Competitive Food and Beverages Definition of Sold

This management bulletin supersedes NSD-SNP-28-2014 and provides additional information for public noncharter schools and school districts regarding California’s definition of the term ‘sold’ as it relates to competitive foods as well as sample scenarios to assist with compliance.

Background

Per 7 CFR sections 210.11(b)(1) and 220.12, state and local educational agencies (LEAs) may also establish additional restrictions on the sale of and income from competitive foods, provided they are consistent with federal and state requirements. As a result, LEAs are encouraged to consult their site-level policies, including their local school wellness policy, that may have established guidelines pertaining to competitive food sales.

Only those items that comply with the applicable local, state, and federal requirements are allowed to be sold as a competitive food. The federal competitive food rules found in 7CFR Section 210.11 are collectively referred to as Smart Snacks in School (SSIS). California state competitive food rules are found in EC sections 49430–49431.7, and 49434, as well as California Health and Safety Code (HSC) Section 109025. Areas where California state laws are more restrictive than the federal, the state laws supersede the SSIS.

Definitions

The following definitions apply when implementing competitive food standards:

• Competitive Foods: all foods and beverages sold to students on school campus during the school day outside of the school nutrition programs (7 CFR Section 210.11[a][2], EC Section 49430[c], and CCR 15575[a])
  
  
• School Campus: all areas of the property under the jurisdiction of the school that are accessible to students during the school day (7 CFR, Section 210.11[a][4] and EC Section 49430[k])
  
  
• School Day: the period from the midnight before to 30 minutes after the end of the official school day (7 CFR, Section 210.11[a][5] and EC Section 49430[l])
  
  
• Sold: the exchange of food or beverages for money, coupons, vouchers, or order forms, when any part of the exchange occurs on a school campus (EC Section 49430[n]); note that SSIS does not provide a definition of sold

Implementation of the Definition of “Sold”

To determine if a competitive food is “sold,” the following two actions must occur and when they occur, they must both include a student and occur school campus, during the school day, and outside of the school nutrition programs:

Payment (can be any one of the following):

• An exchange of money for the food or beverage, or
  
  
• An exchange of money for a coupon or voucher which will later be exchanged for the food or beverage, or
  
  
• Completion of an order form and submission of payment for the food or beverage.

Provision of the food or beverage

Note that these two actions may occur on different school days.

Determining if Competitive Food & Beverage Requirements Apply

For competitive food requirements to apply, all of the criteria listed in the definition must be met; the food or beverage must be:

• Sold,
  
  
• To a student,
  
  
• On school campus,
  
  
• During the school day, and
  
  
• Outside of the school nutrition programs

If any one of these criteria is not met, then the item is not considered a competitive food and the competitive food requirements will not apply.

Three-step Process

It’s most efficient to leave the determination of whether or not the item is sold to last.

Step 1: Begin by determining whether or not the scenario occurred with a student, on school campus, during the school day and outside the school nutrition programs.

Step 2: Determine if payment occurred.*

Step 3: Determine if the food or beverage was provided.*

*Both of these must also occur with a student and on campus, during the school day and outside the school nutrition programs, and may occur on different days.

Sample Scenarios

Scenario A: While on school campus, and during the school day, a student approaches a kiosk. The worker gives the student a bag of chips. The student gives the worker a dollar.

• Step 1: The scenario occurred with a student, on school campus, during the school day and outside the school nutrition programs.
  
  
• Step 2: Payment was made.*
  
  
• Step 3: The food was provided.*
  
  
• Both of these occurred with a student, on school campus, during the school day and outside the school nutrition programs.
  

Determination: Yes - the competitive food rules apply to Scenario A.

Scenario B: While on school campus, and during the school day, a student purchases a voucher for five dollars for a spaghetti dinner taking place in the school’s multipurpose room next Friday at 6 p.m.

• Step 1: The scenario occurred with a student, on school campus, during the school day and outside the school nutrition programs.
  
  
• Step 2: Payment was made on school campus, during the school day and outside the school nutrition programs.
  
  
• Step 3: The food was not provided during the school day.

Determination: No - the competitive food rules do not apply to Scenario B.

Scenario C: While on school campus and during the school day, a student orders and pays for food to be delivered to the school site using a commercial food delivery app. The student leaves school campus to retrieve the meal from the delivery driver. The student then walks back onto campus to eat their meal.

• Step 1: The scenario occurred with a student, on school campus, during the school day and outside the school nutrition programs.
  
  
• Step 2: Payment was made on school campus, during the school day and outside the school nutrition programs.
  
  
• Step 3: The food was provided off campus.

Determination: No - the competitive food rules do not apply to Scenario C because the food was obtained occurred off campus. If, however, the meal was delivered on school campus then this scenario would meet the definition of sold and the competitive food standards would apply.

Considerations for Competitive Food Sales

The California Department of Education (CDE) understands that, in some instances, it can be difficult to ensure that a student does not engage in a noncompliant competitive food sale; this can occur, for example, when candy bars that are intended for sale away and apart from the school campus are instead sold to students on the school campus during the school day. Because of this, the CDE strongly recommends that noncompliant items, be distributed to students after the school day, or outside of the school campus.

LEAs are encouraged to review their competitive food and beverage sale practices to protect the integrity of school nutrition programs, as well as to create a healthy school environment. Examples of local policies that can support compliant competitive food sales include:

• Allowing only a certain number of compliant food and beverage sales per year, which encourages groups to provide nonfood sales as often as possible
  
  
• Allowing food and beverage sales to occur only after the last lunch period to maximize participation in the National School Lunch and School Breakfast Programs
  
  
• Addressing student food delivery protocols

Please share this management bulletin with individuals and groups within your school community responsible for foods and beverages sales to students that may occur on school campus, during the school day, and outside of the school nutrition program.

Resources

Frequently asked questions, recorded webinars, MBs, and additional resources are available on the CDE Competitive Foods and Beverages web page at https://www.cde.ca.gov/ls/nu/he/compfoods.asp.

The USDA Food and Nutrition Administration’s Smart Snacks in Schools web page provides resource materials and federal guidance for SSIS and can be accessed at https://www.fna.usda.gov/school-meals/nutrition-standards/smartsnacks.