Stricter Dietary Guidelines, More Economic Protectionism in Proposed Rules for Child Lunch Program
Under the suggestions, the USDA would cap the amount of non-domestic sourced food schools could purchase each year in an effort to promote its Buy American provision.
On February 7 the United States Department of Agriculture’s (USDA) Food and Nutrition Services (FNS) program released proposed rules changes to dietary requirements for school lunch programs. Also included in the proposed changes is a new cap on the amount of non-domestic food schools can purchase.
The proposed rulemaking, which targets the amount of sugar, salt, and whole grains in school lunches, integrates a transitional standards rule released by the USDA in February 2022. The agency’s Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium was intended to “support schools after more than two years of serving meals under pandemic conditions” and was the first step in a “multi-stage approach to strengthen the school meal nutrition standards.”
Included in the 2022 transition standards were rules that allowed for the sale of flavored, low-fat milk, required 80 percent of weekly grains in school lunches and breakfasts to be whole grains, and created limits on sodium in school lunches and breakfasts.
The proposed new rules take these requirements further, and also would create limits on added sugars in school meals, which would apply both to limits on specific products and to limits on weekly meal offerings.
The USDA is also proposing two alternatives for new standards on milk. Currently, schools are allowed to offer flavored and unflavored fat-free and low fat milk. Nonflavored milk is required to be sold at each school meal.
Under the first proposal, flavored milk could only be offered to high school students, effective for the 2025-2026 school year. Children in grades K-8 would only be offered unflavored milk. The second proposal would leave the existing standard in place, allowing school children of all ages to consume flavored milk.
The agency claims taking flavored milk away from younger school children would “reduce exposure to added sugars and would promote the more nutrient-dense choice of unflavored milk for young children when their tastes are being formed.” The new guidelines reduce the amount of added sugar allowed in milk sold in school, regardless of whether it is flavored or not.
The USDA also offered two proposals on grain requirements for school meals. Under the first, the current requirement that 80 percent of weekly grains in school meals be grain-rich would be maintained. The second option seeks public input about requiring all grains offered in school meals to be whole-grain rich, except for one day per week when schools could offer enriched grains.
A proposed standard for reducing weekly sodium in school meals would require a 10 percent reduction of existing limits per school year beginning in 2025-2026. That reduction would occur for three simultaneous years.
Breakfasts would also face a 10 percent sodium reduction, but this would only apply over two years because “school breakfasts are closer to meeting dietary recommendations for sodium than school lunches.” The first reduction would take place in school year 2025-2026.
The agency also plans to recommend sodium limits for products “such as condiments and sandwiches,” which it says are “top contributors of sodium in school lunch.”
It is also proposing changes that would allow traditional foods to be served in reimbursable school meals. “USDA expects that this regulatory change to explicitly mention traditional foods will help to address the perception that traditional foods are not creditable, draw attention to the option to serve traditional foods, and support local efforts to incorporate traditional foods into school meals.” the agency notes.
The agency does not have a definition of the term “traditional food” but adopts the definition found in the Agriculture Improvement Act of 2014, which defines traditional food as that traditionally prepared by Native American tribes. The agency may adjust this definition in its final rule.
The proposals also include several callouts for ethnic and religious preferences.
“The meal pattern standards allow a wide variety of foods to be served to meet the meal component requirements, including foods traditional to Native Americans and Alasksa Native communities.” the USDA notes. But the agency warns that efforts to meet student preferences “must follow the meal pattern standards outlined in regulation.” The agency further notes that it allows some US territories, including Puerto Rico, to serve products such as yams to count towards required grain components. This is done not only to “accomodate cultural food preferences” but also to “address product availability and cost concerns in these areas.”
But new proposed requirements for the Buy American provision in the school meals program seem likely to aggravate existing issues around cost and availibility faced by schools regardless of where they’re located.
Since 1998, the federal government has required school food authorities to purchase domestically-produced commodities and products for school breakfasts and lunch “to the maximum extent possible.”
That language is ambiguous, as the agency notes, which is why it is proposing to “clarify and strengthen” the provision.
But the reason the provision has weaknesses is because enforcing it is onerous and challenging. In its proposed rules, the agency mentions public comment collected through an August 2021 requirest for information on the Buy American provision, notinthe comments it received were largely positive.
“Respondents mentioned the importance of the Buy American provision and its role in encouraging the consumption of domestic food. They emphasized that the Buy American provision supports American agriculture and the domestic economy.” the agency noted.
It even attempts to spin negative comments in a positive light. “However, even while expressing support, many respondents made it clear that challenges exist in implementation of the Buy American provision. The most frequently mentioned themes in these comments included difficulties managing exceptions to the regulation and the time-consuming paperwork required to document exceptions. State agencies and school food authorities cited challenges with managing the documentation and monitoring use of exceptions during reviews.” the agency continues.
USDA guidance from 2017 allows schools to disregard the Buy American provision to a limited extent if a “product is not produced or manufactured in the U.S." in sufficient and reasonably available quantities of a satisfactory quality” or if “competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product.”
Before claiming an exception, schools are supposed to consider whether other products could be subtituted, bids are being solicited at the bst time of year, and several other factors.
Schools don’t have to request a waiver to claim an exception—there is no dollar amount or percentage that triggers an exception—but do have to document and justify their use of exceptions.
The FNS found in an unpublished three year study that 26 percent of school food authorities used a Buy American exception during the 2017-2018 school year. The study found 88 percent of those who reported using an exception did so because of a product’s limited supply. 43 percent cited an increase of cost in domestic products and 21 percent cited quality issues.
The study further found that nearly all exceptions during that time period were used to purchase non-domestic fruits. Roughly half purchased non-domestic vegetables.
“On average, products purchased under exceptions made up 8.5 percent of total food purchase expenditures among school food authorities that used an exception to the Buy American provision in SY 2017-2018.” the agency notes.
In response to this, the agency proposing to add a “limit to the resources that can be used for non-domestic purchases.”
“This new limit is lower than the reported expenditures that are currently used for non-domestic products; therefore, this cap will encourage schools that utilize an exception to reduce the amount of non-domestic purchases currently made by substituting domestic product in situations where the school may be purchasing non-domestic items.” the agency claims.
It is also proposing to cap the amount of non-domestic product a school can buy in a year to 5 percent.
“This cap is based on a USDA study which found that on average, among school food authorities that used one of the limited exceptions to the Buy American provision in SY 2017-2018, products purchased under exceptions made up 8.5 percent of their total food purchase expenditures. In this study only 26 percent of school food authorities used an exception which means a majority of school food authorities are able to fully make domestic purchases and therefore do not need to utilize either of the limited exception.” the agency states.
Existing exceptions to the Buy American provision will remain in place but will be capped at 5 percent. The proposed rule also clarifies that it is a school food authority’s provision to determine whether an exception applies. Schools will have to maintain documentaion proving they used an exception for an existing reason and that exceptions do not exceed 5 percent of total annual food costs.
The agency is calling for further public comments in regards to its proposal and requests specific input on several questions, including whether the 5 percent cap will reduce the amount of non-domestic products that can be purchased.
Given that the agency’s own survey found that the top two reasons schools claim an exception—because of limited supply and increased cost—are both valid and the result of market forces unimpacted by the proposed cap—the answer to this seems to be obvious. Imposing the cap does not mean farmers will suddenly increase their supply or that food will become cheaper. The reason schools bought non-American products remain.
In addition, the agency noted its public feedback included criticisms of the difficulty of tracking paperwork as part of the Buy American provision. These new requirements would only add to them.
Another proposed rule change to this effect would require schools to include language about the Buy American provision in “documeted procurement procedures, solicitations, and contracts for food and food products procured using informal and formal procurement methods, and in awarded contracts.” State agencies would have to verify that this has been done.
The agency expects to issue a final rule for the 2024-2025 school year. Public comment on the proposed rules is due by April 10, 2023.