Do New USDA School Snack Rules = The Death of “Better-For-You” Junk Food?

by Bettina Elias Siegel on July 2, 2013

As I told you last week on this blog’s Facebook page, the USDA has released its interim final rules for “competitive” foods and beverages offered on school campuses.  But I didn’t want to share this news here on the blog until I’d taken some time to parse through the new rules so I could share my own analysis.

Just to bring everyone up to speed, “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 February, USDA released proposed rules for regulating these items, and overall they were regarded as a big leap forward in fostering children’s health during the school day.  (I won’t recap here all of the details of the proposed rules, but this Lunch Tray post will give you a solid overview.)

After the release of the proposed rules, there was an open comment period in which I submitted my own letter to USDA outlining my top four concerns.  (You can read the full text of my letter here.)  In this post I want to tell you the outcome of those issues:

The Death of “Baked Flamin’ Hot Cheetos With Calcium?”

It the proposed rules, USDA said it hoped to “encourage consumption of whole foods or foods closer to their whole state . . . .”  by requiring that key nutrients in school snacks be “naturally occurring.”  For that reason, under the proposed rules, school snack foods had to fall into one of two categories: they either had to be a fruit, vegetable, dairy product, protein food, “whole-grain rich” grain product, or a “combination food” that contains at least 1⁄4 cup of fruit or vegetable; OR they had to contain 10% of the Daily Value (DV) of naturally occurring calcium, potassium, vitamin D, or fiber.

Might this be the end?

Might this be the end?

That was great news, of course.  We all want to see kids eating more whole fruits, whole grains and the like.  But after thinking about this proposed two-tier system, it occurred to me that packaged food companies could shoehorn their highly processed products into the second category simply by fortifying them with a natural ingredient.  In other words, couldn’t Frito Lay add nonfat dry milk powder to Baked Flamin’ Hot Cheetos and then claim they contain “naturally occurring calcium”?

For that reason, in my letter to USDA I advocated what I thought was a rather radical idea — getting rid of the “naturally occurring” standard altogether.  I wrote:

I recommend that USDA simply drop this second, nutrient-only-based category of permissible foods.  If only fruits, vegetables, dairy products, protein foods, whole grain rich foods and combination foods are offered to schoolchildren, then we can rest assured that they will certainly be consuming a wide variety of nutrients, including the four nutrients of special concern:  calcium, potassium, vitamin D, and fiber.

But since I didn’t see this idea put forth by any of the leading food policy groups I follow, I assumed my recommendation was such an outlier that it would never be considered by the agency.

Well, lo and behold, the USDA is getting rid of the fortification category — over a three year period.  The interim final rule states:

For the period through June 30, 2016, contain 10 percent of the Daily Value of a nutrient of public health concern based on the most recent Dietary Guidelines for Americans (i.e., calcium, potassium, vitamin D or dietary fiber). Effective July 1, 2016, this criterion is obsolete and may not be used to qualify as a competitive food;

(emphasis mine)

USDA made this change for a variety of reasons, but regardless of its motivation, starting in school year 2016-17, the ONLY competitive foods which may be offered to kids are fruits, vegetables, dairy products, whole grain rich foods, protein foods or combinations foods with at least a 1/4 cup of fruits or vegetables.  (And, by the way, before 2016, the fortification can be from any source, “naturally occurring” or not.)

Now I know the food industry isn’t going to just slink away from the lucrative school snack market, but given the rigorous standard that will go into effect in 2016, it seems to me that any processed foods still sold in schools after that date should no longer fall into the empty-calorie, “better-for-you” junk food category.  That’s cause for real celebration.

“A la Carte” Foods Get a Pass

“A la carte” foods are foods sold in the school cafeteria but in competition with the federally funded meal, such as items sold on a school cafeteria snack bar line.  Here in Houston ISD, I’ve long been distressed by some of the really supbar foods and beverages sold on our a la carte lines, and in my letter to USDA I urged the agency to “hold a la carte foods to the same nutritional standards as other any competitive food, regardless of whether they are also served on school menus.”

However, as was expected, the interim final rule states that an item sold on a cafeteria snack bar line is exempt from all of the nutrition standards we’ve been discussing above, so long as those foods are “sold on the day that they are offered as part of a reimbursable meal, or sold on the following school day.”

My concern about this loophole is that it might encourage school districts to keep what some call “carnival food” — e..g, pizza, burgers, hot dogs and fries — on their federal school meal menus, in part to preserve their ability to sell those items on a rolling basis on their a la carte lines.  And when those items are available a la carte, it means that many kids will make their lunch from them on a daily basis, and without the accompanying and healthful fruits, vegetables and dairy they’d get in the federal meal line.

But on this question, I’m open to input from school food service workers and other experts in the field.  Do you think my concerns are justified?  Or do you think the recent overhaul of the federal school meal regulations will automatically result in relatively healthful a la carte entrees?

Sugary Sports Drinks Are Out — But Diet Sports Drinks Are In

The next issue I raised had to do with sports drinks.  USDA was considering two different calorie caps for certain “other beverages” sold in high schools: either 40 calories per 8-ounce serving or 50 calories per 8 ounces.  Those 10 calories made all the difference to sports drinks manufacturers since, according to USDA:

The higher 50 calorie limit would permit the sale of some national brand sports drinks in their standard formulas.  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.

I urged USDA to choose the lower, 40-calorie cap as studies indicate that children are drinking sugar-sweetened sports drinks with greater frequency and in greater amounts than ever before, yet are not engaged in more physical activity.

I was pleasantly surprised to see that USDA chose the lower cap, which would have the effect of banning the highest-calorie versions of sports drinks.  However, beverage companies have reformulated– or likely soon will reformulate –diet or reduced-calorie versions of their sports drinks to continue to be able to sell to schools.  Whether you regard this as a victory depends how you feel about making non-nutritive sweeteners available to kids on a widespread basis.  (You already know what I think about that.)

Exempt Food Fundraisers – Up to the States

Finally, USDA offered two schemes for regulating the use of junk food in school fundraisers.  One proposal left it entirely up to the states to determine how often such exempt fundraisers can take place, and the other allowed some USDA oversight.  Because I have seen firsthand here in Houston ISD how fundraisers selling junk food can have a real and negative impact on student health, I endorsed the second approach.

Instead, USDA left this issue up to the states, with the vague caveat that such fundraisers must be “infrequent” along with a statement that the agency expects that “the frequency of such exempt fundraisers . . .  [will] not reach a level to impair the effectiveness of the competitive food requirements in this rule.”

My concern is that in this era of draconian state education budget cuts (here in Texas, we rank second to last in per-student spending), state agencies, under pressure from cash-strapped districts, might be far too liberal in allowing these exempt — but often quite lucrative — fundraisers.

Only time will tell, and I’ll have more to say about this knotty issue in a future post.

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{ 9 comments… read them below or add one }

Orell Fitzsimmons July 2, 2013 at 1:12 pm

I wonder if the new rules will stop what we saw last school year at Almeda Elem.

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Tina July 2, 2013 at 1:33 pm

*My concern about this loophole is that it might encourage school districts to keep what some call “carnival food” — e..g, pizza, burgers, hot dogs and fries — on their federal school meal menus, in part to preserve their ability to sell those items on a rolling basis on their a la carte lines. And when those items are available a la carte, it means that many kids will make their lunch from them on a daily basis, and without the accompanying and healthful fruits, vegetables and dairy they’d get in the federal meal line.

But on this question, I’m open to input from school food service workers and other experts in the field. Do you think my concerns are justified? Or do you think the recent overhaul of the federal school meal regulations will automatically result in relatively healthful a la carte entrees?*

As a lunch lady in a middle school, I can tell you by keeping pizza, hamburgers, hot dogs off the menu’s will just have kids go hungry. I can’t tell you how many times a child will walk away and not eat because we ran out of what they wanted. As far as making them eat healthy..I completely as a Mom get where you are coming from..as a lunch lady…I can force them to put an apple on their tray..but I can’t force them to eat it. Sadly, I cannot tell you how much fruit (and we have daily, apples, oranges and pears) ends up in the garbage. The teachers tell me the kids walk right past the garbage and throw it away before they get to their tables.

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Bettina Elias Siegel July 3, 2013 at 8:50 am

Tina: SIGH. I know what you’re telling me is true, but do you think there’s an answer here? Do you think anything can wean kids off those foods, or at least encourage them to try other foods along with those standbys? Do you think nutrition education in the classroom, “new food boosters” in the cafeteria, food sampling programs or getting student input on new menu items would help at all? I’d love your take.

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Lunch Lady Jane Doe July 2, 2013 at 2:00 pm

This is how we stop a la carte entrees cannibalizing our meal program:

At high school, we price our entrees the same as our meals, so that it behooves the student to take a meal instead of just the entree (i.e. a complete meal (entree, two 1/2 fruit, 1/2 cup veg, trip through salad bar, and milk) is $2.00 … a deli turkey wrap is $2.00.

At elementary, students may not purchase just the entree — they must purchase the meal, and then they may purchase a second entree.

Most schools DO NOT want to sell more a la carte than meals because that directly impacts our commodity entitlement funding for the next year. The less meals we serve, the less commondity funding we get.

Plus, my school gets the economically disadvantaged additional $0.15/meal in addition to my regular reimbursement AND my $0.06/meal for meeting the HHFKA guidelines. I want — I NEED — my students to select a meal.

My biggest worry with these rules … fundraisers. No way I can compete with the cheerleaders, chess club, fill-in-the-blank club selling pizza, pop, and candy bars at the same time I’m serving lunch. The unintended consequence could be more fundraising food sales on campus instead of fewer.

I’m also really concerned about how the food and nutrient rules are difficult to explain and enforce which means selling on the “black market” gets easier. The Competitive Food Rules need to be clear, simple and universal to all food sold on campus during the school day — even for fundraisers.

Finally, compliance record-keeping and noncompliance penalties – the language in this section is vague. Proposed language states that the state agency could write corrective action to the school food authority. The school food authority should not be held responsible for competitive food violations conducted outside the breakfast/lunch program, and this should be clearly stated in the language. The last thing I want to be is the “food police”.

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Bettina Elias Siegel July 3, 2013 at 8:46 am

Lunch Lady Jane:

On the issue of a la carte, I get very confused. ALC undercuts the federal meal program, just as you say, and I’ve been told by experts that in districts in which ALC is dropped, participation goes up. But when I advocate that we do the same here in Houston ISD, I’m told by the powers that be that the program simply cannot break even without it. ??? Your thoughts on that would be appreciated.

As for fundraisers – you’re preaching to the choir! Here in HISD, veritable “food courts” are set up at lunch at various high schools to sell junk food as fundraisers, and principals not only turn a blind eye, they’re enthusiastic about them due to the revenue that is brought in — so much revenue that hefty fine from the TX Dept. of Agriculture is just the cost of doing business.

These sales also undercut all the good work that HISD is trying to do in Food Services. For example, HISD is about to get rid of all ice cream sold ALC and the response I heard from one parent was, “Well, tou just made the PTO very happy.” In other words, ice cream fundraising tables are going to go up at every school! Sigh.

BTW, I’m about to write a post about a recent incident here in HISD where the state tried to penalize illegal competitive food sales — what went down will not make you happy…

Thanks very much for commenting here.

- Bettina

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Lunch Lady Jane Doe July 3, 2013 at 9:20 am

When I put the new ALC procedures and prices into our high school lunchrooms, my participation did increase. However, I also did some major menu changes to go along with the removal of the ALC. For example, our high school menu has 10-12 entree choices a day, 2 hot vegetable choices + fresh veggie salad bar, and 6-8 fruit choices EACH DAY — high school students respond to feeling empowered and trusted to make choices. They barely even noticed all the ALC was gone — most were excited that anything they choose made a meal! Removing ALC really helped eliminate the overt identification of the “free lunch kids” because everyone could make a choice from all the items offered. More importantly, my high school participation went from 46% to 68% in one year. So, yes, IMHO, the experts are right.

But it was so scary to make that change — my field supervisors kept trying to tell me what a mistake I was making. However, it really did work … almost too well. I actually have such a huge cash surplus at the end of this school year that I have to spend millions of dollars to not be in violation of the three-month-expenses rule. For us, that extra 6 cents really added up quickly — our particiation at high school did drop about 5% with the new HHFKA, but our elementary went up from 78% to 82%. :-)

Now, I do still sell snack food items, bottled water, etc, but we have followed AHG guidelines since 2010 — actually, I made ours stricter with no added caffeine allowed and only 20 calories per 8oz. I sell these items because if I didn’t, the high school kids would get them from somewhere else like the corner store, etc. And there they are more likely to choose a much more high calorie, sugar-laden choice. I operate a $21 budget, and my profit from snack food items is only about $60,000 a year.

At my elementary schools, we only offered 100% juice and bottled water. Some schools offer baked chips once or twice a week, but at all schools students may not purchase ONLY snack items. They must get a school lunch (or have one packed from home) to purchase snack items.

Thanks for letting us lunch ladies have input, too! I keep saying if we (USDA, Food Service, Parents, Teachers, Kids) listen to each other and work together, this can be done.

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Gillian July 2, 2013 at 2:24 pm

Excellent summary, Bettina. Thank you so much for sharing both the details of this critical issue and your opinions. I am particularly looking forward to hearing more on the a la carte issue. – Gillian

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Martha July 3, 2013 at 8:39 am

Well put, lunch lady jane doe, when we strive to meet all of the regulations that our placed on our school meals programs and then the fundraisers can sell whatever they want our goals are completely defeated. We are in a no win situation.

Bettina I so appreciate all you do in support of child nutrition, your statements were spot on.

Thanks.

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Maggie July 4, 2013 at 8:16 am

I’ll add my comment – showing circumstances vary widely. I’m mainly familiar with the elementary schools in the district that I work at. The only a la carte items in elementary schools are: half-pint milk (skim unflavored, 1% unflavored, skim chocolate) – purchase to go with lunch brought from home or purchase second milk with meal. 4 ounce 100% juice, to go with meal from home, for students who cannot have milk. At one of the 6th grade only schools, bottled water – this option was requested by students/parents at that school.

There are no vending machines and no (in-school during school hours) food fundraisers.

The main meal choices are limited – there is one main dish daily and a chef salad as an alternative to that main dish. Side dishes offer more choices, a variety of fruits and vegetables daily. No “bars” for fruits and veggies, but students can return for more fruits and (non-starchy) vegetables if they wish. Many take advantage of that.

Bettina, I’d like to comment as well on your reply to Tina. I do think that any and all of the ideas you mentioned to encourage healthy eating would be great. But, that always leads back to the question of who, when, where, funding…all of those questions. My thought is that until society changes, it will be a up-hill battle to convince children that the healthful choices they see at school cafeterias are great when outside of school many are seeing and eating the less-than-healthful choices in many of the ways we’ve talked about here before: classrooms, athletic practices, homes because parents are busy, don’t have access to fresh foods and more.

Toss in the fact that, at the end of the day, parents and families truly do have a right to decide how to eat and what to eat and what to feed their children, and it can be a fine line to walk to try to promote and educate about what is “best”.

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