Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Revisions in the WIC Food Packages, 68966-69032 [E7-23033]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food and Nutrition Service

[Federal Register Volume 72, Number 234 (Thursday, December 6, 2007)]
[Rules and Regulations]
[Pages 68966-69032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23033]



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Part II





Department of Agriculture





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Food and Nutrition Service



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7 CFR Part 246



 Special Supplemental Nutrition Program for Women, Infants and Children 
(WIC): Revisions in the WIC Food Packages; Interim Rule

Federal Register / Vol. 72, No. 234 / Thursday, December 6, 2007 / 
Rules and Regulations

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

[FNS-2006-0037]
RIN 0584-AD77


Special Supplemental Nutrition Program for Women, Infants and 
Children (WIC): Revisions in the WIC Food Packages

AGENCY: Food and Nutrition Service, USDA.

ACTION: Interim rule.

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SUMMARY: This interim rule revises regulations governing the WIC food 
packages to align the WIC food packages with the Dietary Guidelines for 
Americans (DGA) \1\ and current infant feeding practice guidelines of 
the American Academy of Pediatrics, better promote and support the 
establishment of successful long-term breastfeeding, provide WIC 
participants with a wider variety of food, and provide WIC State 
agencies with greater flexibility in prescribing food packages to 
accommodate participants with cultural food preferences.

DATES: Effective Date: This rule is effective February 4, 2008.
    Implementation Date: State agencies must implement the provisions 
of this rule no later than August 5, 2009.
    Comment Date: To be considered, comments on this interim rule must 
be postmarked on or before February 1, 2010.

ADDRESSES: The Food and Nutrition Service (FNS) invites interested 
persons to submit comments on this interim rule. Comments may be 
submitted by any of the following methods:
     Federal eRulemaking Portal: Go to https://
www.regulations.gov, select ``Food and Nutrition Service,'' from the 
agency drop-down menu, then click ``Submit.'' In the Docket ID column, 
select FNS-2006-0037 to submit or view public comments and to view 
supporting and related materials available electronically. Information 
on using Regulations.gov, including instructions for accessing 
documents, submitting comments, and viewing the docket after the close 
of the comment period, is available through the site's ``User Tips'' 
link.
     Mail: Send comments to Patricia N. Daniels, Director, 
Supplemental Food Programs Division, Food and Nutrition Service, USDA, 
3101 Park Center Drive, Room 528, Alexandria, Virginia 22302, (703) 
305-2746.
    Comments submitted in response to this interim rule will be 
included in the record and will be made available to the public. Please 
be advised that the substance of the comments and the identities of the 
individuals or entities submitting the comments will be subject to 
public disclosure. FNS will make the comments publicly available on the 
Internet via https://www.regulations.gov. Information regarding the 
interim rule will be available on the FNS Web site at https://
www.fns.usda.gov/wic. A regulatory impact analysis has been prepared 
for this rule. It follows this regulation as an Appendix.

FOR FURTHER INFORMATION CONTACT: Debra Whitford, Chief, Policy and 
Program Development Branch, Supplemental Food Programs Division, 
Supplemental Food Programs Division, Food and Nutrition Service, USDA, 
3101 Park Center Drive, Room 528, Alexandria, Virginia 22302, (703) 
305-2746, or Debbie.Whitford@fns.usda.gov.

SUPPLEMENTARY INFORMATION: 

I. Overview

    This interim rule implements the first comprehensive revisions to 
the WIC food packages since 1980. These revised food packages were 
developed to better reflect current nutrition science and dietary 
recommendations than do current food packages, within the parameters of 
current program costs.

II. Background

    The WIC food packages provide supplemental foods designed to 
address the nutritional needs of low-income pregnant, breastfeeding, 
non-breastfeeding postpartum women, infants and children up to five 
years of age who are at nutritional risk. WIC food packages and 
nutrition education are the chief means by which WIC affects the 
dietary quality and habits of participants. WIC is a unique nutrition 
assistance program in that it also serves as an adjunct to good health 
care during critical times of growth and development to prevent the 
occurrence of health problems and to improve the health status of 
Program participants. WIC was never intended to be a primary source of 
food, nor of general food assistance. Rather, WIC food benefits are 
scientifically-based and intended to address the supplemental 
nutritional needs of a specific population--low income pregnant, 
breastfeeding, non-breastfeeding postpartum women, infants and children 
up to five years of age who are at nutritional risk. In addition to 
WIC, the Food and Nutrition Service (FNS) administers a variety of 
other complementary nutrition assistance programs that work together to 
provide a more complete diet to low-income persons. Low-income families 
can, and frequently do, receive benefits from more than one of these 
programs. The largest of these programs, the Food Stamp Program, 
provides general food assistance intended to increase the food buying 
power of low-income households.
    The ability of the WIC food packages to reinforce nutrition 
education messages provided to participants is critical to affecting 
the dietary quality and habits of infants, children and mothers served 
by WIC. The nutrition education provided by WIC enables participants to 
make informed decisions in choosing foods that, together with the 
supplemental foods contained in the WIC food packages, can meet their 
total dietary needs. The intent is to help participants continue 
healthful dietary practices after leaving the Program.
    Since the creation of the WIC Program in the 1970s, and the last 
major revision of the WIC food packages in the early 1980's, much has 
been learned about the nutritional needs of Americans, including WIC's 
target population of pregnant and postpartum women, infants, and 
preschool aged children. In recent years the ability of the WIC Program 
to address the supplemental nutritional needs of WIC participants 
through its food packages and nutrition education has received growing 
attention. Significant interest in updating the food packages based on 
new information about the needs of low-income, culturally diverse 
women, infants, and children has been voiced by WIC Program 
administrators, the medical and scientific communities, advocacy 
groups, and Congress.

III. General Summary of Comments Received on the Proposed Rule To 
Revise the WIC Food Packages

    The Proposed Rule to revise regulations pertaining to the 
supplemental foods provided through the WIC Program was published in 
the Federal Register on August 7, 2006 (71 FR 44784), with a 90-day 
comment period. The proposed rule largely reflected recommendations 
made by the National Academies' Institute of Medicine (IOM) in its 
Report ``WIC Food Packages--Time for a Change,'' \(2)\ with 
modifications found necessary by FNS to ensure cost neutrality.
    A total of 46,502 comment letters were received on the Proposed 
Rule; of those, 23,908 were form letters. A total of 38,257 letters 
were received from program participants; 18,080 of those were form 
letters. The remaining comment letters were submitted from a

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variety of sources, including WIC State and local agencies and Indian 
Tribal Organizations, the National WIC Association (NWA), professional 
organizations and associations, advocacy groups, healthcare 
professionals (including universities), members of Congress, the food 
industry, vendors, farmers, and private citizens.
    In general, the proposed changes to the WIC food packages garnered 
broad support from public commenters. A total of 21,042 commenters 
(8,293 of these form letters) made explicit statements regarding the 
merits of the proposed rule as a whole. Of those, 20,438 (8,292 of 
which were form letters) expressed support for the majority of the 
proposed revisions. A total of 604 commenters (1 of these a form 
letter) disagreed with the majority of the proposed rule provisions--
these letters were primarily from participants who did not want to see 
any changes to the current WIC food packages. FNS considered all 
comments without regard to whether they were provided by a single 
commenter or repeated by many. Importance was given to the substance or 
content of the comment, rather than the number of times a comment was 
submitted.

IV. Discussion of the Proposed Provisions

    The following is a discussion of the major provisions set forth in 
the proposed rule, a brief summary of the comments received that 
addressed these issues, and FNS' rationale for either modifying each 
section in the interim rule, or retaining its provisions as initially 
proposed. Provisions not addressed in the preamble to this interim rule 
did not receive significant or substantial public comments and are 
retained in this interim rule as proposed.
    This preamble articulates the basis and purpose behind significant 
changes from the August 7, 2006, proposal. The reasons supporting 
provisions of the proposed regulations were carefully examined in light 
of the comments to determine the continued applicability of the 
justifications. Unless otherwise stated, or unless inconsistent with 
the interim rule or this preamble, the rationales contained in the 
preamble to the proposed regulations should be regarded as a basis for 
the interim rule. Therefore, a thorough understanding of the rationales 
for the interim regulations may require reference to the preamble of 
the August 7, 2006 proposal (71 FR 44784).

A. Definitions

    1. Participation. FNS proposed to revise the definition for WIC 
``participation'' to include the number of breastfeeding women who 
receive no supplemental foods or food instruments but whose breastfed 
infant(s) receives the supplemental foods or food instruments. The 
definition means, therefore, that a partially breastfeeding woman who 
requests, after the sixth month postpartum, more than the maximum 
amount of formula allowed for a partially breastfed infant would no 
longer receive a food package but would continue to count as a WIC 
participant and receive other Program benefits and nutrition services 
(nutrition education, including breastfeeding promotion and support, 
and referrals to health and social services.) Thirty-two commenters (15 
form letters) were opposed to not providing a food package to partially 
breastfeeding women who request, after the sixth month postpartum, more 
formula than the maximum.
    The IOM recommended that a partially breastfeeding woman who 
requests, after the sixth month postpartum, more than the maximum 
amount of formula for a partially breastfed infant, no longer be 
certified for the WIC Program. However, FNS determined that this 
approach is incongruous with the definition of breastfeeding in WIC 
regulations at 7 CFR 246.2--the practice of feeding a mother's 
breastmilk to her infant(s) on the average of at least once per day. In 
WIC, this definition is used to determine Program eligibility, and 
allows all breastfeeding women, regardless of feeding pattern, to 
participate in the WIC Program, be counted as a breastfeeding woman, 
and receive supplemental foods, breastfeeding promotion and support, 
and referrals to health care. The definition recognizes that any 
breastfeeding, even if only on an average of once a day, provides some 
immunological and nutritional benefits that would otherwise not be 
provided to an infant. Rather than adopt IOM's recommendation in its 
entirety, FNS proposed to revise the definition for WIC 
``participation'' to include breastfeeding women who receive no 
supplemental foods or food instruments but whose breastfed infant(s) 
receives supplemental food or food instruments. Counting these women, 
although they are not receiving a food package, is consistent with the 
current practice of counting the infants of exclusively breastfeeding 
women. Therefore, a partially breastfeeding woman who requests, after 
the sixth month postpartum, more than the maximum amount of formula 
allowed for a partially breastfed infant would no longer receive a food 
package but would continue to count as a WIC participant and receive 
other Program benefits (nutrition education, including breastfeeding 
promotion and support, and referrals to health and social services). 
This would serve to meet the intent of IOM's recommendations within the 
context of WIC regulations.
    As recommended by some commenters, FNS clarifies that breastfeeding 
women who receive no supplemental foods or food instruments but whose 
breastfed infant(s) receives the supplemental foods or food instruments 
continue to be eligible to receive nutrition services, and breast pumps 
are a part of nutrition services. With this clarification, the 
definition of participation is retained in this interim rule as 
proposed at 7 CFR 246.2.
    2. WIC-eligible medical foods. FNS proposed to revise the 
definition for ``WIC-eligible medical foods'' to clarify that medical 
foods are designed for children 12 months and older and adults and that 
WIC-eligible medical foods are not conventional foods, drugs, 
flavorings or enzymes. A few commenters disagreed with the proposed 
definition for WIC-eligible medical foods stating that the definition 
as proposed would exclude infants from receiving certain medical foods 
that are appropriate for them such as modular formulas that are not 
nutritionally complete but add specific nutrients such as protein, fat, 
and carbohydrate. FNS acknowledges that certain medical foods exist 
that are appropriate for use by infants and that medically fragile 
infants should be included as a participant category in the WIC-
eligible medical food definition. Several other commenters believe that 
FNS should rely on Food and Drug Administration (FDA) expertise for the 
definition of medical foods since FDA is the regulatory authority for 
medical foods. FNS acknowledges FDA's role in the regulation of medical 
foods. However, specific requirements for the safety or appropriate use 
of medical foods have not yet been established by FDA.
    FNS agrees with commenter concerns that the proposed definition for 
WIC-eligible medical foods excludes infants as a participant category. 
Therefore, the proposed definition for WIC-eligible medical foods is 
revised in this interim rule to include infants as a participant 
category.

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B. General Provisions That Affect All WIC Food Packages

1. Food Lists
    The proposed rule would have continued to require State agencies to 
identify brands and package sizes that are acceptable for use in their 
States from among those authorized and to provide to local agencies a 
list of acceptable foods and their maximum monthly allowances in 
accordance with WIC requirements. This provision is retained in this 
interim rule at 7 CFR 246.10(b)(2)(i). A conforming amendment in this 
interim rule at 7 CFR 246.4 clarifies that a copy of the food list must 
be included in the State Plan.
2. Nutrition Tailoring
    Current FNS policy allows both categorical and individual nutrition 
tailoring of WIC food packages. Categorical nutrition tailoring is the 
process of modifying the WIC food packages for participant groups or 
subgroups with similar supplemental nutrition needs, based on 
scientific nutrition rationale and State established policies. The 
proposed rule would have prohibited categorical nutrition tailoring, 
but continue to allow individual nutrition tailoring based on the 
Competent Professional Authority's assessment of a participant's 
supplemental nutrition needs.
    A total of 528 commenters (of these, 505 were form letters) agreed 
with the proposal to eliminate State authority to categorically tailor 
food packages, stating that the careful balance achieved by the IOM's 
recommendations to revise the WIC food packages should be maintained. 
In contrast, 187 commenters (of these, 151 were form letters) were 
opposed to the provision, stating that States need the flexibility to 
propose modifications to food packages that respond to rapid changes in 
food industry, science, demographics, and other factors.
    As discussed at length in the preamble to the proposed rule, the 
revised food packages have the potential to address current nutrient 
inadequacies and excesses; discrepancies between dietary intake and 
dietary guidance; and current and future health-related problems in 
WIC's target population. The IOM was also charged with considering the 
cultural needs of WIC participants and its recommendations for 
revisions to the WIC food packages, and the proposed rule, reflect 
those considerations. The IOM had the resources and capacity to conduct 
an independent, rigorous scientific review of the nutritional needs of 
WIC participants in each category prior to recommending the quantities 
and types of WIC foods to address those needs in its Report.\(2)\ 
Because the IOM based the revisions to the WIC food packages on current 
nutrition science, FNS proposed that State agencies would no longer be 
authorized to categorically tailor food packages.
    FNS believes that State agencies will best be able to meet the 
nutritional needs of each WIC participant through nutrition assessment 
and individual tailoring of the food package. Therefore, the provision 
to disallow State agency proposals to categorically tailor WIC food 
packages is retained in this interim rule at 7 CFR 246.10(c). FNS 
clarifies that, in addition to having the authority to individually 
tailor food packages, State agencies continue to have the authority to 
make adjustments to WIC foods for administrative convenience and to 
control costs. Such adjustments may involve packaging methods, 
container sizes, brands, types and physical forms of WIC foods.
3. Cultural Food Package Proposals
    A total of 174 commenters (of these, 149 were form letters) were 
opposed to FNS' proposal to no longer consider WIC State agency 
requests for cultural food substitutions. Commenters cited the need for 
State agencies to have the flexibility to keep pace with demographic 
changes in the WIC population.
    FNS believes that the increased variety and choice in the 
supplemental foods in this interim rule provide State agencies expanded 
flexibility in prescribing culturally appropriate packages for diverse 
groups. Section 203(c) of Public Law 108-265 amended Section 17(c)(2) 
of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1786), by 
requiring the Secretary to conduct, as often as necessary, a scientific 
review of supplemental foods available under the program and to amend 
the foods, as needed, to reflect nutrition science, public health 
concerns, and cultural eating patterns. As such, future reviews of the 
WIC food packages by FNS will be used to determine the need for 
additional cultural accommodations. However, in response to requests by 
commenters to allow State agencies the flexibility to meet 
unanticipated cultural needs of participants, a new 7 CFR 246.10(i) has 
been added to this interim rule that allows State agencies to submit to 
FNS a plan for substitution of food(s) to allow for different cultural 
eating patterns. The criteria for submitting plans for substitutions 
for different cultural eating patterns and the criteria FNS will use to 
evaluate such plans are the same as those under current WIC regulations 
at 7 CFR 246.10(e).
4. Medical Documentation and Supervision Requirements
    Under the proposed rule, medical documentation would have been 
required for certain milk alternatives for children and women and for 
any supplemental foods authorized in proposed Food Package III. Under 
the proposed rule, medical documentation would continue to be required 
for any contract brand infant formula that does not meet the 
requirements of an infant formula as specified in Table 4 of 7 CFR 
246.10(e)(12) of the proposed rule, any non-contract brand infant 
formula, any exempt infant formula, or any WIC-eligible medical food.
    Under current WIC regulations, the technical requirements for 
medical documentation include:
     Brand name of the WIC formula prescribed;
     Medical diagnosis warranting the WIC formula;
     Length of time the prescribed WIC formula is medically 
required by the participant; and
     Signature (or name, if the initial documentation was 
received by telephone) of the requesting health care provider.
    Under the proposed rule, additional technical requirements would 
have been added as follows:
     Contact information for the participant's healthcare 
provider making the medical determination;
     Date of medical determination;
     Name of specific supplemental food(s) to be prescribed;
     Amount prescribed per day of WIC formula and/or 
supplemental foods;
     Qualifying condition that warrants the issuance of the 
specific supplemental food(s); and
     Length of time the specific supplemental food(s) is 
medically required.
    A total of 2,107 comment letters (1,945 of these were form letters) 
opposed the proposed medical documentation, primarily the documentation 
for children to receive soy-based beverage. Commenter's stated that the 
medical documentation requirement for soy-based beverage for children 
would create barriers to services and undermine FNS' efforts to provide 
foods that meet the cultural needs of participants. A small number of 
comments received from WIC staff primarily at the local level expressed 
concern that requiring medical documentation for the additional 
supplemental foods allowed in proposed Food Package III and requiring

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a prescribed amount per day is burdensome to participants, the medical 
community and WIC agencies.
    FNS understands the potential administrative impact of requiring 
medical documentation for the provision of supplemental foods in Food 
Package III. However, these medical documentation requirements were 
proposed to ensure that the participant's healthcare provider, licensed 
in the State to write prescriptions, has determined that the 
supplemental foods are not medically contraindicated by the 
participant's qualifying condition. Participants that receive Food 
Package III are medically fragile and should be under the care of a 
healthcare professional for the purpose of close medical supervision 
essential for the participant's overall dietary management. 
Participants that receive Food Package III have qualifying medical 
conditions that preclude or restrict their use of conventional foods. 
Requiring medical documentation to include the additional supplemental 
foods allowed in proposed Food Package III and requiring an amount 
prescribed per day will ensure that the participant's health care 
provider is aware that WIC is providing supplemental foods that the 
health care provider has determined are not medically contraindicated 
by the participant's qualifying medical condition. Requiring the health 
care provider to designate an amount of WIC formula and the WIC 
supplemental foods allowed in the participant's diet will help the 
Certified Professional Authority (CPA) in designing nutrition education 
and a food package prescription that is appropriate to the 
participant's medical needs.
    FNS acknowledges that some additional administrative tasks will 
occur because of medical documentation requirements for dairy 
alternatives. However, requiring medical documentation for soy-based 
beverage for children ensures that a child's health care provider is 
aware that the child may be at nutritional risk when milk is replaced 
by other foods. The DGA \(1)\ stress the importance of milk consumption 
in the development of bone mass for children. The IOM noted that while 
soy products may be an appropriate choice for children who cannot 
consume milk, soy should not be made available to satisfy participant 
preference in the absence of medical need. Therefore, the proposed 
provisions for medical documentation for certain milk alternatives for 
children and women and for any supplemental foods authorized in 
proposed Food Package III are retained in this interim rule at 7 CFR 
246.10(d). Proposed provisions related to revised medical documentation 
requirements that are not addressed in this preamble did not receive 
significant or substantial public comments and are retained in this 
interim rule as proposed.
5. Organic Foods
    A number of commenters asked FNS to allow organic products within 
the authorized categories of foods in the WIC food packages. FNS points 
out that some organic forms of WIC-eligible foods meet the nutritional 
requirements set forth in current WIC regulations and are therefore 
authorized; this interim rule continues to authorize organic forms of 
foods that meet minimum nutrition requirements described in Table 4 of 
7 CFR 246.10(e)(12). However, WIC State agencies are responsible for 
determining the brands and types of foods to authorize on their State 
WIC food lists. Some State agencies may allow organic foods on their 
foods lists, but this will vary by State. The decision may be 
influenced by a number of factors such as cost, product distribution 
within a State, and WIC participant acceptance.

C. Supplemental Foods and Food Packages

    Note: In the interest of clarity, specific food package issues 
are discussed according to food item rather than food package and 
then the food package categories are discussed. The order of some of 
the topics in this section is modified from the proposed rule for 
the purposes of discussion.

1. Fruits and Vegetables in Food Packages III Through VII
    The addition of fruits and vegetables to the WIC food packages was 
the most welcomed provision of the proposed rule across all commenter 
categories. Of the total of 40,026 comment letters that addressed 
fruits and vegetables, 39,961 (22,935 of these form letters) were 
favorable. The majority of the few opposing comments were from 
participants who did not want to see any changes to the current WIC 
food packages.
a. Maximum Monthly Allowances
    The IOM recommended that fruits and vegetables be provided at 
levels of $10 per month for women and $8 per month for children. To 
achieve cost neutrality, the proposed rule would have established the 
value of fruit and vegetable vouchers at levels of $8 per month for 
women and $6 per month for children. A total of 3,166 commenters (2,940 
of these form letters) asked FNS to increase the cash-value vouchers to 
the level recommended by the IOM so that participants could receive one 
additional serving of fruits and vegetables per day. Commenters cited 
(1) the important benefits of fruits and vegetables in decreasing high 
blood pressure, heart disease, obesity, and cancer; (2) the generally 
low consumption of fruits and vegetables among WIC participants; and 
(3) the role that WIC can play in helping participants meet the 
DGA\(1)\ for fruit and vegetable intake. Commenters urged FNS to seek 
additional funds to provide the cash-value vouchers at the level 
recommended by IOM.
    A total of 692 commenters (562 of these form letters) asked FNS to 
consider, at a minimum, increasing the cash-value fruit and vegetable 
voucher to $10 for fully breastfeeding women to further enhance the 
attractiveness of this package and provide an additional incentive for 
women to breastfeed.
    While FNS is in full agreement with the IOM and commenters 
regarding the benefits of fruits and vegetables for WIC participants, 
it is important that revisions to the WIC food packages be cost neutral 
to protect the program's ability to serve the greatest number of 
eligible women, infants, and children. For fruits and vegetables, the 
IOM's intent was to move WIC participants towards some amount of 
increased fruit and vegetable consumption and, at the same time, 
reinforce the role of the WIC food packages in nutrition education. The 
proposed $8 and $6 cash-value fruit and vegetable voucher fulfilled 
this intent while ensuring cost neutrality. Therefore, the provision 
will be retained in this interim rule as proposed for children and 
women in Food Packages III-VI in Table 2 of 7 CFR 246.10(e)(10) and 
Table 3 of 7 CFR 246.10(e)(11). However, FNS has considered the 
benefits of increasing the value of the vouchers for fully 
breastfeeding women and has determined that a $2 increase can be 
accomplished while maintaining cost neutrality. This provision is 
therefore revised in the interim rule in Table 2 of 7 CFR 246.10(e)(10) 
and Table 3 of 7 CFR 246.10(e)(11) to reflect a cash-value voucher of 
$10 for fully breastfeeding women in Food Packages III and VII.
    Thirty commenters (23 of which were form letters) preferred that a 
set amount of fruits and vegetables be authorized per month, e.g., 3 
pounds for a child, in lieu of a cash-value voucher, for administrative 
ease and to control costs. FNS disagrees with this approach. A voucher, 
rather than a more narrowly defined fruit and vegetable option, offers 
flexibility, ensures participant access, and minimizes costs of

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compliance by administrative agencies and WIC-approved vendors. 
Allowing participants to choose a wide variety of fruits or vegetables 
is intended to increase consumption by accommodating individual and 
culturally-based preferences.
    (1) State agency responsibility to make available to participants 
at least two fruits and two vegetables from the category of fruits and 
vegetables in each authorized food package. FNS proposed that State 
agencies be required to make available at least two fruits and two 
vegetables to participants in Food Packages III-VII. A total of 487 
commenters (of which 418 were form letters) opposed the provision, 
believing that it undermines the IOM's recommendation to allow 
participants a wide variety of choices within the authorized fruit and 
vegetable options by authorizing State agencies to limit the number and 
variety of fruits and vegetables.
    FNS' intention with this proposed provision was to ensure 
participant choice among the fruit and vegetables authorized by the 
State agency by expanding current WIC regulations that require State 
agencies to make available at least one food from each group in each 
food package. As described in the preamble to the proposed rule, it was 
FNS' expectation that more than two varieties each of fruits and 
vegetables would be authorized by State agencies. Therefore, the 
proposed provision is clarified in the interim rule at 7 CFR 
246.10(b)(2)(ii)(B) to ensure its original intent to require State 
agencies to allow participants to use their cash value vouchers to 
purchase any WIC-eligible fruits and vegetables from among those 
authorized in Table 4 of 7 CFR 246.10(e)(12). This allows participants 
a wide variety of choices within the authorized fruit and vegetable 
options without restriction, in keeping with IOM recommendations. 
Further, the proposed provision at 7 CFR 246.10(b)(1)(i) is revised in 
this interim rule to disallow further restrictions on eligible fruits 
and vegetables.
    (2) Minimum vendor stocking requirement. Similarly, at 7 CFR 
246.12(g)(3)(i), FNS proposed that WIC authorized vendors carry a 
minimum of two varieties of fruits and vegetables to ensure participant 
choice at the retail level, while acknowledging that certain smaller 
vendors may not be able to stock as wide a variety of fruits and 
vegetables as larger vendors. A total of 472 commenters (418 form 
letters) disagreed with this provision, stating that setting a minimum 
vendor stocking requirement of two fruits and vegetables undermines the 
IOM recommendation to allow participants a wide variety of choices. Of 
these commenters, 269 (221 form letters) stated that State agencies 
should be allowed to specify minimum stocking requirements.
    FNS points out that the proposed provision authorizes State 
agencies to establish different minimums for different vendor peer 
groups, thus allowing State agencies the flexibility to work with 
vendors to provide the maximum number and variety of fruits and 
vegetables that are locally accessible, culturally appropriate and 
affordable. However, it is required that all authorized vendors must 
stock at least two varieties of fruits, two varieties of vegetables, 
and one whole grain cereal authorized by the State agency. Therefore, 
the provision at 7 CFR 246.12(g)(3)(i) is retained in the interim rule 
as proposed; however, a technical oversight in the proposed rule has 
been corrected by clarifying that authorized vendors must stock at 
least two different varieties of fruits and two different varieties of 
vegetables.
b. Inflation Adjustment
    FNS proposed an option to increase the value of the cash-value 
fruit and vegetable vouchers by a whole dollar increment. A total of 
124 commenters (75 of which were form letters) asked that FNS commit to 
a yearly inflation adjustment. FNS agrees with commenter that it is 
important to maintain the value of the vouchers over time. Cash-value 
vouchers will be set at $6 for children and $8 for pregnant and 
partially breastfeeding and $10 for fully breastfeeding women in the 
year in which the food package revisions take effect. This interim rule 
adds a provision at 7 CFR 246.16(j) to adjust the maximum value of the 
vouchers in whole dollar increments using the Bureau of Labor 
Statistics' Consumer Price Index for Fresh Fruits and Vegetables.
c. Minimal Restrictions on Authorized Fresh Fruits and Vegetables
    To improve the consumption of fresh fruits and vegetables and to 
appeal to participants of different cultural backgrounds, the proposed 
rule would have authorized a wide variety of choices within the 
authorized fruit and vegetable options. To ensure nutritional integrity 
and cost neutrality, some minimal restrictions were proposed, e.g., no 
herbs or spices, edible blossoms of flowers, fruit leathers and fruit 
roll-ups. The majority of commenters favored the provision to authorize 
a wide variety of fruits and vegetables; however, 9 commenters (1 of 
which was a form letter) stated the opinion that the fruit and 
vegetable selections should be limited to sources of priority 
nutrients.
    As stated in the Regulatory Impact Analysis that was published in 
the Federal Register as an appendix to the proposed rule, FNS 
considered alternatives to the proposed provision, including 
authorizing a more restrictive dark green and orange vegetable 
provision. This alternative was rejected because FNS believes that WIC 
food packages that reflect the IOM recommendations as closely as 
possible within the constraints of cost neutrality best reflect current 
scientific consensus on how to meet the supplemental dietary needs of 
WIC participants. The IOM chose not to emphasize the dark green and 
orange vegetable groups that tend to offer the highest concentrations 
of certain priority nutrients and instead recommended a fruit and 
vegetable option with few restrictions. Nutrition education offered by 
local WIC agencies will remain the primary method of encouraging 
participants to incorporate these high nutrient fruits and vegetables 
into their diets; under this interim rule participants remain largely 
free to choose the fruits and vegetables that they find most appealing.
    Thirteen commenters (2 of which were form letters) believe that FNS 
should simplify the proposed minimal restrictions to ease 
interpretation and implementation for participants, vendors, and staff. 
A total of 128 commenters (125 of which were form letters) asked FNS to 
allow State agencies flexibility to promote produce selections that 
come in standard packages with Universal Product Codes to minimize 
burden. As stated above, the nutrition education provided to 
participants is intended not only to encourage participant choice in 
the selection of fruits and vegetables, but also to provide information 
on shopping tips to obtain the maximum value of the voucher.
    FNS is aware that State agencies will need to provide training and 
technical assistance to participants and vendors in implementing the 
food package changes. State agencies generally update their food lists 
on a biennial basis which requires training for both participants and 
vendors. Recognizing the extensive changes that will be necessary as a 
result of this rule, FNS will assist State agencies on vendor training, 
participant education, and other implementation issues. FNS also 
encourages State agencies to work with their vendor associations as 
they develop their new State procedures, particularly in regard to the 
cash-value fruit/vegetable voucher.

[[Page 68971]]

d. Disallowance of White Potatoes
    Under the proposed rule, white potatoes would have been excluded 
from authorization in the WIC food packages. A total of 324 commenters 
(of these 291 were form letters) opposed the restriction of white 
potatoes. Twenty-four commenters stated that white potatoes should be 
included in the WIC food packages because they are versatile, 
economical and contain key nutrients. Thirteen commenters (1 form 
letter) from WIC State and local agencies stated that the exclusion of 
white potatoes would be hard to administer.
    The restriction of white potatoes, as recommended by the IOM, is 
based on the amounts suggested in the DGA\(1)\ for consumption of 
starchy vegetables; food intake data indicating that consumption of 
starchy vegetables meets or exceeds these suggested amounts; and food 
intake data showing that white potatoes are the most widely used 
vegetable. Therefore, this provision is retained in the interim rule as 
proposed in Table 4 of 7 CFR 246.10(e)(12).
e. Implementation of Fruit and Vegetable Options
    (1) Small dollar denomination of fruit and vegetable food 
instruments. In the preamble to the proposed rule, FNS encouraged State 
agencies to issue small denomination, i.e., $2, cash-value fruit and 
vegetable food instruments. The small denominations were encouraged so 
the participant could obtain small amounts of fresh produce at various 
times during the month, lessening the chance of food spoilage and 
waste. A total of 200 commenters (of which 133 were form letters) 
disagreed with FNS' recommendation to provide the fruit and vegetable 
value in small denominations. The majority of those in opposition were 
WIC State and local agencies who stated that they should be allowed to 
determine, in partnership with vendors, the most cost effective method 
to provide the fruit and vegetable food instrument. FNS clarifies that 
although State agencies are encouraged to provide the cash-value food 
instrument in small denominations for the reasons cited above and in 
the proposed rule, State agencies will determine the dollar 
denomination that is most beneficial to participants and cost effective 
given the State agency's infrastructure and environment.
    (2) Paying cash with the fruit/vegetable voucher. Nineteen 
commenters asked that participants be allowed to pay the difference 
when the purchase exceeds the value of the fruit/vegetable voucher. 
Under current rules at 7 CFR 246.12(c), State agencies must ensure that 
participants receive their authorized supplemental foods free of 
charge. Such a restriction is necessary with the ``traditional'' WIC 
food instrument which reflects a specific quantity of foods that a 
participant must receive. In contrast, the fruit/vegetable cash-value 
voucher reflects a maximum dollar allotment for the participant. 
Because it may be difficult to accurately estimate the exact purchase 
price of the fruit and vegetable selections, particularly when fresh 
and canned or frozen items are combined in one purchase, FNS concurs 
with commenters that participants should be allowed to pay the 
difference when the purchase of allowable fruits and vegetables exceeds 
the value of the fruit/vegetable voucher. This option would promote 
increased consumption of fruits and vegetables because participants 
would be more likely to utilize the full cash value, rather than 
partially redeem the voucher for fear of exceeding its cash value. The 
rule prohibits giving cash or credit to the participant for any unused 
portion of the fruit/vegetable voucher.
    (3) Benefit delivery. While most of the food package changes will 
be administered via existing State benefit delivery systems, the cash-
value fruit/vegetable voucher will require changes to WIC benefit 
delivery systems to accommodate a more open-ended benefit determined by 
a cash value rather than a fixed quantity of a specific food item. 
State agencies and vendors must modify operations and procedures to 
issue, transact, and process the redemption of a cash value benefit. As 
described in the proposed rule, options for benefit delivery include 
Electronic Benefit Transfer (EBT) and farmers' markets.
    (4) Farmers' markets. A total of 936 commenters (of which 170 were 
form letters) agreed with the provision to allow the fruit/vegetable 
cash-value voucher to be redeemed by farmers at farmers' markets. 
Eleven commenters disagreed with the provision. Many commenters 
suggested that FNS ``Do no harm to the WIC Farmers' Market Nutrition 
Program (FMNP),'' and that funding for the FMNP not be reduced or 
procedures established that would adversely affect its operation or 
effectiveness.
    FNS would like to clarify that the regulatory requirements for the 
FMNP are unchanged by this interim rule. Many commenters incorrectly 
believed that the proposal would have allowed FMNP coupons to be 
redeemed at authorized WIC vendors. This is not true; the proposal 
would have allowed the WIC fruit/vegetable cash-value voucher to be 
redeemed at farmers' markets.
    Of the commenters supporting the provision to allow farmers at 
farmers' markets to accept the fruit/vegetable cash-value voucher, 
clarification was requested on several issues--would State agencies be 
required to authorize farmers at farmers' markets if they do not 
currently administer the FMNP; can farmers at farmers' markets be 
treated as seasonal vendors and only be allowed to accept the fruit/
vegetable voucher; can the State agency enter into one contract with 
the farmer that includes requirements for both WIC and the FMNP; and, 
can farmers' markets be excluded from the WIC vendor monitoring and 
audit requirements?
    In response to commenter questions, this interim rule will not 
require State agencies to authorize farmers to accept the WIC fruit/
vegetable voucher. If a State agency chooses to authorize farmers at 
farmers' markets, it may modify its standard vendor agreement to 
address the unique circumstances of farmers' markets, as allowed by 7 
CFR 246.12(h)(2). For example, the farmer's market agreement may only 
allow the farmer to accept the fruit/vegetable cash-value voucher. In 
addition, the State agency can choose to enter into one agreement with 
the farmer that includes the requirements for both the WIC and WIC 
Farmers' Market Nutrition Programs. Further, farmers would be excluded 
from the vendor cost containment requirements. The farmers may also be 
excluded from the WIC monitoring requirements provided that they are 
included in the sample of farmers upon which the FMNP monitoring 
requirement is drawn. A new 7 CFR 246.12(v) has been added that 
specifies the requirements regarding the authorization of farmers at 
farmers' markets. The rule also adds definitions for cash-value voucher 
and farmer (the same as that used in the FMNP), and modifies the food 
instrument requirements to identify the provisions that do not apply to 
the cash-value voucher. As a result of the addition of the definitions 
of farmer and cash-value voucher, we have made conforming amendments to 
the definitions of ``compliance buy,'' ``employee fraud and abuse,'' 
``participants,'' ``participant violations,'' ``proxy,'' and 
``nutrition services and administration'' to include these new terms as 
appropriate.
    (5) Electronic Benefit Transfer (EBT). While the majority of State 
WIC agencies deliver benefits via paper checks or vouchers, 5 States 
are testing the feasibility of EBT and an additional State has adopted 
EBT statewide.

[[Page 68972]]

Although it will take a number of years to implement WIC EBT fully in 
all States, the fruit and vegetable benefit may provide opportunities 
for alternative forms of benefit delivery and allow some States to move 
toward limited electronic benefit processing prior to the 
implementation of EBT for all WIC purchases. In an effort to explore 
the range of possibilities for using existing commercial infrastructure 
to administer the fruit and vegetable benefit including WIC EBT 
smartcard and online solutions, commercial debit cards, and other 
technologies, FNS commissioned a study by the State Information 
Technology Consortium (SITC). Although the report is not yet final, 
preliminary findings indicate that for redemption of the fruit/
vegetable benefit, paper fruit and vegetable cash-value checks or 
vouchers appear to be the least costly and easiest to implement by 
State agencies and food vendors within a 12-month time period. The 
accountability for purchasing authorized fruits and vegetables remains 
the same as other food instruments--subject to training store clerks 
regarding eligible food items and State compliance monitoring.
    Debit type cards (EBT or credit/debit) with a magnetic strip offer 
potentially cost-effective solutions that leverage the widely available 
card payment infrastructure in the United States. Magnetic strip cards 
in volume can be purchased for less than 25 cents each. There are, for 
instance, many large and smaller food vendors that already accept 
credit card payments or accept EBT cards using a four digit Personal 
Identification Number (PIN). These vendors include most authorized WIC 
vendors. Focus groups with participants were favorable to this type of 
alternative because of lessened stigma while shopping and the ability 
to purchase foods incrementally rather than forfeiting some items with 
a paper instrument. Technical standards would need to be modified to 
enable card use only within authorized WIC vendor locations and there 
may be a need to define standards to facilitate retailer and/or EBT 
contractor changes to existing store equipment and software. The 
accountability for purchasing eligible foods only is similar to paper 
food instruments.
    WIC EBT solutions, on-line using magnetic-strip cards or off-line 
using smart cards, offer the greatest potential to ensure that only 
eligible fruits and vegetables are purchased with WIC cash-value 
vouchers, but it would be more costly for all stakeholders. These 
solutions would match each item scanned to a State list of authorized 
UPC's and/or Price Look-Up codes or PLUs. These solutions require 
additional investment by State agencies in cards, equipment, and 
maintenance of a much larger number of product Universal Product Codes 
and Price Look-Up (PLUs) codes for fresh produce. The fresh produce 
industry has taken steps to institute greater standardization of PLUs; 
however, the seasonal and local produce suppliers do not always have 
means to use PLUs effectively. The draft SITC report suggests that 
pilot design and development will be necessary to identify cost 
effective solutions that can be widely adopted by State agencies and 
authorized vendors.
2. Peanut Butter and Legumes
    The proposed rule would have added 18 ounces of peanut butter in 
Food Package V to improve the intake of several nutrients in the diets 
of pregnant and breastfeeding women. The proposed rule would also add 
legumes (dried beans/peas or peanut butter) in Food Package VI for 
postpartum women. Canned beans were proposed as an optional substitute 
for dry beans in Food Packages III-VII. Of the 3,091 comment letters 
that addressed these provisions, 3,085 commenters (21 form letters)--a 
large majority of whom were participants--were in favor of the proposed 
changes.
    Six commenters asked that FNS eliminate peanut butter in the food 
packages for children because of concerns about peanut allergies. The 
IOM advised that children should avoid eating peanut butter from a 
spoon for safety reasons until age 3, but recommended that peanut 
butter continue to be offered in the WIC food packages for young 
children from 1 to 5 years of age. IOM has advised FNS that assessing 
for allergies and tailoring a young child's food package based on such 
assessment, as is current practice in WIC, is appropriate.
    Therefore, the proposed peanut butter and legume provisions are 
retained in this interim rule as proposed.
3. Milk and Milk Alternatives
a. Maximum Monthly Milk Allowances
    The proposed rule would have decreased the maximum monthly 
allowances for milk in all food packages--for children and postpartum 
women, from 24 quarts to 16 quarts; for pregnant and partially 
breastfeeding women, from 28 to 22 quarts; and for fully breastfeeding 
women, from 28 quarts to 24 quarts of milk. Reducing the amount of milk 
provided through WIC is consistent with recommended limits on saturated 
fat, total fat, and cholesterol consumption put forth in the DGA,\(1)\ 
better aligns the amount of milk provided by WIC with the amounts 
recommended by the DGA\(1)\ and is consistent with the supplemental 
nature of the WIC Program.
    The majority of non-participant commenters were in favor of the 
proposed reductions in milk. A total of 2,088 non-participant 
commenters (1,874 of which were form letters) were supportive of the 
reductions, while 66 commenters were opposed. Commenters opposing the 
reductions cited the contribution of milk to intakes of priority 
nutrients for WIC participants, e.g., calcium, Vitamin A, and 
potassium. Seventeen commenters stated that the food package for 
postpartum women should be increased to the levels provided to pregnant 
and partially breastfeeding women. Six commenters urged FNS to maintain 
milk at current levels and increase funding for other proposed food 
package provisions.
    Comment letters from program participants reflected disappointment 
with the reductions in milk. A total of 1,831 comment letters were 
received from program participants who opposed the reductions; 225 
participants wrote in favor of the proposed reductions.
    FNS believes that the IOM set forth a series of science-based 
recommendations that, taken together, balance the various supplemental 
nutritional needs of participants. According to the IOM, amounts of 
milk provided by the WIC food packages need not exceed amounts 
recommended by the DGA.\(1)\ The proposed dairy levels for children (2 
cups/day) and pregnant and breastfeeding women (3 cups/day) provide at 
least 100 percent of the servings recommended by the DGA.\(1)\ The 
level for non-breastfeeding postpartum women is at least \2/3\ of the 
amount set forth by the DGA.\(1)\ The proposed maximum monthly 
allowance of milk allows a more balanced food package to provide the 
various high priority nutrients within cost constraints. Therefore, the 
proposed maximum allowances for milk are retained in this interim rule 
in Table 2 of 7 CFR 246.10(e)(10) and Table 3 of 7 CFR 246.10(e)(11).
b. Low-Fat Milk
    Under the proposed rule, only whole milk (not less than 3.25% milk 
fat) would have been authorized for children less than 2 years of age. 
For children two years of age and older and women, the proposed rule 
would have authorized only milk with no more than 2% milk fat to be 
consistent with current recommendations of the DGA

[[Page 68973]]

2005 to limit saturated fat and dietary cholesterol intake. A total of 
3,058 commenters (2,663 of which were form letters) agreed with the 
provisions as written; 222 (10 of which were form letters) were 
opposed. One hundred seventy of those opposed were program 
participants. A total of 1,379 commenters (1,338 of which were form 
letters) stated that the fat content of milk for children and women 
should be reduced even further--to no more than 1% of milk fat.
    Seventy-eight commenters (23 of which were form letters) asked FNS 
to allow the CPA the authority to prescribe the type of milk (whole 
milk or low fat milk) to participants, regardless of age or category, 
if medically necessary for such reasons as failure to thrive, 
underweight or overweight. FNS' position is that participants who have 
medical conditions that lead to a diagnosis of failure to thrive will 
likely be issued Food Package III. Therefore, to address commenters' 
concerns, this interim rule will authorize whole milk for children 1 
through 4 years of age and women in Food Package III, with medical 
documentation. As proposed, only milk with no more than 2% milk fat is 
authorized for children 2 years of age and older and women in Food 
Packages IV-VII. For these participants, nutrition education directed 
towards appropriate foods and food amounts should be provided for 
underweight or overweight participants. Nutrition education and 
individual tailoring of the food package within authorized parameters 
remain the most effective tools for WIC staff to use to help 
participants make appropriate choices based on their specific needs.
c. Lactose Free Milk
    Under the proposed rule, as long as a milk conforms to the FDA 
standard of identity for milk as defined by 21 CFR Part 131 and meets 
WIC Federal requirements, it would be an authorized milk in Food 
Packages IV, V, VI, and VII. Although not specified in the proposed 
rule, authorized milks that conform to the FDA standard of identity 
include, but are not limited to, calcium-fortified, lactose-reduced and 
lactose-free, acidified, and ultra-high temperature (UHT) milks. FNS 
clarifies that these products are authorized, and that lactose-free or 
lactose-reduced dairy products should be offered before non-dairy milk 
alternatives to those participants with lactose intolerance who cannot 
drink milk. FNS also clarifies that medical documentation is not 
required for participants to receive lactose-reduced and lactose-free 
milk.
d. Authorized Substitutions for Milk (Cheese, Tofu, Soy-Based Beverage)
    (1) Cheese. The proposed rule would have reduced the amount of 
cheese that may be substituted for milk to one pound per month for 
children and pregnant, postpartum and partially breastfeeding women, 
and two pounds for fully breastfeeding women. Reducing the amount of 
cheese that may be substituted for milk will reduce saturated fat and 
total fat intake by children age two and older and women consistent 
with the DGA\(1)\ recommendations. Amounts of cheese that exceed the 
maximum substitution amounts may be authorized with medical 
documentation in cases of lactose intolerance or other qualifying 
conditions.
    The majority of non-participant commenters were in favor of the 
proposed reduced cheese substitution amounts. A total of 754 non-
participant commenters (of which 589 were form letters) were supportive 
of the reduced substitution amounts, while 53 commenters were opposed. 
A total of 917 comment letters were received from program participants 
who opposed the proposed cheese allowances; 119 participants wrote to 
express support for the proposed amounts. Commenters opposing the 
cheese substitution amounts stated that cheese is culturally acceptable 
to most populations, and provides nutrients in a convenient and 
familiar way. Fourteen commenters asked FNS to maintain cheese at its 
current substitution levels and emphasize or require reduced-fat 
cheese.
    Reducing the maximum amount of cheese lowers the amount of 
saturated fat, total fat, and cholesterol in the WIC food packages. 
Within the context of the proposed revisions to the WIC food packages 
as a whole, the reductions in the current levels of cheese ensure that 
FNS is able to provide a more balanced nutrient intake for WIC 
participants while maintaining cost neutrality. Therefore, the proposed 
substitution levels for cheese are retained in this interim rule.
    (2) Soy-based beverage and tofu. To provide more flexibility for 
WIC State agencies and more variety and choice for WIC participants, 
the proposed rule would have authorized soy-based beverage to be 
substituted for milk for women in Food Packages V, VI and VII at the 
rate of 1 quart of soy-based beverage for 1 quart of milk up to the 
total maximum allowance of milk. The proposal also would have allowed 
calcium-set tofu to be substituted at the rate of 1 pound of tofu per 1 
quart of milk. A maximum of 4 quarts of milk could be substituted in 
this manner in Food Packages V and VI, and a maximum of 6 quarts of 
milk may be substituted in Food Package VII. Under the proposed rule, 
soy-based beverage and tofu would not be allowed as substitutes for 
milk for children in Food Package IV without medical documentation. The 
qualifying conditions may include, but are not limited to, milk 
allergy, severe lactose maldigestion, and vegan diets. Amounts of tofu 
that exceed the maximum substitution amounts may be authorized for 
women, with medical documentation, in cases of lactose intolerance or 
other qualifying conditions.
    A total of 8,932 commenters (4,615 form letters) were supportive of 
adding soy-based beverage and tofu to the WIC food packages as milk 
substitutes; 368 commenters (148 form letters) were not supportive. 
Comments received on medical documentation requirements for soy-based 
beverage for children and FNS' rationale for retaining the provision in 
this interim rule as initially proposed are discussed in section 
IV.B.4. of this preamble.
    As stated in the preamble to the proposed rule, Section 102 of the 
Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108-265) 
requires that nondairy beverages offered as an alternative to fluid 
milk in the National School Lunch Program and School Breakfast Program 
must be nutritionally equivalent to fluid milk and meet nutritional 
standards set by the Secretary of Agriculture. FNS, therefore, proposed 
that authorized soy-based beverage provide, at a minimum, the following 
nutrients:

Calcium.............................  276 milligrams (mg) per cup.
Protein.............................  8 grams per cup.
Vitamin A...........................  500 International Units (IU) per
                                       cup.
Vitamin D...........................  100 IU per cup.
Magnesium...........................  24 mg per cup.
Phosphorus..........................  222 mg per cup.
Potassium...........................  349 mg per cup.
Riboflavin..........................  0.44 mg per cup.
Vitamin B12.........................  1.1 mcg per cup.
 

    A total of 340 commenters (255 form letters) were opposed to the 
proposed minimum nutrient standard, stating that fortification at these 
levels is not necessary, and that soy-based beverage meeting the 
proposed minimum nutrition standard are not available in the 
marketplace. FNS believes that it is imperative for WIC and the school 
nutrition programs to use the same standards for defining allowable 
soy-based beverage as alternatives to fluid milk. Therefore, the 
proposed minimum nutrient standard for soy-based beverage

[[Page 68974]]

is retained in this interim rule. FNS is aware of at least one soy-
based beverage in the marketplace that meets these requirements and 
anticipates that the marketplace will respond with additional products. 
To the extent that the marketplace doesn't respond with additional 
products, other options, such as tofu, are available for participants.
    (3) Yogurt. The IOM recommended adding yogurt to the WIC food 
packages as a milk substitute for children and women. However, in order 
to maintain cost neutrality, the proposed rule did not include yogurt. 
Of the 758 commenters that addressed yogurt, 749 (617 form letters) 
disagreed with FNS' decision not to include yogurt. Commenters stated 
that yogurt provides priority nutrients, and is convenient, popular, 
and culturally acceptable to WIC participants.
    FNS agrees that yogurt would be a desirable dairy alternative to 
milk for WIC participants; however, the cost is simply prohibitive 
($413.9 million over 5 years). In addition, FNS has determined that WIC 
participants will be able to get the calcium provided by yogurt through 
other foods authorized in these revised food packages. Lactose-free and 
lactose-reduced dairy products, for example, are readily available in 
both urban and rural areas for those WIC participants with lactose 
intolerance. Calcium-set tofu and soy-based beverages are available to 
accommodate cultural preferences. Also, as noted earlier, a new 7 CFR 
246.10(i) has been added to this interim rule to allow State agencies 
the flexibility to meet unanticipated cultural needs of participants.
    It is important that revisions to the WIC food packages be cost 
neutral to protect the program's ability to serve the greatest number 
of eligible women, infants, and children. Therefore, FNS is unable to 
authorize yogurt in the WIC food packages in this interim final rule.
    However, FNS solicits comments from State agencies as they 
implement the provisions of this interim rule about the extent to which 
WIC participants would benefit from the addition of yogurt, and whether 
that addition would be achieved in a cost-effective way. In particular, 
we are interested in the impact of adding yogurt for women in Food 
Packages V-VII.
    FNS also solicits comments as to the feasibility of rebate 
agreements between yogurt manufacturers and individual States, so that 
yogurt could be provided to specific participant groups in the WIC 
program while maintaining cost-neutrality. State agencies are currently 
encouraged to explore the feasibility of cost containment systems, 
especially rebates, and to implement such a system where feasible for 
other WIC foods. In an effort to use their food grants more 
efficiently, 13 State agencies, which include 3 multi-State contracts, 
have rebate contracts for juice (frozen and shelf), infant juice and/or 
infant cereal. If FNS were to consider including yogurt as a WIC-
eligible food through future rulemaking, FNS would be interested in the 
following types of information:
     Which participant groups would most benefit from having 
yogurt included as part of their food package?
     Would States be able to secure rebates sufficient enough 
to add yogurt for all or certain participant groups while maintaining 
cost-neutrality?
    Finally, and as noted earlier, Section 203(c) of Public Law 108-265 
amended Section 17(c)(2) of the Child Nutrition Act of 1966, as amended 
(42 U.S.C. 1786), by requiring the Secretary to conduct, as often as 
necessary, a scientific review of supplemental foods available under 
the program and to amend the foods, as needed, to reflect nutrition 
science, public health concerns, and cultural eating patterns. As such, 
future reviews of the WIC food packages by FNS will be used to 
determine the need for yogurt.
4. Eggs
    Under the proposed rule, the maximum monthly allowance for fresh 
shell eggs would have been reduced from the current 2 or 2\1/2\ to 1 
dozen fresh shell eggs for children and women in Food Packages IV, V, 
and VI. For fully breastfeeding women in Food Package VII, the maximum 
monthly allowance was proposed at 2 dozen eggs.
    A total of 1,469 commenters (266 of which were form letters) 
addressed the proposed egg reduction provision. Of the 492 non-
participant commenters, 406 were in favor of the proposed reductions. 
Those opposing stated that eggs provide important nutrients at 
relatively low cost. Of the 1,009 program participants who commented, 
923 were opposed to the reduction in eggs.
    The proposed maximum monthly allowance of eggs is consistent with 
recommendations of the IOM \(3)\ and the DGA \(1)\ to reduce 
cholesterol. In addition, the IOM determined that protein is no longer 
a priority nutrient for the WIC population. Within the context of the 
proposed revisions to the WIC food packages a