sold in school impact children's diets and
their risk for obesity. Strong policies that prohibit or restrict the
sale of unhealthy competitive foods and drinks in schools are
associated with lower proportions of overweight or obese students, or
lower rates of increase in student BMI'' (Healthy Eating Research and
Bridging the Gap, 2012, p. 3 \10\).
---------------------------------------------------------------------------
\10\ Healthy Eating Research and Bridging the Gap. 2012.
Influence of Competitive Food and Beverage Policies on Children's
Diets and Childhood Obesity. Available at http://www.healthyeatingresearch.org/images/stories/her_research_briefs/Competitive_Foods_Issue_Brief_HER_BTG_7-2012.pdf
---------------------------------------------------------------------------
A comprehensive assessment of the evidence on the importance of
competitive food standards conducted by the Pew Health Group concluded
that a national competitive foods policy would increase student
exposure to healthier foods, decrease exposure to less healthy foods,
and would also likely improve the mix of foods that students purchase
and consume at school. Researchers concluded that these kinds of
changes in food exposure and consumption at school are important
influences on the overall quality of children's diets.
Although nutrition standards for foods sold at school alone may not
be a determining factor in children's overall diets, they are critical
to providing children with healthy food options throughout the entire
school day. Thus, these standards will help to ensure that the school
nutrition environment does all that it can to promote healthy choices,
and help to prevent diet-related health problems. Ancillary benefits
could derive from the fact that improving the nutritional value of
competitive foods may reinforce school-based nutrition education and
promotion efforts and contribute significantly to the overall
effectiveness of the school nutrition environment in promoting
healthful food and physical activity choices.\11\
---------------------------------------------------------------------------
\11\ Pew Health Group and Robert Wood Johnson Foundation. 2012.
Heath Impact Assessment: National Nutrition Standards for Snack and
a la Carte Foods and Beverages Sold in Schools. Available online:
http://www.pewhealth.org/uploadedFiles/PHG/Content_Level_Pages/Reports/KS%20HIA_FULL%20Report%20062212_WEB%20FINAL-v2.pdf.
---------------------------------------------------------------------------
Costs
While there have been numerous success stories, best practices, and
innovative practices, it is too early to definitively ascertain the
overall impact to school revenue. The changes and technical
clarifications in the final rule do not change the methodology of the
cost benefit analysis from the methodology used in the interim final
regulatory impact analysis, however the estimates are updated using the
most recent data available to assess the impacts to revenue and to
account for the potential variation in implementation and
sustainability experiences across SFAs and schools.
The limited information available indicates that many schools have
successfully introduced competitive food reforms with little or no loss
of revenue and in a few cases, revenues from competitive foods
increased after introducing healthier foods. In some of the schools
that showed declines in competitive food revenues, losses from reduced
sales were fully offset by increases in reimbursable meal revenue. In
other schools, students responded favorably to the healthier options
and competitive food revenue declined little or not at all.
But not all schools that adopted or piloted competitive food
standards fared as well. Some of the same studies and reports that
highlight school success stories note that other schools sustained some
loss after implementing similar standards. While in some cases these
were short-term losses, even in the long-
[[Page 50150]]
term the competitive food revenue lost by those schools was not offset
(at least not fully) by revenue gains from the reimbursable meal
programs.
Our analysis examines the possible effects of the rule on school
revenues from competitive foods and the administrative costs of
complying with the rule's competitive foods provisions. The analysis
uses available data to construct model-based scenarios that different
schools may experience in implementing the rule. While these vary in
their impact on overall school food revenue, each scenario's estimated
impact is relatively small (+0.5 percent to -1.3 percent). That said,
the data behind the scenarios are insufficient to assess the frequency
or probability of schools experiencing the impacts shown in each.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a
cost/benefit analysis, for proposed and final rules with Federal
mandates that may result in expenditures by State, local, or Tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires the Department to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, more cost-effective or least burdensome
alternative that achieves the objectives of the rule. Because data is
not available to meaningfully estimate the quantitative impacts of this
rule on school food authority revenues, we are not certain that this
rule is subject to the requirements of sections 202 and 205 of the
UMRA. That said, it is possible that the rule's requirements could
impose costs on State, local, or Tribal governments or to the private
sector of $100 million or more in any one year. FNS therefore conducted
a regulatory impact analysis that includes a cost/benefit analysis
substantially meeting the requirements of sections 202 and 205 of the
UMRA.
Executive Order 12372
The NSLP is listed in the Catalog of Federal Domestic Assistance
under No. 10.555. The SBP is listed in the Catalog of Federal Domestic
Assistance under No. 10.553. For the reasons set forth in the final
rule in 7 CFR part 3015, subpart V and related notice (48 FR 29115,
June 24, 1983), these programs are included in the scope of Executive
Order 12372, which requires intergovernmental consultation with State
and local officials.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under section (6)(b)(2)(B) of Executive Order 13132. USDA
has considered the impact of this rule on State and local governments
and has determined that this rule does not have federalism
implications. This rule does not impose substantial or direct
compliance costs on State and local governments. Therefore, under
Section 6(b) of the Executive Order, a federalism summary impact
statement is not required.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is intended to have preemptive effect with
respect to any State or local laws, regulations or policies which
conflict with its provisions or which would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless specified in the DATES section of the final rule. Prior to any
judicial challenge to the provisions of this rule or the application of
its provisions, all applicable administrative procedures must be
exhausted.
Civil Rights Impact Analysis
FNS has reviewed this rule in accordance with Departmental
Regulations 4300-4, ``Civil Rights Impact Analysis,'' and 1512-1,
``Regulatory Decision Making Requirements.'' After a careful review of
the rule's intent and provisions, FNS has determined that this rule is
not intended to limit or reduce in any way the ability of protected
classes of individuals to receive benefits on the basis of their race,
color, national origin, sex, age or disability nor is it intended to
have a differential impact on minority owned or operated business
establishments and woman-owned or operated business establishments that
participate in the Child Nutrition Programs.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), this final rule does not contain substantive changes to
information collection requirements that require additional approval by
OMB. The paperwork requirements for this final rule were previously
approved by the Office of Management and Budget (OMB) for the interim
final rule under OMB control #0584-0576 and merged into #0584-0006.
E-Government Act Compliance
The Food and Nutrition Service is committed to complying with the
E-Government Act of 2002, to promote the use of the Internet and other
information technologies to provide increased opportunities for citizen
access to Government information and services and for other purposes.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the federal government and Indian Tribes. In the spring of 2011, FNS
offered opportunities for consultation with Tribal officials or their
designees to discuss the impact of the Healthy, Hunger-Free Kids Act of
2010 on tribes or Indian Tribal governments. The consultation sessions
were coordinated by FNS and held on the following dates and locations:
1. HHFKA Webinar & Conference Call--April 12, 2011
2. Mountain Plains--HHFKA Consultation, Rapid City, SD--March 23, 2011
3. HHFKA Webinar & Conference Call--June, 22, 2011
4. Tribal Self-Governance Annual Conference in Palm Springs, CA--May 2,
2011
5. National Congress of American Indians Mid-Year Conference,
Milwaukee, WI--June 14, 2011
The five consultation sessions in total provided the opportunity to
address Tribal concerns related to school meals. There were no comments
about this regulation during any of the
[[Page 50151]]
aforementioned Tribal consultation sessions.
Currently, FNS provides regularly scheduled quarterly consultation
sessions as a venue for collaborative conversations with Tribal
officials or their designees. The most recent specific discussion of
the Nutrition Standards for All Foods Sold in Schools rule was included
in the consultation conducted on August 19, 2015. No questions or
comments were raised specific to this rulemaking at that time.
Reports from these consultations are part of the USDA annual
reporting on Tribal consultation and collaboration. FNS will respond in
a timely and meaningful manner to Tribal government requests for
consultation concerning this rule.
List of Subjects
7 CFR Part 210
Grant programs-education; Grant programs-health; Infants and
children; Nutrition; Reporting and recordkeeping requirements; School
breakfast and lunch programs; Surplus agricultural commodities.
7 CFR Part 220
Grant programs-education; Grant programs-health; Infants and
children; Nutrition; Reporting and recordkeeping requirements; School
breakfast and lunch programs.
Accordingly, for the reasons set forth in the preamble, 7 CFR parts
210 and 220 are amended as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
0
1. The authority citation for 7 CFR part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
0
2. In Sec. 210.11:
0
a. Revise paragraph (a)(3);
0
b. Add paragraph (a)(6);
0
c. Remove paragraph (c)(2)(v);
0
d. Paragraph (c)(2)(vi) is redesignated as (c)(2)(v);
0
e. Revise paragraph (d);
0
f. Add paragraph (f)(3)(iv);
0
g. Revise the heading and the first sentence of paragraph (i); and
0
h. Revise paragraph (j);
The revisions and additions read as follows:
Sec. 210.11 Competitive food service and standards.
(a) * * *
(3) Entr[eacute]e item means an item that is intended as the main
dish and is either:
(i) A combination food of meat or meat alternate and whole grain
rich food; or
(ii) A combination food of vegetable or fruit and meat or meat
alternate; or
(iii) A meat or meat alternate alone with the exception of yogurt,
low-fat or reduced fat cheese, nuts, seeds and nut or seed butters, and
meat snacks (such as dried beef jerky); or
(iv) A grain only, whole-grain rich entr[eacute]e that is served as
the main dish of the School Breakfast Program reimbursable meal.
* * * * *
(6) Paired exempt foods mean food items that have been designated
as exempt from one or more of the nutrient requirements individually
which are packaged together without any additional ingredients. Such
``paired exempt foods'' retain their individually designated exemption
for total fat, saturated fat, and/or sugar when packaged together and
sold but are required to meet the designated calorie and sodium
standards specified in Sec. Sec. 210.11(i) and (j) at all times.
* * * * *
(d) Fruits and vegetables. (1) Fresh, frozen and canned fruits with
no added ingredients except water or packed in 100 percent fruit juice
or light syrup or extra light syrup are exempt from the nutrient
standards included in this section.
(2) Fresh and frozen vegetables with no added ingredients except
water and canned vegetables that are low sodium or no salt added that
contain no added fat are exempt from the nutrient standards included in
this section.
* * * * *
(f) * * *
(3) * * *
(iv) Whole eggs with no added fat are exempt from the total fat and
saturated fat standards but are subject to the trans fat, calorie and
sodium standards.
* * * * *
(i) Calorie and sodium content for snack items and side dishes sold
as competitive foods. Snack items and side dishes sold as competitive
foods must have not more than 200 calories and 200 mg of sodium per
item as packaged or served, including the calories and sodium contained
in any added accompaniments such as butter, cream cheese, salad
dressing, etc., and must meet all of the other nutrient standards in
this section. * * *
(j) Calorie and sodium content for entr[eacute]e items sold as
competitive foods. Entr[eacute]e items sold as competitive foods, other
than those exempt from the competitive food nutrition standards in
paragraph (c)(3)(i) of this section, must have not more than 350
calories and 480 mg of sodium per item as packaged or served, including
the calories and sodium contained in any added accompaniments such as
butter, cream cheese, salad dressing, etc., and must meet all of the
other nutrient standards in this section.
* * * * *
Sec. 210.11a [Removed]
0
3. Section 210.11a is removed.
Appendix B to Part 210 [Removed]
0
4. Appendix B to part 210 is removed.
PART 220--SCHOOL BREAKFAST PROGRAM
0
5. The authority citation for 7 CFR part 220 continues to read as
follows:
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
Sec. 220.12a [Removed]
0
6. Remove Sec. 220.12a.
Appendix B to Part 220 [Removed and Reserved]
0
7. Remove and reserve Appendix B to part 220.
Dated: June 21, 2016.
Kevin W. Concannon,
Under Secretary, Food, Nutrition, and Consumer Services.
[FR Doc. 2016-17227 Filed 7-28-16; 8:45 am]
BILLING CODE 3410-30-P