Federal & State Competitive Food Rule Update

This management bulletin (MB) supersedes MB SNP-21-2016 and provides an update to state law regarding selling eggs as a competitive food.

This MB also provides information on the changes made to the final rule for the federal competitive food and beverage requirements called Smart Snacks in School (SSIS). On July 29, 2016, the U.S. Department of Agriculture (USDA) issued the SSIS final rule under Title 7, Code of Federal Regulations (7 CFR), Section 210.11. The changes found in the final rule became effective on September 27, 2016. The SSIS final rule is on the USDA School Meals SSIS Final Rule web page at https://www.fns.usda.gov/school-meals/fr-072916d.

Background

The Healthy, Hunger-Free Kids Act of 2010 authorized the USDA to create federal regulations on competitive foods—foods and beverages sold to students, on school campus, during the school day, outside of the federally reimbursable meal program. The USDA release of the SSIS interim final rule became effective on July 1, 2014. During the period of the SSIS interim final rule, the USDA released policy memoranda that contain additional questions and answers on implementation (SP 23-2014v3), grain-only entrée guidance (SP 35-2014), exempted fundraisers (SP 40-2014), and paired exemption guidance (SP 63-2014). These additional memos made adjustments or provided additional guidance to the SSIS interim final rule. Information from these memos as well as other minor changes are codified in the SSIS final rule.

Summary of the Changes Made in the SSIS Final Rule

The following summarizes the changes made to the SSIS final rule:

Entrée Definition

The SSIS final rule added language to the definition of competitive entrée. The definition is a combination of foods containing a meat/meat alternate (M/MA) plus a whole grain-rich (WGR) item; or an M/MA plus a fruit/vegetable; or an M/MA alone not including yogurt, low-fat or reduced fat cheese, nuts, seeds, nut or seed butters, and meat snacks. The SSIS final rule added the phrase “intended as the main dish” to the definition of entrée which “…clearly express[es] the [USDA’s] intent that an entrée be the main dish in the meal.” The effect on California schools includes:

• Public noncharter schools: No substantive change. The additional language added to the competitive entrée definition aligns with California law. Section 15575(b) of 5 CCR defines competitive entrée as a food generally regarded as “the primary food in a meal,” which is similar in meaning to a “main dish” as defined in the SSIS final rule.
  
  
• Charter and private schools: Must follow these changes to ensure that a competitive entrée is one that is clearly intended as the main dish.

The SSIS final rule provided an exception to the definition of entrée. The SSIS final rule allows a WGR grain-only item when served in the School Breakfast Program to be sold as a competitive entrée even though it does not meet the SSIS definition of competitive entrée. The WGR grain-only entrée must still meet the entrée nutrition standards to be compliant. This allowance was permitted under the USDA Policy Memo SP 35-2014 and was codified under 7 CFR, Section 210.11(a)(3)(iv). The effect on California schools includes:

• Public noncharter schools: Must follow stricter California law. Section 15575(b)(1) of 5 CCR defines a competitive entrée as containing at least two food groups. This definition nullifies the SSIS final rule allowance of a WGR grain-only item as being considered a competitive entrée. Due to the California requirements, any WGR grain-only item is compliant only if it meets the competitive snack requirements.
  
  
• Charter and private schools: Can serve a WGR grain-only entrée that is offered in the School Breakfast Program as a competitive entrée.

Eggs

Eggs are exempt from the fat and saturated fat standards in the SSIS final rule. This aligns with California competitive food rules as stated in EC sections 49431 and 49431.2. The effect on California schools includes:

• Public noncharter schools: When an individual egg, with no added fat or sugar, is sold as a competitive food it is exempt from the fat standard and saturated fat standard.
  
  
• Charter and private schools: Same as for public noncharter schools.

Canned Vegetables

The SSIS final rule exempts low sodium or no salt added canned vegetables from all of the nutrition standards. This exemption aligns with California competitive food rules. The effect on California schools includes:

• Public noncharter schools: The low sodium or no salt added exemption does not affect California public noncharter schools. California rules exempts all fruits and vegetables that do not contain added fats or sugars from only the total fat standard and the sugar standard. These items must still meet the nutrition standards for sodium, calories, saturated fat, and trans fat. As a reminder in both the California rules and SSIS final rule, if fruits and vegetables contain added fats, and in some cases added sugar, these items are no longer exempt and must meet all six nutrition standards.
  
  
• Charter and private schools: May allow the exemption of low sodium or no salt added canned vegetables from all six nutrition standards.

Paired Exemption Definition

The SSIS final rule explains that when two items are combined and sold together, when each individual item is exempt from one or more of the nutrition standards, the combination item is automatically exempt from the total fat, saturated fat, and sugar standards. This paired exemption item must still meet the calorie, sodium, and trans fat standards. Please refer to MB SNP-07-2019 for more information about competitive food standards for exempt foods items when sold individually or paired together. The effect on California schools includes:

• Public noncharter schools: May follow this paired exemption rule.

• Charter and private schools: May follow this paired exemption rule.

Requirements in the Local School Wellness Policy Final Rule that Affect the SSIS Final Rule

The Local School Wellness Policy (LSWP) final rule clarifies that any foods or beverages marketed or advertised during the school day on the school campus must meet the SSIS final rule requirements. Additionally, the LSWP final rule clarifies what is and is not subject to policies for food and beverage marketing in schools.

The LSWP final rule states:

“…marketing is defined as advertising and other promotions in schools. Food marketing commonly includes oral, written, or graphic statements made for the purpose of promoting the sale of a food or beverage product made by the producer, manufacturer, seller, or any other entity with a commercial interest in the product.”

Local educational agencies (LEA) are required to include policies in their LSWP plan that allow the marketing of only those foods and beverages that may be sold on the school campus during the school day. The LSWP final rule also states that the marketing of products on the exterior of vending machines, through posters, menu boards, coolers, trash cans, and other food service equipment, as well as cups used for beverage dispensing are all subject to these LSWP standards.

The LSWP final rule does not require schools to immediately replace menu boards, coolers, tray liners, beverage cups, and other food service equipment with depictions of noncompliant products or logos or remove or replace an existing scoreboard on a sports field or in a gymnasium. However, as the LEA and departments within the LEA review new contracts, and as durable equipment are replaced, decisions should reflect the applicable marketing standards required by the LSWP final rule. A separate MB will provide additional information regarding the LSWP final rule.

Contact Information

If you have any questions regarding this subject, please contact the Competitive Foods and Beverages team by email at competitivefoods@cde.ca.gov.