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Competitive Food and Beverage Sales

This Management Bulletin (MB) provides information from the California Department of Education’s (CDE), Nutrition Services Division (NSD), on school food authority (SFA) responsibilities for controlling and monitoring foods and beverages sold to pupils outside of the federally reimbursable school meal programs (known as competitive food and beverage sales).

The CDE monitors and enforces the sale of competitive foods and beverages in schools pursuant to federal regulations and the California Education Code (EC). The following is a summary of the monitoring and enforcement rules:

Federal Regulation Requirements

• Title 7, Code of Federal Regulations (7 CFR), sections 210.11 and 220.12 require state agencies and school food authorities (SFA) to “establish such rules or regulations as are necessary to control the sale of foods in competition with [federally reimbursable meals].” (Bold type added for emphasis.)
  
  This section also states that “state agencies and school food authorities may impose additional restrictions on the sale of and income from all foods sold at any time throughout a school campus that participates in a [federally reimbursable meal program].”
• 7 CFR, Section 210.2 defines an SFA as “the governing body, which is responsible for the administration of one or more schools; and has the legal authority to operate [a federally reimbursable meal program].”

The State of California’s response to these federal regulations has been to enact legislation and regulations controlling the sale of competitive food and beverages.

California Education Code Requirements

• EC Section 48931 requires the California State Board of Education (SBE) to develop policy and regulations for the sale of food by any entity or organization, or any combination thereof, which shall ensure optimum participation in the school district's or the county office of education's federally reimbursable meal programs. In response, the SBE created Title 5, California Code of Regulations (5 CCR), sections 15500 through 15501, which address food and beverage sales by student organizations.
• EC sections 49430 through 49431.7 enact restrictions on the nutrition content of foods and beverages and advise the school district’s governing board to annually review its compliance with the competitive food and beverage restrictions.
• EC Section 49434 authorizes the CDE to monitor schools for competitive food and beverage sale compliance through its Coordinated Review Effort (CRE).

SFA Requirements

The SFA is required to approve all competitive food and beverage sales:

• Per Title 5 California Code of Regulations, sections 15500 through 15501, the SFA’s governing board may permit a student organization to sell food or beverage items. All food or beverage items offered for sale by student organizations must be approved by the governing board.
• EC sections 51520 through 51521 state that no group or individual shall solicit (or sell) anything to students on school premises unless approved by the governing board.

Not every competitive food and beverage scenario is addressed by current state or federal laws and regulations. Accordingly, in the absence of specific state or federal requirements, the SFA is expected to develop rules as are necessary to control the sale of competitive food and beverages.

Examples of controls for SFAs to consider that are not addressed by state or federal requirements are:

• Food safety and sanitation issues for any group or individual selling foods or beverages on school campus
• Restrictions that go further than the State’s on the types of foods or beverages that can be sold or the time of day the foods or beverages can be sold by any group or individual so as to ensure optimum school meal participation

Monitoring and Enforcement through the Coordinated Review Effort (CRE) Process

The CRE is the federally required monitoring process that the NSD follows to review an SFA’s adherence to federal and state laws and regulations, including food and beverage requirements. As part of its monitoring responsibility, the NSD must gather specific SFA and campus-wide information on foods and beverages sold in order to properly and effectively review the SFA’s food service practices, including those food and beverage items sold outside of the reimbursable meal program by entities including, but not limited to:

• The food service department
• The Parent/Teacher Association (PTA) or Parent/Teacher Organization (PTO)
• Student organizations
• Athletic departments
• Regional Occupational Programs
• Other groups or individuals

SFA Information Necessary for Compliance

The type of information necessary for the NSD to evaluate compliant competitive foods and beverages includes, but is not limited to:

• The contact information for each group or individual that sells foods or beverages on school campus
• A list of all foods and beverages sold, by each group or individual, on school campuses
• The dates and times planned for such sales by each group or individual on school campuses

The NSD does not require a specific format for collecting this information, but the SFA, upon request by the NSD, should demonstrate the procedure used to collect this information.

SFA Best Practice Process to Ensure Compliance

Given the SFA’s responsibility to ensure compliance and create rules, when necessary, to control the sale of competitive foods and beverages, it is in the SFA’s best interest to identify practices not addressed in state or federal requirements and address them through their Local School Wellness Policy process.

The following are examples of best practices that an SFA can choose to implement:

• Develop a process through which each group or individual presents their food or beverage sale to the governing board for approval.
• Develop a procedure within the Local School Wellness Policy for groups or individuals to document applicable food and beverage information that can be used for auditing purposes, evaluation, sharing with the district, parents, and community, etc.
• Appoint a school site administrator to coordinate all food and beverage sales occurring on campus. This person can also be in charge of presenting requested sales to the governing board.
• Develop a yearly calendar that includes all food and beverage sales, where and when they will take place, by whom, etc.
• Coordinate a point person for each group or individual selling foods or beverages, e.g., Associated Student Body, PTA/PTO, Athletic Department, Regional Occupation Programs, etc.

At the request of the NSD, the SFA should be able to demonstrate the district procedure for evaluating compliance with the district, state, and federal competitive food and beverage rules.

Educating groups or individuals on their responsibilities for complying with the food and beverage sale restrictions can:

• Streamline competitive food and beverage sales within the SFA
• Allow for the sharing of information
• Provide opportunities for partnerships among various groups or individuals
• Increase the SFA’s compliance with food and beverage requirements

Other Resources

Please refer to the CDE Web page that provides additional information about competitive food and beverage requirements at http://www.cde.ca.gov/ls/nu/he/compfoods.asp.

If you have any questions regarding this MB, please contact Mike Danzik, Nutrition Education Specialist, by phone at 916-445-7346 or by e-mail at mdanzik@cde.ca.gov.