BREAKING: USDA Issues Proposed Rules for School “Competitive Food” and My Analysis

by Bettina Elias Siegel on February 1, 2013

After months of delay, the USDA today released its proposed rules governing the nutritional quality of so-called “competitive” foods and beverages offered on school campuses.

To refresh everyone’s memory, competitive food and beverages are those offered in competition with the federally subsidized school meal, and are sold via vending machines, school stores, fundraisers, snack bars operated by the school cafeteria and other outlets.  Back in 2010, the Healthy, Hunger-Free Kids Act gave the federal government the authority — for the first time ever —  to regulate these foods and we’ve been waiting ever since to see what the rules might look like.

A PDF of the proposed rules may be accessed here.  Here’s an overview of the rules’ key provisions and my take on some of the big issues to watch in the next 60 days, after which the rules will be finalized:

Nutritional Standards for Competitive Foods

Under the new rules, foods sold at school outside the meal program must:

  • Be either a fruit, a vegetable, a dairy product, a protein food, a “whole-grain rich” grain product (50% or more whole grains by weight or have whole grains as the first ingredient), or a combination food that contains at least 1⁄4 cup of fruit or vegetable; OR
  • Contain 10% of the Daily Value (DV) of naturally occurring calcium, potassium, vitamin D, or fiber.

In addition, there are limits on fat total fat (≤35% of calories), saturated fat (<10% of calories) and trans fat (0g as stated on the label), and sodium is capped at 200 milligrams for snack items and 480 milligrams for entrees.  When it comes to sugar, the USDA offers two options for comment.  One is to cap sugar at ≤35% of calories and the other is ≤35% of weight.  (Exemptions are provided for fruits and vegetables packed in juice or extra-light syrup and for certain yogurts.)  Snack items are limited to 200 calories per portion, and entrees limited to 350 calories per portion.

Key Food Issue:  Fortification and “Naturally Occurring” Nutrients

This is where I expect to see the biggest fight between food advocates and industry.  Under USDA’s proposed rule, a food that is NOT “a fruit, a vegetable, a dairy product, a protein food, or a ‘whole-grain rich’ grain product” can still be sold in schools if it contains 10% of the Daily Value (DV) of naturally occurring calcium, potassium, vitamin D, or fiber.

I’ve long expressed on The Lunch Tray my concern that the food industry will try to get around any new competitive food rules by simply fortifying its existing, highly processed snack products.  USDA clearly also anticipates this defensive maneuver and therefore floats the idea that:

in order to be allowable, food items must contain 10% of the Daily Value (DV) of a naturally occurring [emphasis mine] nutrient of public health concern: calcium, potassium, vitamin D, and dietary fiber.  . . .

The rationale to limit the products to the naturally occurring nutrients is to limit the consumption of products to which specific nutrients of concern have been added and encourage consumption of whole foods or foods closer to their whole state . . . .

In my view, this proposal would be a fantastic development, preventing the otherwise inevitable “Baked Flamin’ Hot Cheetos, Now With 10% of Your Day’s Fiber Requirement.”

But USDA doesn’t seem particularly wedded to this concept.  It goes on to say:

The Department is interested in receiving comments from the public as to whether or not food items that contain only naturally occurring nutrients should be allowed in this rule, or whether food items to which specific nutrients of concern have been added should also be allowable.

You can be quite certain that Big Food is more than willing to provide its views on this issue, and I can assure you they won’t be in favor of whole foods over fortified snack foods.  Get ready for a big fight on this one, and be sure to tell USDA how you feel about it (see below on how to comment.)

Key Food Issue:  A la Carte Foods

School cafeterias often sell food items on an “a la carte” basis, i.e, separately from the federally reimbursed school meal and exempt from that meal’s nutritional requirements.  Here in Houston ISD, I’ve been dismayed to watch high school kids take from cafeteria snack lines plates of fried chip, cheesy nachos or slice after slice of pizza as their daily lunch.

The new rules propose three different ways of regulating a la carte foods.  One standard would only limit the fat and sugar content of these foods, while second standard would allow an a la carte food item to be sold so long as it is also offered that same day as part of the school meal.  In other words, a kid could buy extra slices of pizza or a basket of fries only so long as those items are also on that day’s school meal menu.  A the third option would allow the purchase of such items so long as they appeared on the menu within the prior four days.

While the proposed fat and sugar limits are a start, I prefer a rule that ties a la carte offerings to the school meal menu, whether on the same-day or four-day schedule.  This requirement would prevent kids from eating one or two a la carte items (such as nutritionally doctored pizza or a burger) every single day as they are currently able to do in many schools.  Furthermore, under the new, more stringent school meal nutritional requirements, it seems to me that a la carte items taken from the school menu aren’t likely to go too far off the rails nutritionally.

Competitive Beverages

When it comes to beverages, the rules propose that all schools be able to sell plain water, plain low fat milk, plain or flavored fat- free milk and milk alternatives, and 100% fruit/vegetable juice. Elementary schools are capped at 8-ounce portions, with middle schools and high schools selling up to 12-ounce portions.

In addition to these drinks, high schools can offer up to 20-ounce servings of calorie-free, flavored and/or unflavored carbonated water and other calorie-free beverages with 5 calories or fewer per serving.   And the proposed rules also would allow 12-ounce servings of “other beverages” within a specified calorie limit of either 40 or 50 calories per 8 ounces.  What’s that about?  See below.

Key Beverage Issue: The Fate of Sports Drinks

As noted, USDA is offering for comment two different standards for certain “other beverages” sold in high schools, with calorie caps at either 40 calories per 8-ounce serving or 50 calories per 8 ounces.  So what’s the big deal over 10 extra calories?  In  USDA’s own words:

The higher 50 calorie limit would permit the sale of some national brand sports drinks in their standard formulas.79 The lower 40 calorie limit would only allow the sale of reduced-calorie versions of those drinks. The 50 calorie alternative would open the door to a class of competitive beverages with great market strength and consumer appeal. Such a change might generate significant revenue for schools and student groups.

USDA leaves the window open for the continued sale of sports drinks despite the fact that:

IOM [the Institute of Medicine] specifically excludes sports drinks from both its Tier 1 and Tier 2 lists of beverages. However, IOM does recognize their value for student athletes engaged in prolonged physical activity for “facilitating hydration, providing energy, and replacing electrolytes”  . . . . In these limited circumstances, IOM would endorse the decision of an athletic coach to make such drinks available.

But of course the vast majority of kids guzzling sports drinks on a regular basis are not doing so after “prolonged physical activity;” rather, they are simply drinking empty calories.  Nonetheless, you can bet there will be significant lobbying by the beverage industry — and schools — in favor of allowing the continued sale of hugely popular sports drinks.

Bake Sales and Other Fundraisers

Clearly anticipating a public outcry if the new rules banned the beloved school bake sale, the rules allow the states to permit a limited number of fundraisers per year involving food and beverages which don’t meet the proposed nutritional requirements.  There are two proposals on the table for how states will determine the limit on such fundraisers.

Rules Only Cover the School Day

Not that anyone expected otherwise, but it’s important to note that the rules don’t apply to activities which take place during non-school hours, on weekends or off-campus.  So setting up a table of donuts and candy bars for kids to buy on their way out of school, after the last bell rings, is still an acceptable fundraiser with no yearly limits.

Comment Period Begins – Speak Out!

It remains to be seen whether and how hard the food industry will try to chip away at these proposed nutritional guidelines but if past experience is any guide, it is likely to fight hard.  It’s therefore critically important that private citizens and advocacy groups in favor the improved nutritional standards publicly register their support.  You can easily leave your own comment on the rules via this link.  And remember, the comment period closes in a mere 60 days.

I’ll update you further on these rules, and their public reception, as warranted.

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{ 8 comments… read them below or add one }

Chris February 3, 2013 at 10:19 am

Thanks, Bettina. I’m curious: If these rules pass as is, can you give us some concrete examples of what would be the worst foods/beverages that will still be sold in school? How about if they pass but without the “naturally occurring” language?

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EdT. February 3, 2013 at 7:50 pm

My guess is that, should the “naturally occurring” language be stripped, then we’ll things such as “Flamin’ Hot Nacho Cheeze Cheetos – FORTIFIED WITH EXTRA FIBER!” as the food mfgrs tweak their recipes.

~EdT.

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Bettina Elias Siegel February 5, 2013 at 10:38 pm

Chris: I plan a follow-up post next week and will definitely provide some examples.

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Karen February 4, 2013 at 11:55 am

Thanks for putting up such an informative post. I just have one comment about the schedule issue.

The schedule which permits a food as long as it’s been on the school menu within the past four days means there will be [pizza/fries] served every day in every school.

The federally funded lunch will serve [pizza/fries] on Monday.

The a la carte food service line will serve [pizza/fries] Tuesday through Friday.

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Bettina Elias Siegel February 5, 2013 at 10:37 pm

Ah, good point. I hadn’t thought of that, clearly.

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Mary Lawton February 6, 2013 at 7:01 am

Kudos in Chron today. The article prompted me to alert the principal that I saw posters in the halls yesterday advertising a ‘Sweet Tooth Sale’ at school this week, to raise funds for a club.

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mommm!!!! February 8, 2013 at 11:22 am

Distressing. My child has five more years to go. I recently was educated (by accident) on just how much bartering goes on during lunch among the kids that bring lunches from home. It seems no matter how healthy my child’s lunch is when he leaves the house, that doesn’t guarantee what he actually consumes at lunch. Uggghhhh. It’s so frustrating.

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dee May 3, 2013 at 3:08 pm

I can see that requiring healthier food guidelines is necessary, however the schools are now being mandated by the federal government to regulate how much a child eats and limits various foods. Personally, i think is BIG BROTHER moving in! Now signs are posted stating that a student can only have one fruit, and for lunch there is no juice available at all. In addition, they are now taking away string cheese from the yogurt tray, saying that it is too much protein. GOOD GOD! I don’t need the government to dictate what we eat. See what happens when you vote in more government involvement? If you want kids to be healthier and weight less, then make the streets and neighborhoods safer so kids can play outside again. Change the laws so that perpetrators of violent crimes, particularly involving children, are dealt with severely and swiftly. Then, perhaps, those that would harm children will be too afraid of the consequences. And get off my back about what i eat at school, ms. Obama and all your pals in the government…i like my yogurt with my string cheese!!!

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