Will Some States Try to Undermine the “Smart Snacks in School” Rules?

by Bettina Elias Siegel on July 23, 2014

When the “Smart Snacks in School” rules went into effect on the first of this month, it was good news for the health of school children. These rules, which were mandated by the Healthy, Hunger-Free Kids Act, represent the first significant federal effort to regulate “competitive food,” i.e., the foods and drinks sold to kids during the school day through outlets such as vending machines, school stores, cafeteria “a la carte” (snack bar) lines and school fundraisers.

But even as the federal government took a big step forward in improving school snacks, it appears that some states may be determined to undermine these rules in any way they can.

Here’s the background.  In recognition of the long tradition of food-based school fundraisers such as the bake sale (and likely also to minimize backlash from cash-strapped school districts), the USDA planned to have a provision in the Smart Snacks rules allowing each state to determine a maximum total number of “exempt” school-sponsored fundraisers per year, i.e., fundraisers held during the school day at which junk food can legally be sold.

While the Smart Snacks rules were still in draft form, the USDA floated two competing proposals for how this would work in practice. In the first proposal, states would be required to seek USDA approval of whatever maximum number they chose, while in the second proposal, states would be given complete discretion over the number, with no federal oversight.

In my own letter to the USDA commenting on the draft rules, I wrote:

Here in HISD and in many districts around the country, it is not uncommon to see on high school campuses numerous, daily fundraisers conducted during the lunch hour, most of which offer foods of poor nutritional value.  These sales greatly undermine participation in the federally subsidized school meal program, have a real and negative impact on student health and they undercut whatever nutrition information students are receiving in the classroom.

I understand that USDA will allow states to set their own limits on fundraisers offering foods and beverages which do not meet its proposed nutritional guidelines.  However, I’m concerned that cash-strapped school districts may successfully prevail upon states to grant liberal limits with respect to such fundraisers.  It is my recommendation, therefore, that the second of USDA’s two options be adopted, i.e., the option which allows for some USDA oversight on the frequency of such exempt, food-based fundraisers.

Nonetheless, despite receiving many comments like mine, the USDA ultimately chose to give states complete autonomy over fundraiser exemptions.  So the Smart Snacks rules now provide that if a state takes no action, the number of exempted fundraisers will be zero. And for states wishing to set their own maximum number of exempt fundraisers per year, the USDA has issued a guidance document in which it cautions:

… it is expected that State agencies will ensure that the frequency of such exempt fundraisers on school grounds during the school day does not reach a level which would impair the effectiveness of the Smart Snacks requirements.

From my own (admittedly cursory) research, it appears that only a handful of states have yet issued policies setting the number of maximum allowable exempt fundraisers for this coming 2014-15 school year.  A few states (Texas, Arizona and Michigan) have affirmatively set the number at zero, even though this is already the baseline when no state action is taken. Other states have conducted surveys of school administrators to find an acceptable number; based on such feedback, Indiana will allow two exempt fundraisers per school per year and Idaho will allow ten per school per year.

And then there’s Georgia.

fried chicken junk food competitive greasy

Even after new federal snack rules are in effect, will this be a weekly sight in Georgia schools?

Earlier this week, Stacy Whitman of School Bites alerted me and a few other food advocates to this rather alarming press release from the Georgia Board of Education, in which Georgia state officials decry the Smart Snacks rules as “federal overreach” and, in a clear effort to thumb their noses at the USDA, indicate that they plan to set the number of exempt fundraisers at 30 per school per year (which comes out to, approximately, one junk food fundraiser per school per week).  If that weren’t troubling enough, the state also plans to evaluate on a case-by-case basis any school’s request to hold even more junk food fundraisers per year.  (You can listen to Georgia state officials criticizng the Smart Snacks rules in this local news segment.)

It remains to be seen if other states, also chafing at what they consider to be federal “nanny state” interference, will follow Georgia’s lead and set their number of exempt fundraisers at the same — or even higher — level.  It also remains to be seen if the USDA, in keeping with its “expectation” that schools won’t use this loophole to effectively gut the Smart Snacks rules, will attempt to do anything about it.

Meanwhile, for an excellent discussion of how parents and other advocates can combat efforts like Georgia’s to unreasonably exploit the exempt fundraiser loophole, be sure to check out Nancy Huehnergarth’s excellent new post here.

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{ 6 comments… read them below or add one }

Whitney Meagher July 24, 2014 at 8:26 am

We (the National Association of State Boards of Education) have been tracking this and posting information as we can on our State School Health Policy Database (http://www.nasbe.org/healthy_schools/hs/bytopics.php?topicid=3115&catExpand=acdnbtm_catC). So far, we know that 26 states are choosing not to create an exemption policy (for four of those, it is because they already have policies in place that meet the Smart Snacks rule for fundraisers). Eleven states have created exemption policies, which vary greatly.

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Bettina Elias Siegel July 24, 2014 at 8:38 am

Whitney: Wow- I was looking all night for that data! Not sure why it didn’t come up in my searches, but thanks so much for posting it here.

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Stacy @School-Bites.com July 24, 2014 at 10:18 am

YAY for all the states that are setting firm limits on junk-food fundraisers that contribute to child obesity and compromise student health! There are MANY great ways to raise funds without compromising student health (think read-a-thons, etc.). Better yet, schools can raise dollars while promoting healthy eating and physical activity (walk-a-thons, 5Ks, etc.). As for Georgia and its in-your-face decision to allow 30+ junk-food fundraisers a year? Considering that Georgia ranks #2 in the nation for child obesity, it seems extremely reckless and very sad for the kids, parents and food service professionals who deserve better. Thanks for bringing attention to this important topic, Bettina!

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Lunch Lady July 24, 2014 at 2:07 pm

Tennessee is allowing 33 according to some people at ANC last week.

As for Georgia, they have one of THE best people in the world leading their State Agency, Nancy Rice. I cannot imagine she is not going to be an advocate of fewer exemptions.

Just a small point about smart snacks … I’m equally concerned about the elimination if the time and space restrictions since I will now be competing against school vending machines with sugar free Redbull, low carb Monster, and diet MT dew. All those items don’t need an exemption to be sold … I shudder to think how many students with grab a couple Redbulls instead of a school lunch. Now, in all fairness, I could sell those items, too. I am choosing not to do so; I know for a fact that my school vending machines, school stores, and school clubs will be selling them.

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Whitney Meagher July 24, 2014 at 2:40 pm

The Tennessee State Board of Education is actually doing their final vote on their rule at tomorrow’s meeting. The proposal allows 30 days of exempt fundraisers.
You can read the proposal here, Item H in the third section, “Action Items (Final Reading)”. http://www.tn.gov/sbe/2014_July.shtml

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Casey July 24, 2014 at 4:06 pm

Sounds like a race to the bottom for kids’ health. :(

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