CDE Competitive Food Letter to USDA FNS
April 9, 2013
Julie Brewer, Chief
Policy and Program Development Branch
Child Nutrition Division
Food and Nutrition Service
3101 Park Center Drive
Alexandria, VA 22302
Subject: Docket ID: FNS-2011-0019, 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
Dear Ms. Brewer:
The California Department of Education (CDE) has reviewed the U.S. Department of Agriculture’s (USDA) Food and Nutrition Service proposed rule regarding competitive food and beverage (competitive foods) sales on school campuses. The CDE recognizes the importance of providing healthier foods and beverages sold outside the federally reimbursable meal program to students and commends the USDA for taking the bold step to define national requirements.
Since 2001, California has been at the forefront of competitive food requirements, creating some of the strongest standards in the nation. Since their full implementation in 2009, California has observed that in many districts National School Lunch
Program (NSLP) participation has increased and competitive food sales have slowed significantly. Based on California’s experience, the CDE has outlined below five nutrition-related concerns, one administrative concern, and included recommended changes.
The nutrition-related concerns address:
- Exemptions for the NSLP and School Breakfast Program (SBP) entrées and side dishes
- Caffeine in high schools
- Low calorie beverages in high schools
- Exemptions for fundraisers
- Definition of “school day”
The administrative concern addresses:
- State agency authority for corrective action and withholding reimbursement
The CDE has additional concerns and recommended changes that are presented as Attachment A of this document.
Issues of Concern and Recommended Changes
Concern: Exemptions for the NSLP and SBP entrées and side dishes
The CDE does not support the exemption of any NSLP or SBP entrée items or side dishes. The purpose of the NSLP and SBP is to provide a variety of foods and beverages that, over time, create a balance of all nutrients, including limiting calories, fats, sugars, and sodium. This balance can be disrupted when individual foods may be chosen at the expense of the whole meal.
The CDE believes that exempting NSLP and SBP entrée items and side dishes undermines the intent of the proposed competitive food and beverage standards and the efforts to create a healthy school food environment. This concept also conflicts with the intent of the new federal nutrition standards for the NSLP and SBP to ensure adequate nutritional intake from a variety of healthful foods and beverages during the week. The USDA proposed competitive food rule states that the key purpose of this rule is to ensure that “children are provided with healthy food options throughout the school day.”
Competitive foods are sold in more than 75 percent of elementary and more than 90 percent of middle and high schools across the nation (School Nutrition Dietary Assessment Study-IV). According to the USDA, individual portions of NSLP and SBP entrées and side dishes (i.e., a la carte foods) account for 93 percent of competitive food sales in schools. Therefore, exempting these a la carte items could lead to an imbalance of nutrients and allow students to more often choose foods that are higher in calories, fat, saturated fat, sugar, and sodium.
The CDE recommends that all foods sold in competition with the federally reimbursable meal program, including individual portions of NSLP and SBP entrée items and side dishes should meet the same standards as all other foods sold in competition of the school meal.
While the CDE strongly discourages NSLP and SBP exemptions, if the USDA exempts such foods, we recommend choosing Alternative A1 (must meet fat and sugar standard) and Alternative B1 (limiting these sales to the day of service only). This recommendation represents the most restrictive alternatives outlined in the USDA competitive food rule.
Concern: Caffeine in high schools
The CDE does not support allowing caffeine-containing foods and beverages to be sold at any grade level, including high schools. The CDE believes that permitting such beverages in high schools is inconsistent with healthy practices currently being implemented in the NSLP and SBP. The CDE believes that USDA’s intent is not for students to have access to caffeinated beverages such as Red Bull, Monster, Full Throttle, and other energy drinks during the school day. The Institute of Medicine’s (IOM) Nutrition Standards for Foods in Schools states that it does “not support the sale of caffeinated products to school-age children because of the potential for negative effects, including shakiness, headaches, and other symptoms of dependency and withdrawal that could disrupt their abilities to concentrate and learn.” The American Academy of Pediatrics states that “energy drinks pose potential health risks primarily because of stimulant content; therefore, they are not appropriate for children and adolescents and should never be consumed.”
Opponents to removing caffeine beverages argue that: 1) students will just leave the school campus to buy these products, and 2) high school students need to be exposed to choices. The CDE understands these concerns but believes strongly that the priority on the school campus must be on student health and well-being. Schools have an obligation to model healthy food and beverage choices as part of a healthy school environment. Schools should only allow beverages shown to have a positive impact on students’ health.
The CDE recommends amending Title 7, Code of Federal Regulations (7 CFR) Section 210.11(l) to read “Caffeine. Foods and beverages available to elementary and middle and high school-aged students shall be caffeine-free, with the exception of trace amounts of naturally occurring caffeine substances.”
Concern: Low calorie beverages in high schools
The CDE does not support allowing low calorie beverages to be sold in high schools. The CDE believes that low calorie beverages do not contribute to a healthy diet. Low calorie beverages may not contribute many calories, but neither do they provide nutrients needed for growth and development. Low calorie beverages may, if offered during the school day, displace more healthful foods and beverages. Since one tenet of these proposed regulations is to combat childhood obesity, studies show that diet/low calorie beverages do not necessarily help control weight. Although the scientific findings are mixed and not conclusive, there is evidence that regular use of artificial sweeteners (found in most low calorie beverages) may actually promote weight gain.
The American Academy of Pediatrics states that for children, the long-term effects of consuming artificially-sweetened beverages are unknown, so it is best for children to avoid them. The IOM recommends allowing no calorie beverages in high schools only after school, to avoid competition with and potential displacement of nutrient-dense foods in school meals and snacks. The IOM does not even consider allowing other beverages besides milk, juice, and water. A study by Samuels and Associates (Samuels, S. The Impact of Competitive Food and Beverage Standards, March 2009) showed that when allowed, low calorie beverages dominate as the drink of choice in schools. After California legislation banned soda sales in schools, this study found that eight of the top 10 beverages offered for sale in California schools were lower calorie sports drinks. In 2012, California State Assembly Member Williams introduced Assembly Bill 1746 to eliminate sports drinks from school campuses. This bill was then held in committee. One of the reasons for this action was the expectation that the USDA would follow the IOM recommendations to eliminate sports drinks during the school day. The CDE is disappointed that the USDA has taken a weak stand on this issue.
Lastly, the same arguments to permit caffeine have been made for low calorie beverages; 1) students will just leave the school campus to buy these products, and
2) high school students need to be exposed to choices. The CDE believes strongly that the priority on the school campus must be on student health and well-being. Schools have an obligation to model healthy food and beverage choices as part of a healthy school environment. Schools should only allow beverages shown to have a positive impact on students’ health.
The CDE recommends deleting both Alternatives D1 (allowing beverages with no more than 40 calories per 8 fluid ounces) and D2 (allowing beverages with no more than 50 calories per 8 fluid ounces) from the USDA competitive food rule.
Concern: Exemptions for fundraisers
The CDE does not support exempting fundraisers from the nutrient standards set forth in the proposed federal rule. The CDE believes that all foods sold in competition with the federally reimbursable meal program, including foods and beverages sold through fundraisers, should meet the same standards as all other competitive foods. The CDE believes that exempting a limited number of fundraisers undermines the intent of the proposed standards and the efforts to create a healthy school food environment. This concept also conflicts with the intent of the new federal nutrition standards for the NSLP and SBP to ensure adequate nutritional intake from a variety of healthful foods and beverages during the week. The USDA proposed competitive food rule states that the key purpose of this rule is to ensure that “children are provided with healthy food options throughout the school day.” Foods sold as fundraisers, especially those that do not meet any standards, do compete with the school meals program as they are sold before, during, and after the meal time.
The CDE believes that all competitive foods should meet the specific and general nutrition standards set forth in this proposed rule. Allowing high calorie, high fat, and high sugar items (e.g., sodas, candy, chocolate, chips, etc.) to be sold during the school day sends an inconsistent message that most foods and beverages must meet strict standards while some do not.
Since the implementation of California’s competitive food rules, many schools have been very successful in implementing healthy- or non-food fundraisers such as
walk-a-thons, dance-a-thons, car washes, school auctions, art competitions, plant sales, gift wrap sales, etc.
This is an opportunity for the USDA to provide leadership and emphasize that schools have an obligation to model healthy behaviors by enforcing the standards for all foods and beverages sold outside of the federally reimbursable meal program.
The CDE recommends deleting 7 CFR Section 210.11(b)(5), therefore not allowing exempted fundraisers.
While the CDE strongly discourages the USDA to allow a limited number of exempt fundraisers, if federal flexibility must occur, the CDE would support Alternative E1 (the state agency [SA] has autonomy to choose the number of exempt fundraisers), with the SA option to choose zero as the number of exempt fundraisers.
Concern: Expand the definition of “school day” to include all federally reimbursable meals
One of the main objectives of the USDA proposed rule is to create competitive food standards that do not interfere with the integrity of the federally reimbursable meal programs. With the growing popularity of after-school programs, the reimbursable snacks and recently-allowed reimbursable suppers provide children the opportunity to consume a balanced meal in the late afternoon/early evening. The CDE believes that non-compliant foods and beverages, currently allowed from 30 minutes after the traditional school day, will undermine the objective of the balanced snack or supper offered to children in the after-school programs.
Extend the definition of “school day” to 30 minutes after the final federally reimbursable meal or snack is served on a school campus.
Concern: State agency authority for corrective action and withholding reimbursement
The USDA proposed competitive food rule includes new language to be added to 7 CFR Section 210.18(h)(7) stating, “Compliance with competitive food standards. The State agency shall ensure that the local educational agency complies with the nutrition standards for competitive foods and retains documentation demonstrating compliance with the competitive food service and standards outlined in §210.11.” The CDE recommends expanding this language to address corrective action and withholding payment for non-compliance findings. Even though 7 CFR Section 210.24 addresses corrective action and the withholding of payment for a School Food Authority (SFA) found out of compliance for the entire 7 CFR Part 210, the CDE believes it is necessary to reiterate this requirement in 7 CFR Section 210.18 for the following reasons:
- This is the first time the USDA has addressed competitive food sales since the 1980s.
- These competitive food rules are much more comprehensive than previous USDA competitive food rules.
- These comprehensive rules affect a number of groups and individuals on a school campus, including, but not limited to food service personnel, Parent and Teacher Associations (PTA) and other parent groups, and Associated Student Bodies (ASB) and other student organizations.
- It is important for all groups to understand the comprehensive rules and comprehend the consequences of not complying with the requirements. Groups that are less familiar with regulatory language, such as PTAs and ASBs, will more likely find compliance language if it is located within the title “Compliance with competitive food standards.”
- This amendment emphasizes to the less experienced that if a state finds a SFA agency out of compliance, the SA can withhold reimbursement to the district’s cafeteria fund if action has not been taken to correct the competitive food finding(s).
The CDE recommends adding the following bolded language to 7 CFR
Section 210.18(h)(7) Administrative Reviews (AR):
Compliance with competitive food standards. The State agency shall ensure that the local educational agency complies with the nutrition standards for competitive foods and retains documentation demonstrating compliance with the competitive food service and standards outlined in §210.11. In accordance with § 210.24, of this title, the State agency shall withhold Program payments, in whole or in part, to any school food authority which has failed to comply with the provisions of § 210.11. Program payments shall be withheld until the school food authority takes corrective action satisfactory to the State agency, or gives evidence that such corrective action will be taken, or until the State agency terminates the grant in accordance with § 210.25 of this part.
The CDE appreciates the opportunity to provide comments on the USDA’s proposed rule, 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, and urges the USDA to make the necessary changes to these standards after analyzing the comments. The CDE looks forward to working with the USDA to successfully implement competitive food standards for the benefit of all students.
If you have any questions regarding this subject, please contact me by phone at
916-323-7311 or by e-mail at firstname.lastname@example.org.
Sandip Kaur, Director
Nutrition Services Division