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Definition of Sold for Competitive Food


Nutrition Services Division Management Bulletin
Purpose: Policy

To: School Nutrition Program Sponsors

Number: NSD-SNP-04-2010

Attention: County and District Superintendent, Business Official, Food Service Director

Date: June 2010

Subject: Definition of "Sold" in Relation to Food and Beverage School Fundraising Practices

Reference: California Education Code sections 49430-49431.7

This Management Bulletin (MB) provides information from the California Department of Education’s (CDE’s) Nutrition Services Division (NSD), on whether certain food or beverage fundraising activities constitute a school campus food or beverage sale.

Competitive Food and Beverage Requirements and the Definition of “Sold”

California Education Code (EC) sections 49430-49431.7 contain restrictions that apply to all foods and beverages sold (and foods containing trans fats served or sold) to students on school campuses outside of the federally reimbursable meal program.

EC Section 49430(f) defines “sold” as “…the exchange of food for money, coupons, or vouchers.”

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.)

In addition, 7 CFR Section 210.11 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].” (Bold type added for emphasis.)

Types of Fundraising Activities

The state food and beverage restrictions require many groups to alter their fundraising practices. While the CDE strongly encourages groups or individuals to sell non-food items at fundraisers, schools may still conduct food or beverage fundraisers, as long as the items comply with the applicable restrictions.

The transaction of selling foods or beverages can take three avenues:

  1. All parts of the transaction occur on school campus. Example: The Associated Student Body store sells food and beverage items on school campus from 1 to 3 p.m. The student enters the store, chooses the item(s), pays for the item(s), and exits the store with the item(s).

    This scenario seems to meet the definition of “sold,” per EC 49430(f) and is thereby subject to all restrictions set forth in EC sections 49430-49431.7.
  1. All parts of the transaction occur off of and away from school campus. Example: The school’s Parent Teacher Association (PTA) sets up a local fundraiser with the local pizza parlor. Twenty percent of the proceeds of all purchases from the students and their families will go back to the school.

    Per EC 49431(b)(1) and 49431.2(c)(1) if the sale of food or beverage items takes place off of and away from school premises, then the fundraiser is not subject to the restrictions set forth in EC sections 49430-49431.7.
  1. Some parts of the transaction occur on campus, some occur off campus. Example: The PTA fundraiser includes cookie dough tubs and frozen pizzas. The product order forms are distributed to students somewhere on school campus. The students gather orders (which potentially can be gathered on or off of school campus). Money may also be collected at the time the order is taken, or collected later when the product is delivered. The students then return to campus and submit their order forms and/or payments to someone at the school. Once the PTA submits the order to the company providing the product, the product is received and distributed on school campus to students. The students then distribute the ordered products to their respective buyers.

    In this scenario, the following transactions may occur on the school campus:

The following may occur off of and away from school campus:

Even though some parts of the sale take place off of and away from the school campus, and would otherwise be exempt from the food and beverage restrictions, other parts of the transaction may take place on the school campus. If some parts of the transaction take place on school campus, this might be construed a sale on campus according to the restrictions set forth in EC sections 49430-49431.7. SFAs should check with district counsel for guidance.

Compliant Fundraising Activities

If any part of a food or beverage sale occurs on school campus, the NSD encourages the entity in charge of the sale to critically review its practices for compliance with EC sections 49430(f), 49431(b), 49431.2(c), 49431.5(a)(2), and 49431.5(c)(2). If these situations are not clearly compliant with state law, the SFA should seek advice from its legal counsel.

Per 7 CFR sections 210.11 and 220.12, in the absence of state or federal requirements, the SFA has the authority to develop rules as are necessary to control the sale of competitive food and beverages. Therefore, the SFA may choose to adopt a stricter definition of the term “sold” to include a food or beverage sale where parts takes place on and off of school campus.

School districts can find more information regarding this issue in the CDE’s recently released MB pertaining to sales by groups outside of the federally reimbursable school meal programs, located at the following CDE Web page: http://www.cde.ca.gov/ls/nu/sn/mbnsdsnp012010.asp.

Other Resources

The CDE Competitive Foods and Beverages Web page 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, at 916-445-7346 or by e-mail at mdanzik@cde.ca.gov.

Questions:   Nutrition Services Division | 800-952-5609
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