Contracts for Nonnutritious Products

This Management Bulletin (MB) amends and supersedes MB 04-105 issued March 2004. The amendments include adding "or nonexclusive" under part A as it relates to advertising rights or the sale of carbonated beverages, nonnutritious foods, or nonnutritious beverages. Also, the outline numbering has been changed for consistency.

Specifically, this MB provides information regarding Senate Bill 65 (Chapter 458, Statutes of 2003), which was signed into law in September 2003. This bill amends California Education Code Section (EC) 35182.5. Effective January 1, 2004, the state law now specifies school district governing board requirements for entering or renewing nonnutritious beverage or nonnutritious food contracts, and defines nonnutritious beverages, nonnutritious foods, and added sweeteners. Highlights of the new law are:

School District Governing Board Requirements

1. The governing board of a school district may not permit the district or a school in the district to enter into or renew a contract that grants exclusive or nonexclusive advertising rights; or grants the right to the exclusive or nonexclusive sale of carbonated beverages, nonnutritious beverages, or nonnutritious foods unless the governing board does both of the following:
   1. Adopts a policy, after a public hearing of the governing board, to ensure:
      • The integrity of the public funds are protected;
      • Funds raised benefit public education;
      • Contracts are entered into on a competitive basis pursuant to standard procedures, and
   2. Provides parents, guardians, pupils, and the public an opportunity to comment on each contract at a public hearing. Each contract to be discussed must be clearly identified in the public hearing agenda.
2. The public hearing for policy adoption shall include, but not be limited to, a discussion of the following:
   1. The nutritional value of food and beverages sold within the district;
   2. The availability of fresh fruit, vegetables, and grains in school meals and snacks, including, but not limited to, locally grown and organic produce;
   3. The amount of sugar, fat, and additives in the food and beverages discussed;
   4. Barriers to pupil participation in school breakfast and lunch programs.
3. A governing board may meet the public hearing requirement for contracts for the sale of carbonated beverages, nonnutritious beverages, or nonnutritious foods by:
   1. Review of the contract at a public hearing by a Child Nutrition and Physical Activity Advisory Committee that has contract review authority for the sale of food and beverages;
   2. An annual public hearing to review and discuss existing and potential contracts for the sale of food and beverages, including those sold through fundraisers and vending machines;
   3. Review of the contract at a public hearing during any regularly scheduled board meeting.

Contract Requirements

1. Each contract must be accessible to the public and cannot contain a confidentiality clause preventing any part of the contract from being public.
   
   
2. Contracts entered into prior to January 1, 2004, may remain in effect, but may not be renewed if they are in conflict with any of the above.

Definitions

Nonnutritious beverage means any beverage that is not any of the following:

• Drinking water;
• Milk, including, but not limited to, chocolate milk, soy milk, rice milk, and other similar dairy or nondairy milk;
• An electrolyte replacement beverage that contains 42 grams or less of added sweetener per 20 ounce serving;
• A 100 percent fruit juice, or fruit-based drink that is composed of 50 percent or more fruit juice and that has no added sweeteners.

Added sweetener means any additive that enhances the sweetness of the beverage, including, but not limited to, added sugar but not the natural sugar or sugars that are contained within any fruit juice that is a component of the beverage.

Nonnutritious food means food not sold as part of the full meal in the school breakfast or lunch program, and that meets any of the following standards:

• More than 35 percent of its total calories are from fat;
• More than 10 percent of its total calories are from saturated fat;
• More than 35 percent of its total weight is composed of sugar (does not apply to fruits or vegetables).

Senate Bill 65 (Torlakson) may be viewed in its entirety at: https://leginfo.legislature.ca.gov

If appropriate, please share this information with your district/agency management and business personnel. If you have any questions, please contact your Nutrition Services Division representative in the Field Services Unit at 916-445-0850 or [Note: The preceding phone number is no longer valid] 800-952-5609. You may also contact the Competitive Foods and Beverages team by email at competitivefoods@cde.ca.gov.